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West v. Abendroth & Russell Law Firm

United States District Court, N.D. Iowa, Central Division

September 16, 2014

KATRINA C. WEST, Plaintiff,
v.
ABENDROTH & RUSSELL LAW FIRM, Defendant

Page 960

Katrina C West, Plaintiff, Pro se, Fort Dodge, IA.

For Abendroth and Russell, PC, Defendant: Michael C Richards, LEAD ATTORNEY, Davis, Brown, Koehn, Shors & Roberts, PC, Des Moines, IA.

OPINION

LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE.

Page 961

ORDER ON MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

I. INTRODUCTION

II. RELEVANT FACTS

III. SUMMARY JUDGMENT STANDARDS

IV. ANALYSIS

A. Does West's FDCPA Claim Fail as a Matter of Law?

1. The Alleged Violation

2. The Statutory Defense

B. Do West's State Law Claims Fail as a Matter of Law?

V. CONCLUSION

I. INTRODUCTION

On April 25, 2014, plaintiff Katrina C. West (West) filed a pro se lawsuit in the Iowa District Court for Webster County against Abendroth and Russell Law Firm (Law Firm) and a defendant identified as " Jill (last name omitted)." Doc. No. 3. In her state court petition, West asserted the following causes of actions based on a conversation between a Law Firm employee and an employee of a debt solutions company regarding West:

Count 1: Violation of the Fair Debt Collection Practices Act (FDCPA)
Count 2: Negligent hiring
Count 3: Negligent training
Count 4: Negligent retention
Count 5: Negligent supervision

Id. The defendant identified as " Jill (last name omitted)" was not served, did not appear and is no longer a party to this action.[1]

Page 962

On May 13, 2014, the Law Firm filed a notice (Doc. No. 1) of removal to this court, invoking federal question jurisdiction over Count 1 and (by implication) supplemental jurisdiction over the remaining, state law claims. This case was referred to me by order (Doc. No. 12) entered June 23, 2014, after the parties unanimously consented to trial, disposition and judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(3).

On July 29, 2014, the Law Firm filed a motion (Doc. No. 14) for summary judgment in which it contends that West's claims fail as a matter of law. West filed a resistance (Doc. No. 15) and the Law Firm filed a reply (Doc. No. 16). West then filed a response to the reply, without seeking leave of court to do so. Typically, the movant's reply is the final document either party may file with regard to a motion for summary judgment. See, e.g., Local Rule 56. While West's response to the reply could be stricken on that basis, I have elected to consider it in light of West's status as a pro se litigant. Neither party has requested oral argument. I find that oral argument is not necessary. See Local Rule 7(c). The motion is fully submitted.

II. RELEVANT FACTS

The following facts are undisputed for purposes of the Law Firm's motion:

On January 22, 2014, the Law Firm commenced a small claims lawsuit against West on behalf of Capital One Bank (USA), N.A. (Capital One). The lawsuit was filed in the Iowa District Court for Webster County as Case No. SCSC058505 (the Small Claims Action). In the Small Claims Action, which is public record, Capital One alleged that West owed a debt and costs totaling approximately $1,641.00.

West had previously retained Ultimate Debt Solutions (UDS) to assist her with financial matters and resolve her outstanding debts, including the debt that became the subject of the Small Claims Action. Throughout her relationship with UDS, West informed UDS about her financial situation, outstanding debts and other personal information. She also executed a power of attorney authorizing UDS to contact the Law Firm in order to settle or otherwise resolve the debt at issue. This power of attorney in favor of UDS was not submitted to the Law Firm. However, two powers of attorney West executed in favor of other debt solution companies were on file with the Law Firm.

On February 10, 2014, UDS representative Cathy Zebarth (Cathy) called the Law Firm and left a voicemail message stating she was calling on behalf of West. Later that day, Jill Christiansen (Jill) returned the call on behalf of the Law Firm. All incoming and outgoing collections-related calls at the Law Firm are recorded. This particular call was recorded as follows:

Cathy: Customer service, this is Cathy.
Jill: Cathy, my name is Jill. I'm returning your call from Abendroth and Russell Law Firm regarding your client, Katrina West.
Cathy: Yes. Okay, what did you need from me a social?
Jill: I need to verify social and date of birth.
Cathy: Social [omitted].
Jill: M-hmm.
Cathy: Date of birth [omitted].
Jill: Okay, and I do need to advise you that I am not an attorney, I'm a debt collector attempting to collect a debt, any information obtained will be for that purpose, and this ...

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