United States District Court, D. New Mexico
DENNIS W. MONTOYA, Plaintiff,
DANIEL J. O'FRIEL and O'FRIEL & LEVY, P.C., Defendants.
MEMORANDUM OPINION AND ORDER
DEFENDANTS' MOTION TO DISMISS (Doc. No. 9) (Motion),
Defendants Daniel J. O'Friel (O'Friel), an attorney,
and the law firm of O'Friel & Levy, P.C., (together
Defendants) ask the Court to dismiss the claim brought by
Plaintiff Dennis W. Montoya (Montoya) for violation of the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §
1692 et seq. See COMPLAINT FOR VIOLATION OF THE FAIR
DEBT COLLECTION PRACTICES ACT (Doc. No. 1) (Complaint).
Defendants argue they are not subject to the FDCPA because
they are not “debt collectors” as defined under
the FDCPA. Alternatively, Defendants contend that when
Montoya filed Chapter 7 bankruptcy, his claim became property
of his bankruptcy estate, and Montoya has no standing to
bring this claim. Defendants maintain that under the
Bankruptcy Code and the Federal Rules, the Chapter 7 Trustee
must prosecute this claim.
carefully considering all arguments, the Court finds that the
Complaint fails to sufficiently allege that Defendants were
debt collectors within the meaning of the FDCPA.
Consequently, the Court will dismiss the Complaint with
prejudice. Since the claim fails as a matter of law, the
Court will not address the substitution of the Chapter 7
trustee as the real party in interest under Fed.R.Civ.P.
STANDARD OF REVIEW
Rule 12(b)(6) a court may dismiss a claim “for failure
to state a claim upon which relief can be granted[.]”
Fed.R.Civ.P. 12(b)(6). “The court's function on a
Rule 12(b)(6) motion is . . . to assess whether the
plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted.”
Brokers' Choice of America, Inc. v. NBC Universal,
Inc., 757 F.3d 1125, 1135 (10th Cir. 2014) (citing
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.
1991)). In evaluating a Rule 12(b)(6) motion, the court must
“accept as true all well-pleaded facts, as
distinguished from conclusory allegations, and view the facts
in the light most favorable to the nonmoving party.”
Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304
(10th Cir. 1998). Even though the court must accept as true
all well-pleaded facts in the complaint, the court is under
no obligation to accept bare conclusory allegations. Hall
v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991). And the
court is not required to accept legal conclusions without
factual support. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007); Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). To summarize, a complaint must contain
sufficient factual allegations “to raise a right to
relief above the speculative level, on the assumption that
all the allegations in the complaint are true. . . .”
Twombly, 550 U.S. at 555.
ruling on a motion to dismiss, a court typically considers
only the well-pleaded facts alleged in the complaint.
Martin v. Central States Emblems, Inc., 150
Fed.Appx. 852, 857 (10th Cir. Oct. 11, 2005) (unpublished)
(citing County of Santa Fe v. Pub. Serv. Co. of
N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)). However, a
court may also consider documents referred to in a complaint,
without converting a motion to dismiss into a motion for
summary judgment, if the documents are central to the
plaintiff's claim and the parties do not dispute their
authenticity. Martin, 311 F.3d at 1035 (citing
County of Santa Fe). A court may also consider
documents of which the court may take judicial notice.
S.E.C. v. Goldstone, 952 F.Supp.2d 1060, 1190
Federal Civil Rights Case No. 05 CV 1155 JB/LAM
November 4, 2002, Dennis O'Brien (O'Brien), then a
sergeant with the Santa Fe Sheriff's Office (SFSO), shot
Walter Mitchell (Mitchell), who was allegedly intoxicated,
mentally ill, and threatening O'Brien with a sword during
a domestic abuse call. In the First Judicial District Court,
Santa Fe County, New Mexico, Mitchell was found guilty but
mentally ill on the charge of assault with a deadly weapon.
State v. Mitchell, D-101-CR-2002-1027.
November 2, 2005, Montoya, then a practicing attorney, filed
a civil rights lawsuit on behalf of Mitchell against the City
of Santa Fe, the Santa Fe Police Department, and
“Dennis O'Brian [sic].” Mitchell v. City
of Santa Fe and Dennis O'Brien, No. 05 CV 1155
JB/LAM, COMPLAINT FOR CIVIL RIGHTS VIOLATIONS (Doc. No. 1)
(D.N.M.) (Mitchell Complaint). Return of service for
the Mitchell Complaint was executed indicating
service on O'Brien and the City of Santa Fe.
April 20, 2006, Mitchell filed a FIRST AMENDED COMPLAINT FOR
CIVIL RIGHTS VIOLATIONS (Doc. No. 13) (Mitchell FAC)
replacing Defendant City of Santa Fe with Defendant Board of
County Commissioners of the County of Santa Fe (the County);
correcting the spelling of O'Brien's name; and
identifying O'Brien as “[a] Deputy Sheriff with the
Santa Fe Sheriff's Department.” Id. No
return of service was filed for the Mitchell FAC. In
the Mitchell FAC, Mitchell alleged that O'Brien
shot him from behind a total of three times. Id.
O'Brien nor the County responded to the Mitchell
Complaint and the Mitchell FAC. Mitchell v. City
of Santa Fe and Dennis O'Brien, No. 05 CV 1155
JB/LAM, MEMORANDUM OPINION AND ORDER (Doc. No. 60) (Relief
from Default Judgment MOO) at 2 (D.N.M. Mar. 31, 2011). On
April 11, 2006, Montoya on behalf of Mitchell filed a motion
for default judgment against O'Brien asserting that
O'Brien was properly served with the Mitchell
Complaint. Id. On April 12, 2006, the Clerk of the
United States District Court for the District of New Mexico
docketed an entry of default against O'Brien.
Id. at 2-3. On May 9, 2006, the Honorable United
States District Judge James O. Browning entered an order
granting Mitchell's application for default judgment.
Id. at 3. A hearing on damages was scheduled for
June 16, 2006. Id. Mitchell, however, did not
personally serve O'Brien with notice of the hearing.
Id. At the beginning of the scheduled hearing on
damages, Montoya withdrew Mitchell's jury demand for
purposes of the hearing. Id. However, Montoya argued
that if O'Brien made an appearance in the case, Mitchell
reserved the right to renew his jury demand. Id.
9, 2007, Judge Browning ruled on two legal issues in a
MEMORANDUM OPINION AND ORDER (Doc. No. 18) (Default Judgment
MOO). Id. at 4. First, Judge Browning ruled that
Mitchell was not required to serve O'Brien with notice of
the hearing on damages. Id. Second, Judge Browning
ruled that under Fed.R.Civ.P. 38(d), Mitchell could not
unilaterally withdraw his jury demand; therefore,
Mitchell's damages had to be determined by a jury.
December 10, 2007, a jury trial on damages was held.
Clerk's Minutes (Doc. No. 46). The jury awarded Mitchell
$2.5 million in compensatory damages and $500, 000 in
punitive damages. Relief from Default Judgment MOO at 4. On
December 28, 2007, Montoya on behalf of Mitchell filed a
notice of voluntary dismissal under Fed.R.Civ.P. 41, and the
Board of Commissioners of the County of Santa Fe (Board) was
dismissed from the case. Id. On December 31, 2007,
Judge Browning entered a Final Judgment against O'Brien.
Id. Sometime after the Final Judgment was entered,
Mitchell died. Id.
March 23, 2010, the Board and O'Brien filed an
independent action as a motion under Fed.R.Civ.P. 60(d)(1)
seeking to vacate the $ 3 million Final
Judgment. Mitchell v. City of Santa Fe and
Dennis O'Brien, No. 05 CV 1155 JB/LAM,
Defendants' Independent Action for Relief from Judgment
(Doc. No. 49). The Board and O'Brien asserted that
service of the Mitchell Complaint and the
Mitchell FAC was deficient or non-existent; that
neither the Board nor O'Brien received notice of the
lawsuit; and that the jury trial on damages and the entry of
the $ 3 million Final Judgment violated the Board's and
O'Brien's due process rights. Id. at 7-9.
Judge Browning denied that request concluding that relief
could be granted only through a separate action instead of a
motion in the Mitchell case. Relief from Default
Judgment MOO at 7.
11, 2011, the Board and O'Brien filed an independent
action against Mitchell's estate. See O'Brien v.
David E. Mitchell, Personal Representative of the Estate of
Walter Mitchell, Case No. 11 CV 409 JB/WDS,
COMPLAINT TO SET ASIDE JUDGMENT (Doc. No. 1). The parties
settled that case and agreed to vacate the Final Judgment in
the Mitchell case. On December 13, 2012, Judge
Browning entered a STIPULATED ORDER VACATING FINAL JUDGMENT
AND DISSOLVING LIS PENDENS (Doc. No. 61) in Case No. 05 CV
1155 JB/LAM, and a STIPULATED ORDER VACATING FINAL JUDGMENT
AND DISSOLVING LIS PENDENS (Doc. No. 68) in Case No. 11 CV
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