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Lyshe v. Levy

United States Court of Appeals, Sixth Circuit

April 20, 2017

Brendan Lyshe, Plaintiff-Appellant,
Yale R. Levy; Levy & Associates, LLC; Kirschenbaum, Phillips & Levy, PC; Krishna Velayudhan, Defendants-Appellees.

         Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:16-cv-00516-Michael H. Watson, District Judge.

          Steven C. Shane, Bellevue, Kentucky, Stephen R. Felson, Cincinnati, Ohio, for Appellant.

          Boyd W. Gentry, LAW OFFICE OF BOYD W. GENTRY, LLC, Beavercreek, Ohio, for Appellees.

          Before: GUY, SILER, and DONALD, Circuit Judges.


          BERNICE BOUIE DONALD, Circuit Judge.

         Yale R. Levy, Levy & Associates, LLC, Kirschenbaum, Phillips & Levy, PC, and Krishna Velayudhan (collectively, "Appellees") brought a collection action against Brendan Lyshe. Alleging that Appellees' discovery requests violated state procedural rules, Lyshe brought a claim for relief under the Fair Debt Collection Practices Act ("FDCPA"). For the following reasons, we conclude that Lyshe did not suffer any concrete harm from Appellees' alleged state procedural violations. Accordingly, we AFFIRM the district court's judgment dismissing his claim for lack of jurisdiction.


         In 2016, Appellees brought a collection action against Lyshe. Soon after bringing the action, Appellees served Lyshe with discovery requests. They did not send a separate electronic copy, but instructed Lyshe to contact them if he would like an electronic copy. As part of the discovery, the requests for admission required that Lyshe verify that his responses were "true and correct to the best of [his] knowledge, information and belief, " and included a blank notary block. Ex. C, ECF No. 1-3, Page ID 12. It further provided that any matter would be deemed admitted unless Lyshe made a sworn statement in compliance with the Ohio Rules of Civil Procedure.

         Lyshe then brought suit, alleging that Appellees violated the FDCPA by failing to provide electronic discovery without prompting and requiring that the responses to the requests for admission be sworn and notarized. Appellees moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Relying on Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), the district court concluded that it lacked subject matter jurisdiction under Rule 12(b)(1), and dismissed the case on that ground. Specifically, it held that Lyshe did not plead any injury in connection with the alleged violations of the state procedural rules. According to the district court, Appellees did not violate the Ohio Rules of Civil Procedure by offering to send electronic copies of the discovery only upon Lyshe's request. Regarding the alleged errors in the requests for admissions, the district court reasoned that Lyshe failed to allege that he was misled, that he felt compelled to make a sworn verification or engage a notary, or that he even responded to the challenged requests, so his allegations were insufficient to confer jurisdiction upon the federal courts. Lyshe appeals, arguing that this court has subject matter jurisdiction and that his complaint states a claim upon which relief may be granted.


         Article III of the Constitution limits the jurisdiction of federals courts to hear only actual cases and controversies. U.S. Const. art. 3, § 2. The doctrine of standing aids us in defining these limits. The plaintiff bears the burden of establishing standing. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). To satisfy the "irreducible constitutional minimum of standing, " the plaintiff must establish that: (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical; (2) that there is a causal connection between the injury and the defendant's alleged wrongdoing; and (3) that the injury can likely be redressed. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). At dispute here is only whether Lyshe suffered an injury in fact. The existence of an abstract injury is insufficient for a plaintiff to carry his burden on this element. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Rather, a plaintiff must establish that he has a "personal stake in the outcome of the controversy." Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).

         Whether a party has standing is an issue of the court's subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Allstate Ins. Co. v. Global Med. Billing, Inc., 520 F.App'x 409, 410-11 (6th Cir. 2013) (citing Murray v. U.S. Dep't of Treasury, 681 F.3d 744, 748 (6th Cir. 2012)). We review such matters de novo. McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012).


         Lyshe maintains that Appellees violated the Ohio Rules of Civil Procedure by (1) failing to provide electronic discovery without a request from Lyshe; and (2) stating that the requests for admissions must be sworn and notarized or else be deemed admitted, and that these errors violate the FDCPA.[1] Lyshe contends that prior to Spokeo, circuit case law established that a debt collector's failure to follow state law procedural rules violated the FDCPA. He reasons that although Spokeo seemed to reexamine Article III standing in the context of intangible damages, it did not change the rule of law for standing and did not eliminate standing for cases like the one here ...

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