UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION 

DAVID DUSTERHOFT and VICKY 

DUSTERHOFT, 

Plaintiffs, 

vs. 

CERTEGY PAYMENT RECOVERY 

SERVICES, INC., CERTEGY, INC., 

CERTEGY CHECK SERVICES, INC., And 

FIDELITY NATIONAL INFORMATION 

SERVICES, INC., 

Defendants. 

Case No.: 2:09-cv-12372-PJD-MJH 

Hon. Patrick J. Duggan 

DAVID R. HEYBOER (P-27975) 

HEYBOER & FLOYD, PLLC 

Attorney for Plaintiffs 

511 Fort Street, Suite 532 

Port Huron, MI 48060 

(810) 982-5400 

Fax: (810) 982-1148 

hflaw@iwarp.net

MICHAEL P. DONNELLY (P-45221) 

FRASER TREBILCOCK DAVIS & 

DUNLAP, P.C. 

Attorneys for Defendants 

One Woodward Ave., Suite 1550 

Detroit, MI 48226 

(313) 237-7300 

Fax: (313) 961-1651 

mdonnelly@fraserlawfirm.com

COMBINED MOTION TO DISMISS

AND FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT

 NOW COME Defendants, Certegy Payment Recovery Services, Inc., Certegy, Inc., 

Certegy Check Services, Inc., and Fidelity National Information Services, Inc., by and through 

their attorneys Fraser Trebilcock Davis & Dunlap, P.C., and for their Motion to Dismiss and for 

Summary Judgment state as follows: 

1. Plaintiffs filed their Complaint against Certegy Payment Recovery Services, Inc., 

Certegy, Inc., and Certegy Check Services, Inc. on May 14, 2009, alleging violation of the 

Michigan Collection Practices Act (Count I), violation of the Michigan Consumer Protection Act 

(Count II), intentional infliction of emotional distress (Count III), negligent infliction of 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 1 of 22
emotional distress (Count IV), invasion of privacy (Count V) and violation of Fair Debt 

Collection Practices Act, 15 U.S.C. § 1692 (Count VI). Plaintiffs’ Complaint is based solely 

upon telephone calls that Plaintiffs allegedly received at their home from a facsimile telephone 

line that they attribute to one or more of the Defendants. 

2. On or about June 3, 2009, Plaintiffs filed their First Amended Complaint to add 

Fidelity National Information Service, Inc. The First Amended Complaint contained the same 

counts as the original Complaint. 

3. Defendants removed the matter to this Court on June 19, 2009. In lieu of an 

answer, Defendants bring this motion pursuant to Fed. R. Civ. Pro. 12(b)(6) and Fed. R. Civ. 

Pro. 56. 

4. Defendants’ investigation has determined that the facsimile telephone line from 

which the alleged telephone calls were coming from was at the time operated by Fidelity 

National Card Services, Inc., which is not a Defendant in this lawsuit nor is it a collection 

agency. 

5. The facsimile telephone line that Plaintiffs allege made telephone calls to their 

home telephone number was part of a larger computer system and was not associated with a 

specific fax machine. It was associated with a dispute line intended for receiving faxes only, and 

not for outgoing faxes. 

6. Defendants and Fidelity National Card Services, Inc. have reviewed their records 

and neither Plaintiffs nor their telephone number show up in any capacity in their system, and 

specifically, not as a debtor. Therefore, it appears that the calls were a result of a computer 

glitch, which simply chose the Plaintiffs’ number at random. 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 2 of 22
7. Plaintiffs have alleged that Defendants violated the Michigan Collection Practices 

Act, the Michigan Consumer Protection Act and the federal Fair Debt Collection Practices Act 

by virtue of making phone calls in an attempt to collect a debt. But as stated above, none of the 

Defendants were attempting to collect a debt from the Plaintiffs. Therefore, all of the statutory 

counts against the Defendants must fail as none of the actions, intentional or unintentional on the 

part of Defendants or Fidelity National Card Services, Inc., were in an effort to collect a debt. 

8. With regard to the common law claims of intentional infliction of emotional 

distress, negligent infliction of emotional distress and invasion of privacy, Plaintiffs have failed 

to state a claim and there is no genuine issue of material fact since there is no evidence that any 

of the actions with regard to Defendants or Fidelity National Card Services, Inc. was done 

intentionally or that such actions would rise to the level of being so outrageous and beyond 

action in a civilized society as to meet the threshold for the common law claims. 

9. Furthermore, the alleged offending facsimile telephone number was not operated 

by any of the Defendants in this case. 

10. Therefore, Plaintiffs have failed to state a claim against Defendants in this case 

and there is no genuine issue of material fact that Plaintiffs cannot support their claims against 

the Defendants in this matter. 

11. On July 16, 2009, Plaintiffs were advised through their counsel of the facts as 

stated above and Defendants requested Plaintiffs to dismiss this lawsuit with prejudice or 

otherwise concur in the present motion. They refused to do so. 

12. Plaintiffs’ action is not supported in law or in fact and therefore constitutes a 

frivolous action pursuant to Fed. R. Civ. Pro. 11. Defendants request that this Court award 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 3 of 22
sanctions to Defendants in the amount of actual attorney fees and costs incurred by the 

Defendants in this matter. 

 WHEREFORE, Defendants respectfully request this Honorable Court to dismiss 

Plaintiffs’ lawsuit with prejudice and award sanctions of attorney fees and costs incurred by 

Defendants. 

 Respectfully submitted, 

FRASER TREBILCOCK DAVIS & 

DUNLAP, P.C. 

Attorney for Defendants 

 By: /s/ Michael P. Donnelly 

 MICHAEL P. DONNELLY (P-45221) 

One Woodward Ave., Suite 1550 

Detroit, MI 48226 

Phone: (313) 237-7300 

Fax: (313) 961-1651 

mdonnelly@fraserlawfirm.com

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 4 of 22
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION 

DAVID DUSTERHOFT and VICKY 

DUSTERHOFT, 

Plaintiffs, 

vs. 

CERTEGY PAYMENT RECOVERY 

SERVICES, INC., CERTEGY, INC., 

CERTEGY CHECK SERVICES, INC., And 

FIDELITY NATIONAL INFORMATION 

SERVICES, INC., 

Defendants. 

Case No.: 2:09-cv-12372-PJD-MJH 

Hon. Patrick J. Duggan 

DAVID R. HEYBOER (P-27975) 

HEYBOER & FLOYD, PLLC 

Attorney for Plaintiffs 

511 Fort Street, Suite 532 

Port Huron, MI 48060 

(810) 982-5400 

Fax: (810) 982-1148 

hflaw@iwarp.net

MICHAEL P. DONNELLY (P-45221) 

FRASER TREBILCOCK DAVIS & 

DUNLAP, P.C. 

Attorneys for Defendants 

One Woodward Ave., Suite 1550 

Detroit, MI 48226 

(313) 237-7300 

Fax: (313) 961-1651 

mdonnelly@fraserlawfirm.com

BRIEF IN SUPPORT OF MOTION TO DISMISS

AND FOR SUMMARY JUDGMENT

 NOW COME Defendants, Certegy Payment Recovery Services, Inc., Certegy, Inc., 

Certegy Check Services, Inc., and Fidelity National Information Services, Inc., and for their 

Brief in Support of their motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6) and their 

motion for summary judgment pursuant to Fed. R. Civ. Pro. 56 state the following: 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 5 of 22
i

TABLE OF CONTENTS

Questions Presented .................................................................................................. ii 

Controlling Authority ................................................................................................ iii 

Index of Authorities .................................................................................................. iv, v 

I. Introduction ................................................................................................... 1 

II. Facts .............................................................................................................. 2 

III. Law and Argument ....................................................................................... 4 

A. Plaintiffs’ Claims Should Be Dismissed Because None 

 Of The Defendants Operated The Telephone Number That 

 Allegedly Made The Telephone Calls .............................................. 5 

 

 B. Plaintiffs’ Claims Under The Michigan Collection Practices 

Act (MCLA 339.915, et seq., The Michigan Consumer 

Protection Act (MCLA 445.901, et seq.) and The Federal 

Fair Debt Collection Practices Act, 15 U.S.C. 1692 Must Fail 

As None Of The Defendants Were Attempting To Collect A 

 Debt From Plaintiffs ......................................................................... 5 

C. Plaintiffs’ Common Law Claims Of Intentional Infliction Of 

 Emotional Distress, Negligent Infliction Of Emotional Distress 

 And Invasion Of Privacy Should Be Dismissed ................................ 7 

 i. Plaintiffs’ Claim For Intentional Infliction of Emotional 

 Distress Must Fail. ................................................................... 8 

ii. Plaintiffs’ Claim For Negligent Infliction of Emotional 

Distress Must Also Fail Because Plaintiffs Have Failed 

To State A Claim Against Defendants................................... 9 

iii. Plaintiffs’ Claim For Invasion Of Privacy Must Fail 

For They Have Failed To State A Claim Upon Which 

Relief Can Be Granted .......................................................... 9 

IV. CONCLUSION ............................................................................................. 11 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 6 of 22
ii

QUESTIONS PRESENTED

HAVE PLAINTIFFS FAILED TO STATE A CLAIM UPON 

WHICH RELIEF CAN BE GRANTED IN THEIR COMPLAINT 

AGAINST THE DEFENDANTS IN THIS MATTER? 

Plaintiffs answer, “No.” 

Defendants answer, “Yes.” 

SHOULD PLAINTIFFS COMPLAINT BE DISMISSED 

BECAUSE THERE IS NO GENUINE ISSUE OF MATERIAL 

FACT THAT DEFENDANTS ARE NOT LIABLE UNDER 

PLAINTIFFS’ COMPLAINT? 

Plaintiffs answer, “No.” 

Defendants answer, “Yes.” 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 7 of 22
iii

CONTROLLING AUTHORITY

Fed. R. Civ. Pro. 12(b)(6) and Fed. R. Civ. Pro. 56. 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 8 of 22
iv

INDEX OF AUTHORITY

Cases Page

Beaumont v. Brown, 401 Mich. 80; 257 N.W.2d 522 (1977) ................................... 10 

Bituminous Cas. Corp. v. J & L Lumber Co., Inc., 

 373 F.3d 807, 812 (6th Cir. 2004 .......................................................................... 4 

Bramlage v. Wells Fargo Home Mortgage, Inc., 

 144 Fed. Appx. 489, 493 (6th Cir. 2005) .............................................................. 5 

Brill v. Lante Corp., 119 F.3d 1266, 1275 (7th Cir. 1997) ........................................ 5 

Conley v. Gibson, 355 U.S. 41, 45-56; 78 S. Ct. 99; 

 2 L.Ed.2d 80 (1957) ............................................................................................. 4 

Daley v. LaCroix, 384 Mich. 4; 179 N.W.2d 390 (1970) ......................................... 9 

Doe v. Mills, 212 Mich.App. 73; 536 N.W.2d 824 (1995) ....................................... 10, 11 

Early Detection Center, P.C. v. New York Life Insurance Company, 

 157 Mich.App. 618; 403 N.W.2d 830 (1986) ...................................................... 10 

Hatchett v. U.S., 330 F.3d 875, 880 (6th Cir. 2003)................................................... 4 

Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003) ............................................... 4, 5 

Lewis v. Legrow, 258 Mich.App. 175, 198; 670 N.W.2d 675 (2003) ...................... 8 

Linebaugh v. Sheraton Michigan Corporation, 

 198 Mich.App. 335, 342; 497 N.W.2d 585 (1983) .............................................. 8 

Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) .................................................. 4 

Roberts v. AutoOwners, Inc. 422 Mich. 594; 374 N.W.2d 905 (1985) .................... 8 

Scheuer v. Rhodes, 416 U.S. 232, 236; 94 S. Ct. 1683; 40 L.Ed.2d 90 (1974) ........ 4 

Via The Web Designs, LLC v. Beauticontrol Cosmetics, Inc., 

 148 Fed. Appx. 483, 489 (6th Cir.2005) ............................................................... 5 

Wadlington v. Credit Acceptance Corp., 76 F.3d 103 (6th Cir. 1996) ...................... 7 

Weiner v. Klais & Co., 108 F.3d 86, 88-89 (6th Cir. 1997) ....................................... 4 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 9 of 22
v

Statutes Page

MCL 445.1501 – MCL 445.1546 ............................................................................. 6 

MCLA 339.915.......................................................................................................... 5 

MCLA 445.901.......................................................................................................... 5 

MCLA 445.903.......................................................................................................... 6 

15 U.S.C. § 1692 ....................................................................................................... 5, 6, 7 

Court Rules

Fed. R. Civ. Pro. 12(b)(6) ......................................................................................... iii, 4 

Fed. R. Civ. Pro. 56 ................................................................................................... iii, 4

Other

Restatement (Second) Tort, Section 652C ................................................................ 10

1974 PA 269 ............................................................................................................. 6 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 10 of 22
1

I. INTRODUCTION

 Plaintiffs’ Complaint is based upon allegations that a facsimile number operated by one 

or more of the Defendants made repeated telephone calls to their house between December 2007 

and May 2008. Plaintiffs allege both statutory claims (centering on unfair debt collection 

practices) and common law claims (which inter alia allege that Defendants’ conduct was so 

outrageous as to offend civilized society). However, Defendants have investigated this matter 

and determined that the number from which the alleged telephone calls were coming was not 

operated by any of the Defendants in this case. That is in an of itself enough to dismiss 

Plaintiffs’ complaint in its entirety. However, even assuming arguendo that the calls came from 

telephone number associated with one of the Defendants, both the statutory and common law 

claims must fail. 

As to the statutory claims under the federal and state collection practices acts, none of the 

Defendants, based on the facts as set forth in the First Amended Complaint, were attempting to 

collect a debt from either of the Plaintiffs. In fact, neither the Plaintiffs nor their telephone 

number are in any of the Defendants’ systems. Therefore, Plaintiffs have failed to state a claim 

and there is no genuine issue of material fact with regard to the statutory claims, since none of 

the Defendants operated the telephone number in question nor were they attempting to collect a 

debt from Plaintiffs. As to the Michigan Consumer Protection Act claim, the facts as claimed by 

the Plaintiffs in the complaint make clear none of the Defendants were involved in trade or 

commerce with them. Therefore, all of the statutory claims have failed to state a claim against 

the Defendants. 

 With regard to the common law claims, Plaintiffs have also failed to state a claim and 

there is no genuine issue of material fact since the undisputable evidence is that none of the 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 11 of 22
2

alleged telephone calls were made intentionally and were most likely the result of a computer 

glitch. Furthermore, even if the telephone calls did originate from one of the Defendants’ 

telephone lines, a computer glitch of that nature cannot be deemed such outrageous conduct as to 

meet the threshold for intentional infliction of emotional distress. Plaintiffs have failed to plead 

under their negligent infliction of emotional distress count that Defendants owed a duty to 

Plaintiffs that was breached, and, therefore that claim must fail. Plaintiffs have also failed to 

state a claim for invasion of privacy. To prevail on that count Plaintiffs must show that they had 

a matter that was private to them (their telephone number), that they had a right to keep the 

matter private and that the Defendants invaded their privacy by obtaining the information about 

the matter by a method which would be objectionable to a reasonable person. Since the 

telephone number was obtained through a computer glitch on a random basis, and Plaintiffs’ 

telephone number is a public telephone number, Plaintiffs cannot meet the threshold for this 

count. 

II. FACTS 

 Plaintiffs allege in their Complaint that they received repetitive telephone calls in 

December 2007 from a facsimile number of 1-727-570-8810. (See Exhibit A, Plaintiffs’ First 

Amended Complaint, p. 3). They allege that they contacted their telephone carrier, AT & T, and 

as a result the telephone calls stopped at that time. They further allege that in April 2008 the 

telephone calls began again. (See Exhibit A, Plaintiffs’ First Amended Complaint, p. 3.) They 

further allege that by May 1, 2008 the telephone calls stopped again. (See Exhibit A, Plaintiffs’ 

First Amended Complaint, p. 4.) They allege that on or about May 13, 2008 the telephone 

contact from Defendants began again. (See Exhibit A, Plaintiffs’ First Amended Complaint, p. 

4.) Plaintiffs allege that they attempted to contact “Defendants” by phone and spoke to an 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 12 of 22
3

individual in collections who identified herself as Toni as well as an Inger and/or Jason, advising 

them of the telephone calls. (See Exhibit A, Plaintiffs’ First Amended Complaint, pp. 3-4.) 

Plaintiffs do not make any allegations that there were any telephone calls beyond May 20, 2008. 

Defendants have investigated Plaintiffs’ claims in this matter and have determined that the 

number from which the alleged telephone calls came 1-727-570-8810, is operated by Fidelity 

National Card Services, Inc. (“Fidelity Card”) and not by any of the Defendants. See Exhibit B, 

Affidavit of Karen Graff, ¶3. 

Fidelity Card is a credit and debit card servicing company which facilitates and runs card 

services for various clients, including banks. (See Exhibit B, Affidavit of Karen Graff, ¶4.) 

The number identified above is a facsimile telephone line used to receive written disputes 

for charges on either debit or credit cards from customers of the debit or credit cards. (See Exhibit 

B, Affidavit of Karen Graff, ¶5.) 

Defendants’ investigation further shows that, to the extent the telephone calls were made 

from the number above, it was the result of an unknown computer glitch in Fidelity Card’s 

computer system. The number above is intended to receive facsimiles and not to make any 

telephone calls. 

Plaintiffs allege that they contacted Defendants and spoke to a “Toni”, “Inger” and/or 

“Jason” advising them of the telephone calls. (See Exhibit A, Plaintiffs’ First Amended Complaint, 

p. 4.) However, none of the persons identified in Plaintiffs’ Complaint worked for Fidelity Card. 

Therefore, Fidelity Card was not aware of the telephone calls being made at any time prior to the 

filing of this lawsuit. 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 13 of 22
4

III. STANDARD OF REVIEW 

A motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6) is procedural and tests the 

sufficiency of the complaint. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). In order for a 

trial court to grant a motion to dismiss for failure to state a claim upon which relief may be 

granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of 

facts entitling him to recovery. Conley v. Gibson, 355 U.S. 41, 45-56; 78 S.Ct. 99; 2 L.Ed.2d 80 

(1957). In reviewing a motion brought pursuant to Fed. R. Civ. Pro. 12(b)(6), a trial court may 

consider only the statements and facts contained in the pleadings and may not consider or rely on 

evidence outside the complaint, and the court must construe the complaint in the light most 

favorable to plaintiff. Weiner v. Klais & Co., 108 F.3d 86, 88-89 (6th Cir. 1997); Scheuer v. 

Rhodes, 416 U.S. 232, 236; 94 S.Ct. 1683; 40 L.Ed.2d 90 (1974). 

 A motion pursuant to Fed. R. Civ. Pro. 56(C) tests the factual support of a plaintiff’s 

claim. Bituminous Cas. Corp. v. J & L Lumber Co. Inc., 373 F.3d 807, 812 (6th Cir. 2004). In 

reviewing the motion, the court considers the pleadings, affidavits, and other documentary 

evidence filed in the action or submitted by the parties in the light most favorable to the 

nonmoving party. Hatchett v. U.S., 330 F.3d 875, 880 (6th Cir. 2003). The motion is properly 

granted if the documentary evidence presented shows that there is no genuine issue with respect 

to any material fact and the moving party is therefore entitled to judgment as a matter of law. 

See Bituminous, supra, at 812; Hatchett, supra, at 880. 

 Although a motion for summary judgment pursuant to Fed. R. Civ. Pro. 56(C) is 

generally premature if discovery has not closed, summary judgment may nevertheless be 

granted prior to the close of discovery if there is no fair likelihood that further discovery would 

yield support from the nonmoving party's position. See, e.g., Lanier v. Bryant, 332 F.3d 999, 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 14 of 22
5

1006 (6th Cir. 2003); Bramlage v. Wells Fargo Home Mortgage, Inc., 144 Fed. Appx. 489, 493 

(6th Cir. 2005); Via The Web Designs, LLC v. Beauticontrol Cosmetics, Inc., 148 Fed. Appx. 

483, 489(6th Cir. 2005); Brill v. Lante Corp., 119 F.3d 1266, 1275 (7th Cir. 1997). 

IV. LAW AND ARGUMENT

A. Plaintiffs’ Claims Should Be Dismissed Because None Of The Defendants 

Operated The Telephone Number That Allegedly Made The Telephone Calls. 

 Plaintiffs have failed to state a claim against any of the Defendants in this case because 

the telephone number which they allege originated the telephone calls to their home was not 

operated by any of the Defendants in this case. (See Exhibit B, Affidavit of Karen Graff, ¶ 7.) 

Plaintiffs’ counsel has confirmed that the only number from which the alleged telephone calls 

came from was the number identified in Plaintiffs’ First Amended Complaint. None of the 

Defendants in this case, intentionally or unintentionally, made any telephone calls to Plaintiffs’ 

residence. Therefore, Plaintiffs’ claims against the Defendants should be dismissed on this basis. 

B. Plaintiffs’ Claims Under The Michigan Collection Practices Act (MCLA 339.915, 

et seq.), The Michigan Consumer Protection Act (MCLA 445.901, et seq.) and 

The Federal Fair Debt Collection Practices Act, 15 U.S.C. 1692 Must Fail As 

None Of The Defendants Were Attempting To Collect A Debt From Plaintiffs 

 Plaintiffs claim the three statutory counts are based on Defendants’ alleged behavior in 

attempting to collect a debt. But as stated above and in the complaint, none of the Defendants 

were operating as a debt collector even if the alleged telephone calls were made to Plaintiffs’ 

residence. The Michigan Collection Practices Act states that a debt collector is defined as: 

(b) “Collection agency” means a person directly or indirectly engaged in soliciting a 

claim for collection or collecting or attempting to collect a claim owed or due or asserted 

to be owed or due another, or repossessing or attempting to repossess a thing of value 

owed or due or asserted to be owed or due another arising out of an expressed or implied 

agreement.... 

See MCLA 339.915. 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 15 of 22
6

 Next, the Michigan Consumer Protection Act does not cover the Defendants in this action 

because they were not engaged in “trade or commerce” with Plaintiffs. MCLA 445.903 states: 

(1) Unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of 

trade or commerce are unlawful and are defined as follows: 

See MCLA 445.903. “Trade or commerce” are defined in the act as follows: 

"Trade or commerce" means the conduct of a business providing goods, property, or 

service primarily for personal, family, or household purposes and includes the 

advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or 

property, tangible or intangible, real, personal, or mixed, or any other article, or a 

business opportunity. "Trade or commerce" does not include the purchase or sale of a 

franchise, but does include pyramid and chain promotions, as "franchise", "pyramid", and 

"chain promotions" are defined in the franchise investment law, 1974 PA 269, MCL 

445.1501 to 445.1546. 

None of the Defendants were engaged in trade or commerce with the Plaintiffs. Therefore, the 

Defendants are not covered under the Michigan Consumer Protection Act based on the 

undisputed facts in this case. 

 Finally, the federal Fair Debt Collection Practices Act (“FDCPA”) also does not apply to 

Defendants. It only applies to communications regarding a debt: 

(a) Communication with the consumer generally 

Without the prior consent of the consumer given directly to the debt collector or 

the express permission of a court of competent jurisdiction, a debt collector may 

not communicate with a consumer in connection with the collection of any debt-- 

[Emphasis added] See 15 U.S.C. § 1692c. Furthermore, Defendants where not attempting to 

collect a debt: 

(6) The term “debt collector” means any person who uses any instrumentality of 

interstate commerce or the mails in any business the principal purpose of which is the 

collection of any debts, or who regularly collects or attempts to collect, directly or 

indirectly, debts owed or due or asserted to be owed or due another. 

See 15 U.S.C. § 1692a. 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 16 of 22
7

Section 1692k of the FDCPA imposes liability only on a “ debt collector who fails to 

comply with [a] provision of this subchapter....” 15 U.S.C. § 1692k(a) (emphasis supplied). See 

Wadlington v. Credit Acceptance Corp., 76 F.3d 103 (6th Cir. 1996). 

 All three statutes define a debt collector as someone who is attempting to collect a debt 

on behalf of another, or require that the Defendants be involved in trade or commerce with the 

Plaintiffs for the statutes to apply. As stated the facts in the complaint make clear, none of the 

Defendants were attempting to collect a debt from Plaintiffs in this matter and had no 

relationship with the Plaintiffs. In fact, neither the Plaintiffs nor their telephone number are 

found in any of the systems of any of the Defendants. Plaintiffs even concede in their complaint 

that they are basing their complaint on their claim that Defendants were attempting to collect a 

debt. (See Exhibit A, Plaintiff’s First Amended Complaint, ¶¶23(a)-(g), 26(a)-(g) and 51.) 

Therefore, since none of the Defendants were attempting to collect a debt from Plaintiffs nor 

were they involved in trade or commerce with them, the statutory claims must fail as a matter of 

law. 

C. Plaintiffs’ Common Law Claims Of Intentional Infliction Of Emotional Distress, 

Negligent Infliction Of Emotional Distress And Invasion Of Privacy Should Be 

Dismissed. 

 There being no statutory claims against Defendants in this case, Plaintiffs’ attempts to 

bootstrap several state common law claims into this action. Each of them fail to state a claim 

against Defendants, and furthermore there is no genuine issue of material fact that any of the 

Defendants’ conduct, even taking all Plaintiffs’ allegations as true, would be sufficient to state a 

claim for cause of action under these counts. 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 17 of 22
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i. Plaintiffs’ Claim For Intentional Infliction of Emotional Distress Must Fail.

In order to state a claim for intentional infliction of emotional distress, Plaintiffs must be 

able to show that the Defendants’ conduct was extreme and outrageous conduct, that it was done 

intentionally or with complete recklessness, that it directly caused the Plaintiffs’ distress and that 

Plaintiffs suffered severe emotional distress. Roberts v. AutoOwners, Inc. 422 Mich. 594; 374 

N.W.2d 905 (1985). “A plaintiff can show that a defendant specifically intended to cause the 

plaintiff’s emotional distress or a defendant’s conduct was so reckless that ‘any reasonable 

person would know that emotional distress would result.’” Lewis v. Legrow, 258 Mich.App. 

175, 198; 670 N.W.2d 675 (2003). For a plaintiff to prevail on this claim, they must show that 

the defendant’s conduct was so outrageous and extreme that it went “beyond all possible bounds 

of decency” and would be “regarded as atrocious and utterly intolerable in a civilized 

community.” Linebaugh v. Sheraton Michigan Corporation, 198 Mich.App. 335, 342; 497 

N.W.2d 585 (1983). 

Plaintiffs’ claim that one or more of the Defendants acted intentionally in inflicting 

emotional distress through telephone calls made from the telephone number identified in 

Plaintiffs’ First Amended Complaint. However, as shown in Exhibit B, Affidavit of Karen 

Graff, ¶¶ 3, 7 and 8, there was no intentional act in making the telephone calls from the 

facsimile number to Plaintiffs’ residence. Clearly it was a result, if the calls were made, of a 

computer glitch and, in fact, was unknown by Defendants and Fidelity Card at the time they were 

being made. This is further supported by the fact that the line used to make the telephone calls 

was intended for incoming facsimile disputes for cardholders. It was not intended for outgoing 

calls. Therefore, if any of the Defendants had intended to make such telephone calls, which they 

did not, they certainly would not have used this telephone line and would not have used a 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 18 of 22
9

facsimile telephone line. Therefore, at worst, the telephone calls were made as a result of a 

computer glitch and were clearly unintentional acts. 

Furthermore, a computer glitch is not “beyond all possible bounds of decency” and no 

one would regard it as “atrocious and utterly intolerable in a civilized community.” In fact, 

computer glitches are an evermore common event as we become more computerized in this 

society. Given that there is no evidence that any action on the part of the Defendants was 

intentional, much less that the telephone number was operated by them, Plaintiffs’ claim for 

intentional infliction of emotional distress must fail. 

ii. Plaintiffs’ Claim For Negligent Infliction of Emotional Distress Must Also 

Fail Because Plaintiffs Have Failed To State A Claim Against Defendants. 

 In order to prevail on the claim of negligent infliction of emotional distress, Plaintiffs 

must show that Defendants owed a duty to Plaintiffs, that Defendants breached that duty, that the 

breach was the proximate result of Defendants’ negligent conduct, that the Defendants’ negligent 

conduct proximately caused emotional distress to Plaintiff, and that the emotional distress 

resulted in a definite and objective physical injury. Daley v. LaCroix, 384 Mich. 4; 179 N.W.2d 

390 (1970). Plaintiffs have failed to plead in their First Amended Complaint any duty owed to 

them by Defendants or that Defendants have breached that duty. (See Exhibit A, Plaintiffs’ First 

Amended Complaint.) Furthermore, Plaintiffs have failed to state a claim as Defendants did not 

engage in the conduct alleged in their Complaint. (See Exhibit B, Affidavit of Karen Graff, ¶ 7.) 

iii. Plaintiffs’ Claim For Invasion Of Privacy Must Fail For They Have Failed 

To State A Claim Upon Which Relief Can Be Granted. 

 Plaintiffs allege that Defendants invaded their privacy through the telephone calls that 

were made to their residence. However, in order to prevail on a claim for invasion of privacy, a 

plaintiff must proceed under one of four theories: intrusion, appropriation, disclosure of 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 19 of 22
10

embarrassing private facts, and false light. Beaumont v. Brown, 401 Mich. 80; 257 N.W.2d 522 

(1977). In order to prevail under a theory of appropriation, plaintiff must show that the 

defendant used a name or likeness to his or her pecuniary advantage, the name or likeness was 

the plaintiff’s, and the name and likeness was used in reference to the plaintiff. Restatement 

(Second) Tort, Section 652C. Clearly, Plaintiffs cannot proceed under this count because there 

was no use of their name or likeness and particularly not for the Defendants’ pecuniary 

advantage. 

 With regard to the theory of disclosure of embarrassing private facts, a plaintiff must 

show that a defendant disclosed information concerning the plaintiff, the disclosure of the 

information would be highly offensive to a reasonable person, and the information is of no 

legitimate concern to the public. Doe v. Mills, 212 Mich.App. 73; 536 N.W.2d 824 (1995). 

Clearly the facts as alleged in Plaintiffs’ First Amended Complaint do not support any claim for 

disclosure of embarrassing private facts by Defendants. 

 With regard to the theory of false light, a plaintiff must show a communication was 

broadcast to the public in general or publicized to a large number of people, the communication 

placed the injured party in light which would be highly offensive to a reasonable person, the 

defendant must have had knowledge of, and acted with reckless disregard, as to the falsity of the 

publicized matter and the false light in which the others would be placed. Early Detection 

Center, P.C. v. New York Life Insurance Company, 157 Mich.App. 618; 403 N.W.2d 830 

(1986). Clearly, there was no communication broadcast to the public in this case and therefore 

this theory would not apply. 

 The only claim that Plaintiffs appear to be making is under the theory of intrusion upon 

seclusion, solitude or private affairs. However, in order to prevail under this count, a plaintiff 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 20 of 22
11

must show that it has a matter that is private to him or her, the plaintiff has the right to keep the 

matter private, and the defendant invaded plaintiff’s privacy by obtaining information about the 

matter by a method that would be objectionable to a reasonable person. Doe v. Mills, supra. 

Clearly, a publicly published telephone number is not a matter that is considered to be private to 

Plaintiffs. A computer glitch is not a method of obtaining that number which would be 

considered objectionable to a reasonable person. Therefore, Plaintiffs’ claim for invasion of 

privacy must also fail as a matter of law. 

IV. CONCLUSION 

There is no legal theory to pursue the Defendants in this matter for what was clearly, at 

worst, a computer glitch. None of the Defendants were involved in the conduct alleged in the 

First Amended Complaint and even the non-party Fidelity Card has no liability for this type of 

computer glitch for all the reasons stated above. Therefore, Plaintiffs’ claims must fail as a 

matter of law. 

 WHEREFORE, Defendants respectfully request this Honorable Court to dismiss 

Plaintiffs’ lawsuit with prejudice and award sanctions of attorney fees and costs incurred by 

Defendants. 

 Respectfully submitted, 

FRASER TREBILCOCK DAVIS & 

DUNLAP, P.C. 

Attorney for Defendants 

 By: /s/ Michael P. Donnelly 

 MICHAEL P. DONNELLY (P-45221) 

One Woodward Ave., Suite 1550 

Detroit, MI 48226 

Phone: (313) 237-7300 

Fax: (313) 961-1651 

mdonnelly@fraserlawfirm.com

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 21 of 22
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION 

DAVID DUSTERHOFT and VICKY 

DUSTERHOFT, 

Plaintiffs, 

vs. 

CERTEGY PAYMENT RECOVERY 

SERVICES, INC., CERTEGY, INC., 

CERTEGY CHECK SERVICES, INC., And 

FIDELITY NATIONAL INFORMATION 

SERVICES, INC., 

Defendants. 

Case No.: 2:09-cv-12372-PJD-MJH 

Hon. Patrick J. Duggan 

DAVID R. HEYBOER (P-27975) 

HEYBOER & FLOYD, PLLC 

Attorney for Plaintiffs 

511 Fort Street, Suite 532 

Port Huron, MI 48060 

(810) 982-5400 

Fax: (810) 982-1148 

hflaw@iwarp.net

MICHAEL P. DONNELLY (P-45221) 

FRASER TREBILCOCK DAVIS & 

DUNLAP, P.C. 

Attorneys for Defendants 

One Woodward Ave., Suite 1550 

Detroit, MI 48226 

(313) 237-7300 

Fax: (313) 961-1651 

mdonnelly@fraserlawfirm.com

CERTIFICATE OF SERVICE

 The undersigned certifies that on July 23, 2009, he electronically filed the foregoing 

paper with the Clerk of the Court using the ECF system which will send notification of such 

filing to the following: 

 David R. Heyboer at hflaw@iwarp.net 

FRASER TREBILCOCK DAVIS & 

DUNLAP, P.C. 

Attorney for Defendants 

 By: /s/ Michael P. Donnelly 

 MICHAEL P. DONNELLY (P-45221) 

One Woodward Ave., Suite 1550 

Detroit, MI 48226 

Phone: (313) 237-7300 

Case 2:09-cv-12372-PJD-MJH Document 4 Filed 07/23/2009 Page 22 of 22