Sixth Circuit Affirms Dismissal of FDCPA Suit Arising From Pandemic-Time In Person Service of Process

The Sixth Circuit recently affirmed a district court’s dismissal of a Fair Debt Collection Practices Act (FDCPA) and Michigan Regulation of Collection Practices Act (RCPA) suit, holding that the plaintiff lacked standing. The litigation, Van Vleck v. Leikin, Ingber, & Winters, P.C., arose from the defendant law firm’s service of process on the plaintiff in a different lawsuit.

In the underlying suit, in April 2020 the law firm’s process server served the plaintiff in person with a summons and complaint seeking to collect a debt on behalf of the law firm’s client. The summons, which was the standard pre-pandemic state court form, indicated that the plaintiff had twenty-one days to answer the complaint. The summons did not notify the plaintiff that the Michigan Supreme Court had temporarily suspended that deadline due to the COVID-19 pandemic.

The plaintiff then filed suit against the law firm that served him in the Eastern District of Michigan. The plaintiff first alleged that the law firm had violated the FDCPA and RCPA by serving him in person despite the stay-at-home order and by using a young, unmasked process server who might “spread[]” the COVID-19 virus. The plaintiff also alleged that the standard summons’ non-disclosure of the deadline suspension was false and misleading. The law firm moved to dismiss for lack of standing. In response, the plaintiff argued that the in-person service had caused him injury akin to battery or abuse of process.

The district court judge dismissed the FDCPA claim without prejudice for lack of a concrete injury and declined to exercise pendent jurisdiction over the state law claims. The plaintiff moved to vacate the dismissal arguing that the court had improperly considered extrinsic evidence when analyzing the nature of the alleged injury. The plaintiff also moved to amend the complaint and to certify a question to the Michigan Supreme Court. The district court denied his motions and the plaintiff appealed the decision to the Sixth Circuit.

The court of appeals made quick work of the plaintiff’s standing claims. The court first held that the plaintiff had waived the argument that the service of process constituted an invasion of privacy because he had raised it for the first time in his motion to vacate and had not argued it on appeal.

The court also rejected the plaintiff’s argument that his injury was closely related to a battery because the plaintiff had voluntarily opened the door and taken the summons and complaint from the process server without first putting on a mask, and there were no allegations of involuntary physical contact. The court also noted that the “extrinsic evidence” to which the plaintiff objected was merely corroborative, not dispositive.

Next, the court rejected the plaintiff’s argument that the service constituted a concrete injury because it was closely related to the common law tort of abuse of process, conveying a false sense of urgency to answer the complaint during the pandemic and causing him to hire an attorney to represent him in court. The court of appeals explained that the use of the standard summons and personal service were not analogous to an abuse of process because the plaintiff did not plausibly allege that the firm or the process server acted with an ulterior purpose, intending to deprive the plaintiff of the knowledge of the suspended deadline.

Finally, the court ruled that the plaintiff’s alleged general emotional distress and financial injuries did not rise to a level sufficient to convey standing. Therefore, the court of appeals affirmed the district court’s dismissal of the plaintiff’s claims and denial of the plaintiff’s subsequent motions in full.

This case serves as a helpful reminder that mere procedural deficiencies may not be sufficient to constitute standing and defendants should not be too quick to move to the merits where no actual injury was suffered by a plaintiff.