Traylor V Er Solutions Inc Fda Complaint 3kw5e

CASE 0:09-cv-01994-JNE-SRN Document 1 Filed 07/30/09 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Galen Traylor, Plaintiff, v. ER Solutions, Inc. and John Doe, Defendants.

) ) ) ) Civil Action No. __________________ ) ) ) ) )

COMPLAINT JURY TRIAL DEMANDED

JURISDICTION 1.

Jurisdiction of this Court arises under 28 U.S.C. § 1331 and pursuant to 15 U.S.C. § 1692k(d), and pursuant to 28 U.S.C. § 1367 for pendent state law claims.

2.

This action arises out of Defendants’ violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDA”).

3.

Venue is proper in this district because the acts and transactions occurred in this district, Plaintiff resides in this district, and Defendants transact business in this district.

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PARTIES 4.

Plaintiff Galen Traylor (hereinafter “Plaintiff”), is a natural person residing in the County of Hennepin, State of Minnesota, and is a “consumer” as that term is defined by 15 U.S.C. § 1692a(3).

5.

Defendant ER Solutions, Inc. (hereinafter “Defendant ER”), is a collection agency operating from an address of 800 SW 7th Street, Suite A100, Renton, WA 98055 and is a “debt collector” as that term is defined by 15 U.S.C. § 1692a(6).

6.

Defendant John Doe (hereinafter “Defendant Doe”) is a natural person employed by Defendant ER as a collection agent and is a debt collector as that term is defined by 15 U.S.C. § 1692a(6). FACTUAL SUMMARY

7.

Sometime prior to August 2008, upon information and belief, a third party incurred a financial obligation that upon information and belief was primarily for personal, family or household purposes, and is therefore a “debt” as that term is defined by 15 U.S.C. § 1692a(5).

8.

Sometime thereafter, the alleged debt was consigned, placed or otherwise transferred to Defendant ER for collection.

9.

Upon information and belief, in August 2008 Plaintiff obtained a new telephone number and started receiving telephone calls from Defendant ER requesting payment for an alleged debt.

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10.

On numerous occasions, Plaintiff spoke with Defendant Doe, a debt collector employed by Defendant ER and explained that a Ms. Laura Livingston does not live at Plaintiff’s residence. Despite conveying this fact, the telephone calls from Defendant ER by Defendant Doe persisted.

11.

Upon information and belief, Defendant Doe ed Plaintiff on multiple occasions including but not limited to February 26, 2009; March 19, 2009; April 9, 2009; April 21, 2009; April 23, 2009; April 27, 2009; April 28, 2009; April 29, 2009; April 30, 2009; May 1, 2009; May 2, 2009; May 3, 2009; May 4, 2009; May 6, 2009; May 7, 2009; May 8, 2009; May 9, 2009; May 10, 2009; May 11, 2009; May 13, 2009; May 15, 2009; May 16, 2009; May 19, 2009 – on three separate occasions; May 20, 2009; May 21, 2009 on two separate occasions; and May 22, 2009.

12.

On May 10, 2009, Plaintiff ed the Office of the Minnesota Attorney General. (See Plaintiff’s Exhibit 1)

13.

On behalf of Plaintiff, the Office of the Minnesota Attorney General sent a letter ordering Defendant ER to promptly and appropriately cease with Plaintiff’s telephone number. Defendant ER was also requested to provide an explanation of its actions as well as a proposal to bring the matter to a satisfactory resolution.

The Office of the Minnesota Attorney General

requested from Defendant ER a response within ten (10) business days of the date of that letter. (See Plaintiff’s Exhibit 2)

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14.

Defendant ER did not respond within ten (10) business days to the Office of the Minnesota Attorney General, did not promptly and appropriately cease with Plaintiff, and at no time provided a proposal to bring the matter to a satisfactory resolution pursuant to the request from the Office of the Minnesota Attorney General.

15.

Defendant Doe continued to Plaintiff by telephone on May 23, 2009; May 24, 2009; May 26, 2009; May 27, 2009; May 28, 2009; May 29, 2009; May 30, 2009; June 1, 2009; June 2, 2009; June 4, 2009; June 9, 2009; and June 10, 2009.

16.

On June 11, 2009, Defendant ER sent a letter to the Consumer Services Division of the State of Minnesota. Defendant ER’s letter contained a statement that “Ms. Traylor’s number has been removed and she should not receive any more calls.” (See Plaintiff’s Exhibit 3)

17.

Defendant Doe continued to Plaintiff by telephone on June 11, 2009; June 12, 2009; June 13, 2009; June 14, 2009; June 15, 2009; and June 16, 2009.

18.

The conduct of Defendants in ing a third party more than once, after written communication that a consumer wanted Defendants to cease communication and causing the telephone to ring repeatedly are violations of numerous and multiple provisions of the FDA, including but not limited to 15 U.S.C. §§ 1692b, 1692b(3), 1692d,1692d(5) and 1692f amongst others.

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Respondeat Superior Liability 19.

The acts and omissions of Defendant Doe, and/or the other debt collectors employed as agents by Defendant ER who communicated with Plaintiff as more further described herein, were committed within the time and space limits of their agency relationship with their principal, Defendant ER.

20.

The acts and omissions by Defendant Doe and/or these other debt collectors were incidental to, or of the same general nature as, the responsibilities these agents were authorized to perform by Defendant ER in collecting consumer debts.

21.

By committing these acts and omissions against Plaintiff, Defendant Doe and these other debt collectors were motivated to benefit their principal, Defendant ER.

22.

Defendant ER is therefore liable to Plaintiff through the Doctrine of Respondeat Superior for the intentional and negligent acts, errors, and omissions done in violation of state and federal law by its collection employees, including but not limited to violations of the FDA and Minnesota law, in their attempts to collect this debt from Plaintiff. Summary

23.

The above-detailed conduct by Defendants, of harassing Plaintiff in an effort to collect this debt was a violation of numerous and multiple provisions of the FDA, including but not limited to all of the above mentioned provisions of

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the FDA and Minnesota law, as well as an invasion of Plaintiff’s privacy by an intrusion upon seclusion. 24.

Plaintiff has suffered actual damages as a result of these illegal collection communications by the Defendants in the form of anger, anxiety, emotional distress, frustration, embarrassment amongst other negative emotions, as well as suffering from unjustified and abusive intrusions upon seclusion and her right to be let alone.

25.

Defendants’ negligent and/or intentional acts resulted in the violation of numerous provisions of state and federal law and resulted in actual damages to the Plaintiff. TRIAL BY JURY

26.

Plaintiff is entitled to and hereby respectfully demands a trial by jury. U.S. Const. amend. 7. Fed.R.Civ.P. 38. CAUSES OF ACTION COUNT I. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692 et seq.

27.

Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.

28.

The foregoing acts and omissions of Defendants and their agents constitute numerous and multiple violations of the FDA including, but not limited to,

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each and every one of the above-cited provisions of the FDA, 15 U.S.C. § 1692 et seq., with respect to Plaintiff. 29.

As a result of Defendants’ violations of the FDA, Plaintiff is entitled to actual damages pursuant to 15 U.S.C. § 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A); and, reasonable attorney’s fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), from each and every Defendant herein. COUNT II. INVASION OF PRIVACY BY INTRUSION UPON SECLUSION

30.

Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.

31.

Defendant ER and/or its agents intentionally and/or negligently interfered, physically or otherwise, with the solitude, seclusion and/or private concerns or affairs of Plaintiff, namely, causing the telephone of a third party to ring repeatedly and unreasonably despite knowing that the alleged debtor did not live at the residence of the telephone number, after receiving a cease and desist letter from the Office of the Minnesota Attorney General, and after providing written notice that the telephone calls would cease, thereby invading Plaintiff’s privacy and right to seclusion.

32.

Defendant ER and its agents intentionally and/or negligently caused emotional harm to Plaintiff by engaging in highly offensive conduct in the course of

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collecting this debt, thereby invading and intruding upon Plaintiff’s right to privacy. 33.

Plaintiff had a reasonable expectation of privacy in Plaintiff’s solitude, seclusion, private concerns or affairs.

34.

The conduct of Defendant ER and its agents, in engaging in the above-described illegal collection conduct against Plaintiff, resulted in an intrusion and invasion of privacy by Defendants which occurred in a way that would be highly offensive to a reasonable person in that position.

35.

As a result of such intrusion and invasion of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from each and every Defendant. COUNT III. NEGLIGENT SUPERVISION

36.

Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.

37.

All at times relevant herein, Defendant Doe acting within the scope and course of his employment in collecting debts from Plaintiff on behalf of his employer, Defendant ER.

38.

Defendant ER owed the Plaintiff a duty in its supervision of its employees.

39.

Defendant ER was negligent in its supervision of its employees.

40.

Defendant ER failed to use reasonable care to supervise the activity of its employees. 8

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41.

The acts and omissions of Defendant ER’s employees posed a threat of harm to the Plaintiff or others.

42.

Plaintiff was harmed by Defendant ER’s negligent supervision of Defendant Doe and/or other employees.

43.

Plaintiff has been seriously damaged as a result and are entitled to their damages, costs and attorneys fees. COUNT IV. NEGLIGENT RETENTION

44.

Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein.

45.

All at times relevant herein, Defendant Doe was acting within the scope and course of his employment in collecting debts from Plaintiff on behalf of his employer, Defendant ER.

46.

Defendant ER owed a duty to the Plaintiff.

47.

Defendant ER was negligent in its retention of its employees involved in the Plaintiff’s case.

48.

Defendant ER knew or should have known that the employees posed a threat of harm to others.

49.

Defendant ER failed to take reasonable action to ensure that its employees were appropriate for the jobs they were enlisted to do.

50.

Plaintiff was harmed by Defendant ER’s negligent retention of Defendant Doe and these other employees. 9

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51.

Plaintiff has been seriously damaged as a result and are entitled to their damages, costs and attorneys fees.

Dated: July 30, 2009

MARTINEAU, GONKO & VAVRECK, PLLC

s/ Mark L. Vavreck Mark L. Vavreck, Esq. Attorney I.D.#0318619 Designer’s Guild Building 401 North Third Street, Suite 600 Minneapolis, MN 55401 Telephone: (612) 659-9500 Facsimile: (612) 659-9220 [email protected] ATTORNEY FOR PLAINTIFF

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