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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Laura B. Morton, Case No: 2:18-cv-445

Plaintiff, Judge Graham

v. Magistrate Judge Deavers

Kevin John O’Brien, et al.,

Defendants.

Opinion and Order

This action under the Fair Debt Collection Practices Act is before the Court on defendants’ 

post-trial motion for judgment as a matter of law under Rule 50(b), Fed. R. Civ. P. Defendants 

argue that plaintiff Laura B. Morton failed to produce sufficient evidence of an emotional distress 

injury to support the jury’s award of $50,000 in compensatory damages. 

Rule 50(b) is entitled, “Renewing the Motion After Trial,” and provides that if “the court 

does not grant a motion for judgment as a matter of law made under Rule 50(a),” then “the movant 

may file a renewed motion for judgment as a matter of law and may include an alternative or joint 

request for a new trial under Rule 59.”

It is undisputed here that defendants failed to move under Rule 50(a) for judgment as a 

matter of law at any time before the case was submitted to the jury. The Sixth Circuit has expressly 

held that a party “forfeit[s] its Rule 50(b) motion by not making a Rule 50(a) motion, which is not 

allowed based on a plain reading of the rules, due to constitutional concerns, due to our case law, 

and for policy reasons.” Hanover Am. Ins. Co. v. Tattooed Millionaire Ent., LLC, 974 F.3d 767, 789 (6th 

Cir. 2020).

The Sixth Circuit in Hanover reasoned that the “wording of Rule 50(b) shows that it is 

conditional on a Rule 50(a) motion having been made at trial,” and observed that the 1963 Advisory 

Committee Note to Rule 50(b) states that a “motion for judgment notwithstanding the verdict will

not lie unless it was preceded by a motion for a directed verdict made at the close of all the 

evidence.” Id. at 780–81. The court also cited abundant case law reaching the same conclusion. See, 

e.g., Kay v. United of Omaha Life Ins. Co., 709 Fed. App’x 320, 328 (6th Cir. 2017) (stating that the 

requirement of first raising a Rule 50(a) motion “protects the plaintiff’s Seventh Amendment right 

to a jury trial by requiring that parties raise important issues before the case is submitted to the 

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jury.”) (internal quotation marks omitted); Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1083 

(9th Cir. 2009) (“Failing to make a Rule 50(a) motion before the case is submitted to the jury 

forecloses the possibility of considering a Rule 50(b) motion.”).

Having failed to make a Rule 50(a) motion, defendants’ only recourse is to raise a 

jurisdictional challenge. See Hanover, 974 F.3d at 780 n. 8; Henderson ex rel. Henderson v. Shinseki, 562 

U.S. 428, 434 (2011). And they have done so. After filing their Rule 50(b) motion, defendants filed 

a “supplemental motion” arguing that the Court lacks jurisdiction because the plaintiff does not 

have standing under Article III to bring suit.

“To reach the merits of a case, an Article III court must have jurisdiction. ‘One essential 

aspect of this requirement is that any person invoking the power of a federal court must 

demonstrate standing to do so.’” Virginia House of Delegates v. Bethune-Hill, __ U.S. __, 139 S. Ct. 

1945, 1950, (2019) (quoting Hollingsworth v. Perry, 570 U.S. 693, 704 (2013)). “As a jurisdictional 

requirement, standing to litigate cannot be waived or forfeited.” Id. at 1951.

There are three elements of Article III standing : “(1) a concrete and particularized injury, 

that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable 

decision.” Id. at 1950. “A concrete injury is, like it sounds, real and not abstract. But that does not 

mean all concrete injuries must be tangible economic or physical harms. . . . [I]ntangible injuries can 

nevertheless be concrete.” Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 861 (6th Cir. 2020)

(internal quotation marks and citations omitted). 

Defendants focus on the first element and cite the Sixth Circuit’s decision in Buchholz for the 

proposition that a debtor’s mere feeling of anxiety is not enough to constitute a concrete injury. 

According to defendants, plaintiff failed to establish that she suffered anything other than 

generalized “worry,” “concern” or “aggravation” in reaction to defendants’ debt-collecting efforts.

In Buchholz the Sixth Circuit stated that “in the context of psychological injuries, alleging 

‘anxiety’ alone appears to fall short of cognizable injury as a matter of general tort law.” 946 F.3d at 

864. The court further explained that plaintiff’s “problem is that his anxiety, as alleged, amounts to 

the fear of a future harm—an ‘injury’ that is rarely cognizable.” Id. at 865. “[T]he fear of a future 

harm is not an injury in fact unless the future harm is ‘certainly impending.’” Id. (quoting Clapper v. 

Amnesty Int’l USA, 568 U.S. 398, 410 (2013)). Because the debt collection letters which Buchholz 

received did not “threaten litigation” if he failed to pay the alleged debt, the court found that he had 

failed to establish a fear of future harm which was certainly impending. Id. Turning to the second 

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element (traceability), the court found that plaintiff again had fallen short because his alleged injury 

was a “self-inflicted injury” for which he lacked standing to sue. Id. at 866 (citing cases).

It is true that Mrs. Morton testified at trial that she felt worried, concerned and aggravated 

by defendant’s debt-collecting tactics. But there was much more. Defendant’s May 3, 2017 letter to 

Mrs. Morton stated that the creditor had secured a judgment lien against her home and was “now in 

a position to foreclose.” Doc. 106 at PAGEID 676. The letter stressed that her “immediate 

attention” was required to pay the debt in one month because the creditor may foreclose on her 

home. Id. Feeling “threatened” by the letter, Mrs. Morton called defendant Mr. O’Brien, who made 

matters worse. Dec. 13, 2021 Tr. at pp. 9, 13. Mr. O’Brien said that he would not remove the lien,

and he became “angry” and “rude” and made her feel “pressured” to pay the debt (owed by her 

daughter and not by plaintiff) and “threatened” that he would foreclose on her home. Id. at pp. 11, 

13, 14, 16. Mrs. Morton testified that Mr. O’Brien’s words and his angry and threatening tone made 

her feel “helpless” and “sick” because she believed she would lose her home of 46 years where she 

had raised her family. Id. at pp. 4, 14–16. Her emotional state manifested into physical problems of 

high blood pressure, feeling lightheaded and dizzy, and sleeplessness for about a month. Id. at pp. 

16–17.

The evidence developed at trial amply supports the existence of a concrete injury. In 

contrast to the plaintiff in Buchholz, Mrs. Morton proved far more of an injury than self-inflicted 

anxiety. Mr. O’Brien’s letter and statements over the phone threatened foreclosure if Mrs. Morton 

failed to pay the alleged debt. And his threats created a fear of harm that was certainly impending. 

The letter carried a sense of urgency – warning Mrs. Morton that the creditor had already obtained a 

lien upon her home, giving her a one-month deadline in which to pay the alleged debt, and 

cautioning her to give the matter her “immediate attention” and to “not ignore this letter.” Doc. 

106 at PAGEID 676. Mr. O’Brien elevated Mrs. Morton’s fears by refusing her requests to remove 

the lien and making her feel after the phone call that foreclosure was more likely than it was before 

she called. Dec. 13, 2021 Tr. at p. 19. Further, Mrs. Morton testified to feeling pressured, 

threatened, helpless and sick, and she in turn experienced high blood pressure, dizziness and many 

sleepless nights.

The Court thus finds that plaintiff established at trial that she suffered a concrete injury fairly 

traceable to defendants’ conduct. The nature of her injuries are well within the type recognized by 

courts as sufficiently concrete to satisfy the standing requirement. See, e.g., Demarais v. Gurstel Chargo, 

P.A., 869 F.3d 685, 692 (8th Cir. 2017) (finding that alleged mental distress injuries caused by 

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abusive debt collection practices were sufficiently concrete); Thome v. Sayer L. Grp., P.C., No. 20-CV3058-CJW-KEM, 2021 WL 4690829, at *11 (N.D. Iowa Oct. 7, 2021) (holding that FDCPA 

plaintiff’s emotional distress from believing that she would lose her home was sufficiently concrete); 

Crandall v. Miller & Stevens, P.A., No. 20-CV-1793 (ECT/LIB), 2021 WL 4595535, at *3 (D. Minn. 

Oct. 6, 2021) (holding that FDCPA plaintiff’s “stress, anxiety, migraines, and emotions and 

moods[,]” “problems sleeping, anxiety,” and “PTSD and depression” were sufficiently concrete); 

Benjamin v. Rosenberg & Assocs., LLC, No. CV 19-3012, 2021 WL 3784320, at *6 (D.D.C. Aug. 26, 

2021) (holding that FDCPA plaintiff’s “mental distress” injuries caused by the false threat of 

foreclosure were “sufficiently concrete to pass Article III scrutiny”). See also Mayfield v. LTD Fin. 

Servs., L.P., No. 4:20-CV-01966, 2021 WL 4481089, at *4 (S.D. Tex. Sept. 30, 2021) (“[M]ost courts 

across the country . . . have found that an alleged FDCPA violation alone is sufficient to confer 

standing because it establishes that the consumer suffered the type of harm Congress intended to 

prevent—abusive debt collection practices.”) (citing cases).

Accordingly, defendants’ post-trial motions for judgment as a matter of law (Docs. 111, 112) 

are DENIED.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: March 31, 2022

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