Plaintiff adds that Defendant continued to harass and intimidate him in conducting this litigation, exacerbating his emotional harm (Docket No. 56, Pl. Memo. at 12-13). Defendant is correct that post-commencement litigation activities cannot create emotional distress for an injury-in-fact allegation (Docket No. 60, Def. Reply Memo. at 7). If emotional injury arose from prosecution of this lawsuit, it is self-inflicted (id., citing, e.g., Tolliver v. National Credit Sys., Inc., No. 20-cv-728-jdp, 2021 WL 4306056, at *4 (W.D. Wis. Sept. 22, 2021). The anxiety from litigation (here, the claimed stress from subpoenaing Soimach, see Docket No. 56, Pl. Memo. at 12-13; Docket No. 56, Pl. Decl. ΒΆ 18 (alleges the subpoena to Soimach was to intimidate and embarrass Plaintiff); Docket No. 35, Pl. Memo. at 5) is distinct from an alleged harm that led to Plaintiff's suit.
Federal Rule of Civil Procedure 26(c) provided the relief from the harm of annoying or embarrassing discovery, Fed. R. Civ. P. 26(c)(1), an injury distinct from the injury claimed originally in the lawsuit. Plaintiff here moved for a protective Order and to quash the subpoena upon Soimach (Docket No. 35), see Ergas, supra, 2021 WL 1711321, at *1. In that Motion, Plaintiff argued that the subpoena caused embarrassment to Plaintiff and his brother (a principal of Soimach) in their "small, tightly knit religious, Jewish Hassidic, community," id. at *2. Part of the alleged embarrassment was revealing the existence of this action in that community, causing inquiries from members of that community, leading to harassment and embarrassment, id.
This is distinct from the harms alleged in the action itself, the distress from receipt of the dunning letter and the potential for a scam or identity theft.
Plaintiff has not alleged tangible harm from the August 2019 dunning letter. The emotional harm alleged is attributed to the potential for identity theft (not addressed by the provisions of FDCPA or its provisions for correct identification of creditors) and does not assert a constitutional injury-in-fact.
Thus, Defendant's Motion for Summary Judgment (Docket No. 52) is granted. Absent standing, Plaintiff cannot move for judgment in his favor (including arguing the merits of his claims under the FDCPA) and his Motion for Summary Judgment (Docket No. 53) is denied. To read the case click here.