Benjamin Ojogwu v. Rodenburg Law Firm

United States Court of Appeals
For the Eighth Circuit
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No. 20-2879
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Benjamin Ojogwu
lllllllllllllllllllllPlaintiff - Appellee
v.
Rodenburg Law Firm
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 21, 2021
Filed: February 14, 2022
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Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
Minnesota law provides that garnishment is “an ancillary proceeding to a civil
action for the recovery of money,” and that a creditor may issue a garnishment
summons to any third party “at any time after entry of a money judgment in the civil
action.” Minn. Stat. § 571.71(3). The statutes further provide that a copy of the
garnishment summons, copies of other papers served on the third party garnishee, and
the applicable garnishment disclosure form “must be served by mail at the last known

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mailing address of the debtor not later than five days after the service is made upon
the garnishee.” § 571.72, subd. 4 and 5.
In this case, a judgment creditor’s attorneys, Rodenburg Law Firm
(“Rodenburg”), mailed consumer debtor Benjamin Ojogwu a copy of the garnishment
summons Rodenburg served on garnishee US Bank, and other state-law-mandated
garnishment forms, knowing that Ojogwu had retained counsel after the default
judgment was entered and that he “disputes this debt.” The district court, expressly
disagreeing with an earlier decision of another District of Minnesota district judge,1
held that § 571.72, subd. 4, is inconsistent with, and therefore preempted by, the
following provision of the federal Fair Debt Collection Practices Act (“FDCPA”):
“Without the prior consent of the consumer . . . or the express permission of a court
of competent jurisdiction, a debt collector may not communicate with a consumer in
connection with collection of any debt . . . if the debt collector knows the consumer
is represented by an attorney with respect to such debt.” 15 U.S.C. § 1692c(a)(2).
After the parties stipulated as to remedy, the court entered final judgment awarding
Ojogwu statutory damages plus attorney’s and filing fees. Rodenburg appeals.
After careful study, we conclude that we may not resolve the merits of this
intradistrict conflict. Rather, applying the Supreme Court’s recent decisions in
Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and TransUnion LLC v. Ramirez, 141
S. Ct. 2190, 2200 (2021) (“No concrete harm, no standing”), we conclude that
Ojogwu lacks Article III standing to pursue this claim in federal court because he
failed to allege and the record does not show that he suffered concrete injury in fact
from Rodenburg’s alleged violation of § 1692c(a)(2). Accordingly, we reverse the
judgment in favor of Ojogwu and remand with directions to dismiss his Complaint
for lack of jurisdiction.
1Resler v. Messerli & Kramer, PA, No. Civ. 02-2510, 2003 WL 193498 (D.
Minn. Jan. 23, 2003).
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I. Background
Rodenburg is a debt collection law firm and a “debt collector” as defined by
a 1986 amendment to the FDCPA. See 15 U.S.C. § 1692a(6); Heintz, 514 U.S. at
294-95. In March 2017, Rodenburg, representing creditor Portfolio Recovery
Associates, LLC (“Portfolio”), mailed Ojogwu a Notice of Intent to Apply for Default
Judgment because Ojogwu did not timely answer the January 2017 lawsuit filed by
Portfolio in Hennepin County District Court to collect a $24,172.63 consumer debt
Ojogwu initially owed to Citibank. On April 14, the state court entered default
judgment in the amount of $36,937.35. On June 3, attorney Blake Bauer sent
Rodenburg a letter referencing the state court file number and stating as relevant here:
Please be advised that I have been retained to represent Benjamin C.
Ojogwu regarding the above-referenced matter and for all matters of
indebtedness. Please be further advised that my client disputes this debt
and requests verification of it. Also, my client was never served with a
Summons and Complaint on January 27, 2017 for the above referenced
case. I would formally request a copy of the Affidavit of Service for the
Summons and Complaint.
Also, under no circumstances should you contact my client directly.
On June 8, Rodenburg acknowledged Bauer’s letter and enclosed the following
documents: (i) a Hennepin County District Court Notice of Entry and Docketing of
Judgment dated January 29, 2007, giving notice that judgment in the amount of
$26,518.35 had been entered in the case, Portfolio Recovery Associates v. Ojogwu,
Court File No. 27-CV-07-773; (ii) a Hennepin County District Court Notice of Entry
and Docketing of Judgment dated April 14, 2017, giving notice that judgment in the
amount of $36,937.35 had been entered in the case, Portfolio Recovery Associates
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v. Ojogwu, Court File No. 27-CV-17-5122;2 and (iii) two affidavits of service reciting
that Ojogwu was personally served with the Summons and Complaint on December
8, 2016, by handing a copy to his roommate at his usual abode, and with the
Amended Complaint on January 27, 2017, by leaving it in the front door of his abode
when his roommate refused to open the door and accept service.
In July 2017, Rodenburg mailed Ojogwu a letter containing copies of a
garnishment summons, notice to debtor, garnishment earnings disclosure worksheet,
and garnishment exemption notice that Rodenburg had served on Becho Corp as
garnishee. See Minn. Stat. §§ 571.711 and .92 (relating to the garnishment of
earnings). Attorney Bauer threatened an FDCPA lawsuit for this direct mailing. The
dispute was resolved without litigation. On July 17, 2018, Rodenburg mailed
Ojogwu copies of garnishment documents served on US Bank as a financial
institution garnishee, see §§ 571.911-.914, including required disclosure and
exemption notices. Ojogwu sent the documents to his lawyer. This lawsuit followed.
Ojogwu sued both Rodenburg and Portfolio under 15 U.S.C. § 1692c(a)(2) of
the FDCPA. After the district court denied defendants’ motion to dismiss, Portfolio
settled and was dismissed. The district court then denied Rodenburg’s motion for
summary judgment and granted Ojogwu judgment in accordance with the parties’
damage stipulation, concluding that Rodenburg’s compliance with Minnesota law
requiring that debtors be directly served did not excuse it from § 1692c(a)(2) liability
because state garnishment and default judgment law and rules are not the “express
permission of a court of competent jurisdiction,” nor was the mailing an “ordinary
court-related document” of the kind referred to in Heintz, 514 U.S. at 296. Thus, the
2Minnesota law provides that a judgment creditor, or its assignee, may enforce
the judgment “at any time within ten years after the entry thereof.” Minn. Stat.
§ 550.01. Thus, the record reflects that Ojogwu has been a judgment debtor for
fifteen years, which refutes his belated claim on appeal that continuing lawful efforts
to collect the judgment are an invasion of his legitimate privacy interests.
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court concluded, the state and federal laws are in direct conflict, and Minn. Stat.
§ 571.72, subd. 4, is preempted by the FDCPA.
II. The Standing Issue
“Because standing is a threshold inquiry into federal court jurisdiction, we
begin -- and end -- our analysis there.” Yeransian v. B. Riley FBR, Inc., 984 F.3d
633, 636 (8th Cir. 2021). Although the district court did not address the issue, “[w]e
have an obligation to assure ourselves of litigants’ standing under Article III.” Frank
v. Gaos, 139 S. Ct. 1041, 1046 (2019) (remanding for consideration of standing in
light of Spokeo) (quotation omitted).
Ojogwu bears the burden of proving Article III standing by showing “(i) that
he suffered an injury in fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant; and (iii) that the injury would
likely be redressed by judicial relief.” TransUnion, 141 S. Ct. at 2203. The “[f]irst
and foremost” of these elements is injury in fact, which requires the plaintiff to show
that the harm is both “concrete and particularized.” Spokeo, 578 U.S. at 338-39
(citations omitted). “[U]nder Article III, an injury in law is not an injury in fact.”
TransUnion, 141 S. Ct. at 2205. Thus, a concrete and particularized inquiry is
required even when Congress creates a private cause of action, as it did in the
FDCPA. See § 1692k. “For standing purposes . . . an important difference exists
between (i) a plaintiff’s statutory cause of action to sue a defendant over the
defendant’s violation of federal law, and (ii) a plaintiff’s suffering concrete harm
because of the defendant’s violation of federal law.” TransUnion, 141 S. Ct. at 2205.
Rodenburg directly mailed documents to consumer debtor Ojogwu. Thus, the
alleged FDCPA violation was particularized, affecting him in a “personal and
individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992). The
issue is whether he alleged concrete harm. “A ‘concrete’ injury must be ‘de facto’;
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that is, it must actually exist.” Spokeo, 578 U.S. at 340 (citation omitted).
Rodenburg’s alleged violation -- sending Ojogwu a copy of a garnishment summons
served on US Bank -- caused Ojogwu no tangible injury, such as physical or monetary
harm. The summons imposed tangible compliance obligations on the garnishee, US
Bank, but serving a copy of the summons imposed no tangible obligations on
Ojogwu. Cf. Scheffler v. Messerli & Kramer P.A., 791 F.3d 847, 849 (8th Cir.)
(noting that service of a garnishment summons is not an “adverse action” under the
Fair Credit Reporting Act), cert. denied, 577 U.S. 1015 (2015). Indeed, serving a
copy of the third party summons is a benefit to the debtor, giving him timely notice
and an opportunity to claim an exemption or satisfy the garnishment in a way that
does not disturb his relations with the financial institution garnishee.3 This beneficial
notice is hardly evidence of tangible injury in fact.
“Article III standing requires a concrete injury even in the context of a statutory
violation.” TransUnion, 141 S. Ct. at 2205 (quoting Spokeo, 578 U.S. at 341). This
ruling superseded our prior contrary precedents. See Braitberg v. Charter Commc’ns,
Inc., 836 F.3d 925, 929-30 (8th Cir. 2016). Ojogwu alleges that Rodenburg’s direct
mailing violation of § 1692c(a)(2) resulted in what Spokeo and TransUnion refer to
as intangible injury -- “actual damages in the form of fear of answering the telephone,
nervousness, restlessness, irritability, amongst other negative emotions.” Complaint
3The Supreme Court of Minnesota in construing a prior garnishment statute
recognized that requiring service of a copy of the garnishment summons benefits the
debtor: “There is excellent reason why [the debtor] should have an opportunity to be
present and protect his property interests.” Webster Mfg. Co. v. Penrod (Trolander,
Garnishee), 114 N.W. 257, 258 (Minn. 1907). The FDCPA’s express preemption
provision, § 1692n, provides that “a State law is not inconsistent with this subchapter
if the protection such law affords any consumer is greater than the protection
provided by this subchapter.”
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¶ 31. “In determining whether an intangible harm constitutes injury in fact, both
history and the judgment of Congress play important roles.” Spokeo, 578 U.S. at 340.
The historical analysis asks whether the alleged injury has “a close relationship
to harms traditionally recognized as providing a basis for lawsuits in American
courts.” TransUnion, 141 S. Ct. at 2204. Congress plays an important role because,
by statute, it may “elevat[e] to the status of legally cognizable injuries concrete, de
facto injuries that were previously inadequate in law.” Spokeo, 578 U.S. at 341
(quotation omitted). However, Congress “may not simply enact an injury into
existence, using its lawmaking power to transform something that is not remotely
harmful into something that is.” TransUnion, 141 S. Ct. at 2205 (quotation omitted).
Applying this analysis, we conclude the intangible injuries alleged in Ojogwu’s
Complaint are insufficient to establish concrete injury in fact. Direct receipt of a copy
of the garnishment summons did not cause Ojogwu to act to his detriment or fail to
protect his interests. He promptly turned the documents over to his attorney,
previously retained to represent Ojogwu “for all matters of indebtedness.” This case
is a far cry from Demarais v. Gurstel Chargo, P.A., on which Ojogwu relies, where
the debt collector, attempting to collect a debt, violated § 1692e and § 1692f by
sending the debtor discovery demands after dismissing its claim with prejudice, a
false and deceptive collection action that caused the debtor to retain an attorney and
incur litigation expenses. 869 F.3d 685, 693 (8th Cir. 2017). In reversing dismissal
of the debtor’s FDCPA claims, including claims of mental distress, we noted that the
debt collector’s improper collection actions bore a close relationship to “common-law
unjustifiable-litigation torts.” Id. 691-92. Additionally, the FDCPA violations
caused the plaintiff tangible harm -- the time and money required to defend against
unjustified legal action. Id. at 693.
By contrast, Ojogwu’s allegations of intangible injury -- “fear of answering the
telephone, nervousness, restlessness, irritability, amongst other negative emotions” --
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“fall short of cognizable injury as a matter of general tort law.” Buchholz v. Meyer
Njus Tanick, PA, 946 F.3d 855, 864 (6th Cir. 2020). In Buchholz, the debtor alleged
that misrepresentations in a lawyer’s letter caused him an “undue sense of anxiety”
about potential legal action. Id. at 860. The Sixth Circuit affirmed the dismissal of
the § 1692e claim because the debtor failed to allege actionable concrete injury.
Because the letter merely informed the plaintiff of his debts and the procedures to pay
or challenge them, “[t]he cause of [his] anxiety falls squarely on Buchholz because
he chose not to pay his debts—and now fears the consequences of his delinquency.”
Id. at 867, 870 (emphasis in original). Similarly, in Pennell v. Global Trust
Management, LLC, 990 F.3d 1041, 1045 (7th Cir. 2021), the debtor asserted
§ 1692c(a)(2) and § 1692c(c) claims, alleging that a debt collector’s dunning letter
caused her “stress and confusion.” The Seventh Circuit reversed a judgment in favor
of the debtor and remanded with instructions to dismiss for lack of Article III
standing. “The state of confusion is not itself an injury. Nor does stress by itself with
no physical manifestations and no qualified medical diagnosis amount to a concrete
harm.” Id. (cleaned up).4
The reasoning in these cases is even more applicable here, where the
direct mailing at issue served the intended purpose of benefitting debtor Ojogwu. As
4Most circuits to consider the issue have concluded that a consumer debtor has
Article III standing to assert an FDCPA claim that a debt collector’s harassing calls
or letters invaded a privacy interest protected by the well-established tort of “intrusion
upon seclusion.” See Restatement (Second) of Torts § 652B; Lupia v. Medicredit,
Inc., 8 F.4th 1184, 1191 (10th Cir. 2021); Gadelhak v. AT&T Servs., Inc., 950 F3d
458, 461-63 (7th Cir. 2020) (Barrett, J.), cert. denied, 141 S. Ct. 2552 (2021). We
agree that many alleged § 1692c(a)(2) violations will satisfy the Article III
requirement of concrete injury in fact; after all, the FDCPA’s purpose was “to
eliminate abusive debt collection practices.” § 1692(e). But the concrete harm
inquiry is fact specific. Directly providing a debtor with a required notice that the
creditor is seeking an ancillary remedy in a long-standing debt collection action is not
an invasion of the defendant’s privacy.
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garnishment in Minnesota is an independent action ancillary to the creditor’s suit to
recover money from the defendant debtor, it is not surprising that the statute requires
personal service of the garnishment summons on the debtor. Moreover, to establish
Article III standing, Ojogwu has the burden to demonstrate a concrete injury “caused
by the defendant.” TransUnion, 141 S. Ct. at 2203 (emphasis added). Here, Ojogwu,
who had avoided paying this debt for more than ten years, made no showing that his
alleged “negative emotions” were caused by Rodenburg commencing a lawful
garnishment proceeding.
Finally, we think it relevant to the question of concrete injury that attorney
Bauer’s initial letter advised Rodenburg that Ojogwu “disputes this debt.” Ojogwu’s
Complaint alleged a violation of § 1692c(a)(2). Section 1692c, one part of the Debt
Collection Practices in Subchapter V, is entitled, “Communication in connection with
debt collection.” Subsection 1692c(c)(3) provides that, “[i]f a consumer notifies a
debt collector in writing that the consumer refuses to pay a debt . . . the debt collector
shall not communicate further with the consumer with respect to such debt, except . . .
to notify the consumer that the debt collector or creditor intends to invoke a specified
remedy.” The Supreme Court’s relevant guidance in Heintz addressed this exception:
[I]t would be odd if the Act empowered a debt-owing consumer to stop
the “communications” inherent in an ordinary lawsuit and thereby cause
an ordinary debt-collecting lawsuit to grind to a halt. But it is not
necessary to read § 1692c that way . . . . Courts can read these
exceptions [in §§ 1692c(c)(2), (3)], plausibly, to imply that they
authorize the actual invocation of the remedy that the collector “intends
to invoke.” . . . [This] interpretation is consistent with the statute’s
apparent objective of preserving creditors’ judicial remedies.
514 U.S. at 296. This comment is not obviously applicable because Ojogwu (no
doubt intentionally) did not assert a violation of § 1692c(c). But bearing in mind that
under Minnesota law, garnishment is an independent proceeding ancillary to “an
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ordinary debt-collecting lawsuit,” we think the comment reinforces our conclusion
that Ojogwu failed to allege concrete injury in fact. Rodenburg Law Firm argues that
the district court’s narrow interpretation of the § 1692c exceptions and the FDCPA’s
limited express preemption provision, § 1692n, are inconsistent with Supreme Court
guidance favoring FDCPA construction that is “consistent with . . . preserving
creditors’ judicial remedies.” We leave that question for another day.
III. Conclusion
The district court lacked Article III jurisdiction because Ojogwu failed to
plausibly allege or later show a concrete injury in fact. Accordingly, the judgment of
the district court is vacated and the case is remanded with instructions to dismiss the
Complaint. We grant Appellant’s Motion for Leave to File Supplemental Briefs on
the Issue of Article III Standing.
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