UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ROCHELLE DANIEL, 

Plaintiff,

v.

WEST ASSET MANAGEMENT,

Defendant. 

 /

Case No. 14-13573

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Pending before the court is a Motion to Dismiss, filed by Defendant West Asset

Management (“WAM”) on September 22, 2014 (Dkt. # 5). Having reviewed the briefs,

the court concludes a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the

reasons stated below, the court will grant the motion.

I. BACKGROUND

The following facts are taken from Plaintiff’s complaint together with the public

docket entries of the previous cases between the parties, and are assumed to be true

for the purposes of this motion. Daniel had previously sued WAM in this court (Case

No. 11-cv-10034, “Daniel I”) on January 4, 2011 for violations of the Telephone

Consumer Protection Act (“TCPA”), the Fair Debt Collection Practices Act (“FDCPA”),

and the Fair Credit Reporting Act (“FCRA”) in connection WAM’s efforts to collect a debt

Plaintiff allegedly owed to AT&T. In two separate orders the court dismissed all of

Plaintiff’s claims. Daniel v. West Asset Management, Inc., No. 11-10034, 2011 WL

2:14-cv-13573-RHC-MJH Doc # 10 Filed 05/20/15 Pg 1 of 7 Pg ID 55
2412950 (E.D. Mich. June 14, 2011); Daniel v. West Asset Management, Inc., No. 11-

10034, 2011 WL 5142980 (E.D. Mich Oct. 28, 2011).

On June 28, 2012, Daniel again sued WAM (Case No. 12-cv-12851, “Daniel II”). 

In relevant part, Daniel claimed that WAM lacked a permissible purpose in obtaining her

credit report from TransUnion on August 12, 2011 for the purpose of responding to

discovery requests in Daniel I. Count IV1 of the Complaint was an intrusion upon

seclusion claim.

The court initially dismissed the case pursuant to 28 U.S.C. § 1915(e)(2), Daniel

v. West Asset Management, Inc., No 12-12851, 2012 WL 5379116 (E.D. Mich. Oct. 31,

2012), but upon reconsideration, reinstated Counts I, II and part of III, which constituted

her claims under the FCRA. Daniel v. West Asset Management, Inc., No 12-12851,

Dkt. # 7 (E.D. Mich. Oct. 31, 2012). The court addressed the intrusion upon seclusion

claim, concluding that “[r]egardless of whether Defendant had a permissible purpose for

obtaining Plaintiff’s credit report, Plaintiff has not alleged facts suggesting that

Defendant obtained the report in an objectively intrusive manner.” (Id. at Pg. ID 47.) As

such, Daniel “fail[ed] to state a claim for Intrusion upon seclusion” and the motion for

reconsideration of the dismissal was denied.2

 (Id.)

On December 20, 2012, Daniel amended her complaint, purporting to reintroduce

the intrusion upon seclusion claim. (Case No. 12-12851, Dkt. # 8, Pg. ID 55.) The case

1

The intrusion upon seclusion claim was labeled “COUNT VI” but was placed

between III and V and no IV exists.

2

Daniel alleges that the court “dismissed [the] Intrusion Upon Seclusion claim for

lack of jurisdiction.” (Dkt. # 1, Pg. ID 8.) This is flatly contradicted by the language of

the court’s October 31, 2012 order.

2

2:14-cv-13573-RHC-MJH Doc # 10 Filed 05/20/15 Pg 2 of 7 Pg ID 56
proceeded with discovery and WAM moved for summary judgment. The court denied

WAM’s motion for summary judgment, Daniel v. West Asset Management, Inc., No. 12-

12851, 2012 WL 5212107 (E.D. Mich. Sept. 16, 2013). The court noted in its opinion

and order that the “Intrusion upon seclusion [claim was] identical to [claim] originally

dismissed by an October 31, 2012 order and [was] not reinstated by the December 12,

2012 order granting Daniel's motion for reconsideration. Therefore, the claim[] ha[s]

already been dismissed and [is] not at issue on summary judgement.” Id. at *1 n.1. The

case ultimately settled in November of 2013, resulting in the dismissal of the remaining

claims with prejudice. (Case No. 12-12851, Dkt. # 40.)

Daniel sued WAM for a third time in the Third Judicial Circuit Court, County of

Wayne, Michigan on June 26, 2014, asserting a sole common law claim for Intrusion

upon seclusion based upon the same credit report pull that was at issue in Daniel II.

(Dkt. # 1, Pg. ID 9.) WAM timely removed the case to this court and now moves to

dismiss.

II. STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests

the sufficiency of a complaint’s allegations. Federal Rule of Civil Procedure 8(a)(2)

requires that a complaint contain “a short and plain statement of the claim showing that

the pleader is entitled to relief[.]” In order to survive a motion to dismiss, the complaint

must allege “[f]actual allegations . . . enough to raise a right to relief above the

speculative level . . . on the assumption that all the allegations in the complaint are

true[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, the court

views the complaint in the light most favorable to the plaintiff and takes all well-pleaded

3

2:14-cv-13573-RHC-MJH Doc # 10 Filed 05/20/15 Pg 3 of 7 Pg ID 57
factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488

(6th Cir. 2009); Carrier Corp. v. Outokumu Oyj, 673 F.3d 430, 400 (6th Cir. 2012). 

However, the court “need not accept as true legal conclusions or unwarranted factual

inferences.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not shown—that the pleader is

entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 

III. DISCUSSION

Daniel’s claim is plainly barred by res judicata. Res judicata bars future claims

when the following four elements are present: “(1) a final decision on the merits by a

court of competent jurisdiction; (2) a subsequent action between the same parties or

their ‘privies'; (3) an issue in the subsequent action which was litigated or should have

been litigated in the prior action; and (4) an identity of the causes of action.” United

States v. Vasilakos, 508 F.3d 401, 406 (6th Cir.2007) (internal quotations omitted).

Each element of res judicata is present in this case. First, the court’s earlier dismissal

of the Intrusion upon seclusion claim in Daniel II was not appealed. Second, the

present case is between the same parties as Daniel II. Third, This issue of Intrusion

upon seclusion was litigated in Daniel II. Fourth, Daniel’s allegations in this case are

nearly identical to those detailed in Daniel II.

It is true that the court’s initial § 1915(e)(2) dismissal did not mention the intrusion

upon seclusion claim and would not have had res judicata effect on this action on its

own. However, the court’s order on the motion for reconsideration clearly addressed

the intrusion upon seclusion claim on the merits, concluding that it “failed to state a

4

2:14-cv-13573-RHC-MJH Doc # 10 Filed 05/20/15 Pg 4 of 7 Pg ID 58
claim.” It is this holding, which was necessary to the resolution of the motion for

reconsideration that establishes the res judicata effect. This was confirmed in the

court’s resolution of the summary judgment motion, which reaffirmed the merits-based

dismissal of the intrusion upon seclusion claim.

Attacking the res judicata argument on another front, Daniel cites to

communications with WAM’s counsel during settlement negotiations, where she insisted

that a release of her intrusion upon seclusion claim was “off the table.” (Dkt. # 6, Pg. ID

38.) Daniel apparently believed that by carving intrusion upon seclusion out of the

settlement agreement, she would be free to bring the claim in a separate action. Daniel

is mistaken. The principles of res judicata apply to the claim. While Daniel was able to

negotiate the language of the release so as not to include that claim, she did not extract

a waiver of the res judicata defense from WAM. Without such a waiver to enforce,

Daniel’s settlement negotiations do not negate the preclusive effect of the court’s

holding in Daniel II.

Even if res judicata did not apply, the court holds in the alternative that Plaintiff

fails to state a claim for Intrusion upon seclusion for the reasons articulated in its

December 13, 2012 order:

Count IV of Plaintiff’s complaint (mistakenly labeled as “Count VI”) alleges

intrusion upon seclusion. To establish a prima facie claim of intrusion upon

seclusion, a plaintiff must show: “(1) the existence of a secret and private

subject matter; (2) a right possessed by the plaintiff to keep that subject

matter private; and (3) the obtaining of information about that subject matter

through some method objectionable to a reasonable man.” Doe v. Mills, 536

N.W.2d 824, 832 (Mich. Ct. App. 1995). An intrusion upon seclusion claim

“focuses on the manner in which the information was obtained.” Id.

(emphasis added).

5

2:14-cv-13573-RHC-MJH Doc # 10 Filed 05/20/15 Pg 5 of 7 Pg ID 59
In Lansing Association of School Administrators v. Lansing School District

Board of Education, the court considered an intrusion upon seclusion claim

in the context of a “reverse” Freedom of Information Act (“FOIA”) case, where

the plaintiff sued to prevent disclosure the of information within the FOIA. 

549 N.W.2d 15, 19 (Mich. Ct. App. 1996). The court dismissed the intrusion

upon seclusion claim because “the method employed to obtain the

information sought . . . , i.e., merely writing a letter of request, [was] neither

intrusive nor objectionable to the reasonable person.” Id. at 20-21. The court

noted that “[i]t is the contemplated disclosure, not the method of disclosure,

that plaintiffs find intrusive and objectionable.” Id. at 21.

Similarly, Plaintiff has failed to allege that Defendant obtained [her] credit

report in a manner objectionable to a reasonable person. Plaintiff claims that

Defendant “requested” [her] credit report from TransUnion but does not state

how that request was made. (Compl. ¶ 16, Dkt. # 1.) Plaintiff further alleges

that TransUnion sent a “screen shot” of [her] credit report to Defendant. (Id.

¶ 22.) Regardless of whether Defendant had a permissible purpose for

obtaining Plaintiff’s credit report, Plaintiff has not alleged facts suggesting

that Defendant obtained the report in an objectively intrusive manner. 

Accordingly, Plaintiff fails to state a claim for intrusion upon seclusion.

 (Case No. 12-12851, Dkt. # 7, Pg. ID 46–47).

IV. CONCLUSION

Daniel’s Intrusion upon seclusion claim has been before this court before and the

court decided it. Whether by operation of res judicata or the same reasoning the court

initially provided, the claim fares no better the second time around.

IT IS ORDERED that Defendant’s Motion to Dismiss (Dkt. # 5) is GRANTED and the

case is DISMISSED.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: May 20, 2015

6

2:14-cv-13573-RHC-MJH Doc # 10 Filed 05/20/15 Pg 6 of 7 Pg ID 60
I hereby certify that a copy of the foregoing document was mailed to counsel of record on

this date, May 20, 2015, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C2 ORDERS\14-13573.DANIEL.MotDismiss.ml.wpd

7

2:14-cv-13573-RHC-MJH Doc # 10 Filed 05/20/15 Pg 7 of 7 Pg ID 61