Opinion
Case No. 2:02-CV-1048TC
January 23, 2003
ORDER
Stanford Aderibigbe brings this claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and the Utah Consumer Sales Practices Act, Utah Code Ann. §§ 13-11-4 and 13-11-5, seeking recovery for allegedly abusive and deceptive collection practices by Evergreen Management Group, Inc. ("EMG"). The court's jurisdiction is proper under 15 U.S.C. § 1692k(d).
EMG's motion to dismiss concerns whether EMG and Mr. Aderibigbe entered into a settlement agreement before Mr. Aderibigbe filed suit on September 20, 2002. EMG urges the court to enforce the purported settlement agreement by dismissing Mr. Aderibigbe's case. Mr. Aderibigbe contends that EMG's purported acceptance did not comply with the terms of Mr. Aderibigbe's settlement offer, and therefore constituted a counteroffer.
BACKGROUND
This Order and the facts discussed below focuses on the alleged settlement agreement between EMG and Mr. Aderibigbe. The background facts in this case are set forth in the motion materials and will not be spelled out except as necessary.
Joe Rogers, Mr. Aderibigbe's counsel, sent a settlement offer dated August 29, 2002, to EMG. (See Letter from Rogers to EMG of 8/29/02 ("Offer"), Def's Mem. Supp. Mot. Dismiss ("Def's Supp. Mem."), Ex. A.) This offer contained several conditions, including the following: (1) acceptance "in a signed writing (fax acceptable) by no later than 3:30 p.m. Mountain Standard Time on Thursday, September 5, 2002"; (2) $500.00 payment to Mr. Aderibigbe and his counsel; and (3) "remov[al] [of] any and all negative credit reports or references relating to [Mr. Aderibigbe]." (Id. at 3.) The offer further explained that EMG's "failure to timely accept this offer may subject [EMG] to an immediate lawsuit without further notice." (Id. at 5.)
In an undated letter to Mr. Rogers, JC Curtis, EMG's Collection Manager, stated that
[w]e have chosen to accept [Mr. Aderibigbe's] offer of settlement, in the amount of $500.00. We have also agreed to release [Mr. Aderibigbe] from all claims originating from his residency at Holladay Hills Apartments. And agree to notify the credit-reporting agency that this account has been discharged and settled.
Requesting in writing acceptance of payment and letter with in [sic] (5) days. (Letter of Curtis to Rogers, Def's Supp. Mem., Ex. B.) Mr. Aderibigbe contends that this document was postdated September 12, 2002, and "was not received by [Mr. Rogers] until September 16, 2002." (Pl.'s Mem. Opp'n Mot. Dismiss ("Pl's Opp'n Mem."), Statement of Disputed Facts, at ¶ 5.) As explained in a September 16, 2002 letter, Mr. Aderibigbe treated this document as a counteroffer, which Mr. Aderibigbe rejected. (See Letter of Mr. Rogers to EMG of 9/16/02, Def.'s Supp. Mem., Ex. C, at 1.)
ANALYSIS
I. Standard of Review
EMG does not state the legal basis or standard for its motion to dismiss. The court, like Mr. Aderibigbe, treats EMG's motion as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Pl.'s Opp'n Mem. at 1 (discussing standards for Rule 12(b)(6)).) Rule 12(b)(6) authorizes a court to dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In evaluating a 12(b)(6) motion, a court must accept all well-pleaded facts as true. See Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). The court must also "view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed." Id. The Tenth Circuit has noted that a "motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery." Id.
II. Have Mr. Aderibigbe and EMG Entered Into a Settlement Agreement?
EMG seeks dismissal of Mr. Aderibigbe's case because of an alleged settlement agreement between the parties. Mr. Aderibigbe contends that EMG's purported acceptance did not comply with Mr. Aderibigbe's August 29, 2002 offer letter. Because Mr. Aderibigbe's allegations — which the court accepts as true for the purposes of this motion — indicate that no settlement agreement exists, EMG's motion to dismiss is denied.
"The issue of whether a contract exists is a mixed question of law and fact." Naimie v. Cytozyme Laboratories, Inc., 174 F.3d 1104, 1111 (10th Cir. 1999). "Under Utah law, a contract is not formed unless there is a meeting of the minds." Id. The Tenth Circuit, applying Utah law, has stated that "[a] meeting of the minds requires `assent by all the parties to the same thing in the same sense so that their minds meet as to all the terms.'" Id. (quoting Cessna Fin. Corp. v. Meyer, 575 P.2d 1048, 1050 (Utah 1978)).
An offeror "may specify the manner in which the offer must be accepted. If the offer is not accepted in the specified manner, mutual assent is lacking and no contract is formed." Crane v. Timberbrook Village, Ltd., 774 P.2d 3, 4 (Utah Ct.App. 1989). An acceptance that does not conform with the offer's terms — including the time for acceptance set by the offer — "is a counter-offer which must in turn be accepted by the original offeror to create a contract." Frandsen v. Gerstner, 487 P.2d 697, 700 (Utah 1971); see also Naimie, 174 F.3d at 1111 (stating that "[t]he offeree must manifest unconditional agreement to all of the terms of the offer") (internal quotation omitted).
In the present case, Mr. Aderibigbe's offer set the time in which EMG could agree to settle. (See Offer at 3.) The Offer conditioned acceptance on, among other factors, "accept[ance] in a signed writing (fax acceptable) by no later than 3:30 p.m. Mountain Standard Time on Thursday, September 5, 2002." (Id.) Mr. Aderibigbe alleges that Mr. Curtis's document, which was postdated September 12, 2002, "was not received by Plaintiff's counsel until September 16, 2002." (Pl.'s Opp'n Mem., Statement of Undisputed Facts, at ¶ 5.) Accepting Mr. Aderibigbe's alleged facts as true, and viewing all reasonable inferences in favor of Mr. Aderibigbe, EMG's acceptance was not timely and therefore was a counteroffer. See Frandsen, 487 P.2d at 700 (stating that a "late or defective acceptance is a counter-offer which must in tarn be accepted by the original offeror in order to create a contract"); Ruiz, 299 F.3d at 1181 (discussing standard for Federal Rule of Civil Procedure 12(b)(6)).
Mr. Aderibigbe contends that EMG's acceptance was defective in other respects. (See Pl.'s Opp'n Mem. at 3-4.) The court need not discuss these allegations, as EMG's untimely acceptance alone warrants denial of EMG's motion to dismiss.
ORDER
For the foregoing reasons, EMG's motion to dismiss is DENIED.