Walker v. Gurstel Law Firm, P.C. et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ERICA WALKER,
Plaintiff,
v.
GURSTEL LAW FIRM, P.C.; ABC
LEGAL SERVICES, LLC; and JOHN
DOE,
Defendants.
Case No. 25-cv-3774 (JWB/JFD)
ORDER
and
REPORT AND
RECOMMENDATION
This action arises from the attempted service of process on Plaintiff Erica Walker
by a process server from Defendant ABC Legal Services, LLC (“ABC”). The attempted
service was of a summons and complaint for a Minnesota state-court action commenced
against Ms. Walker by a creditor, Capital One, N.A. Defendant Gurstel Law Firm, P.C.
(“Gurstel”) represents Capital One, N.A. in that action. Ms. Walker alleges that the
attempted service and Gurstel’s subsequent communications with a consumer protection
bureau violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq., and a Minnesota consumer-protection statute, Minn. Stat. § 332.37. She also brings
claims against Gurstel and ABC for invasion of privacy by intrusion upon seclusion,
common-law fraud, abuse of process, and vicarious liability/respondeat superior. In
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addition, Ms. Walker sues Defendant John Doe, the process server, under the FDCPA,
under Minn. Stat. § 332.37, for intrusion upon seclusion, and for abuse of process.1
The case is before the Court on Gurstel and ABC’s Motion for Judgment on the
Pleadings (Dkt. No. 49) and Ms. Walker’s Motion for Leave to File a Supplemental
Complaint (Dkt. No. 63).2 For the reasons set forth below, the Court recommends that
Gurstel and ABC’s motion for judgment on the pleadings be granted in part and denied in
part, and the Court denies Ms. Walker’s motion for leave to file a supplemental complaint.
I. 	Applicable Legal Standards
A motion for judgment on the pleadings filed pursuant to Federal Rule of Civil
Procedure 12(c) is analyzed under the same legal standard as a motion to dismiss for failure
to state a claim filed pursuant to Federal Rule of Civil Procedure 12(b)(6). Ashley Cnty. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). Rule 12(b)(6) requires dismissal when a
pleading fails “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
1 As of this writing, Defendant John Doe has not been served and so has not made an
appearance in this litigation. In this Order and Report and Recommendation, “Defendants”
means only Gurstel and ABC unless otherwise indicated.
2 The motion for judgment on the pleadings was referred to the undersigned for a report
and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Plaintiff’s motion to file a
supplemental complaint, which is opposed by Gurstel and ABC on the grounds of futility
(Defs.’ Mem. Opp’n Mot. Suppl. at 1–2, Dkt. No. 71), is before the Court pursuant to 28
U.S.C. § 636(b)(1)(A). If a party seeks further review of this Court’s findings and
conclusions for either motion (or both) the standard of review for the District Judge will be
de novo. See 28 U.S.C. § 636(b)(1) (establishing de novo review for objections to a report
and recommendation); D. Minn. LR 72.2(a)(3)(B) (establishing de novo review for an
appeal of a magistrate judge’s determination of the issue of futility in the context of a
motion to amend a pleading). Accordingly, the Court addresses the motions together in a
combined Order and Report and Recommendation.
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Twombly, 550 U.S. 544, 570 (2007). The plaintiff need not plead “detailed factual
allegations,” but mere “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Id. at 555. For a claim to be facially plausible, the party
must allege “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Court accepts as true the facts alleged in the complaint and views them in the pleading
party’s favor. Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).
“Judgment on the pleadings is appropriate if there is no material issue of fact to be resolved
and the moving party is entitled to judgment as a matter of law.” Buddy Bean Lumber Co.
v. Axis Surplus Ins. Co., 715 F.3d 695, 697 (8th Cir. 2013).
Federal Rule of Civil Procedure 15(d) governs supplemental pleadings.
(d) Supplemental Pleadings. On motion and reasonable notice, the court may,
on just terms, permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading
to be supplemented. The court may permit supplementation even though the
original pleading is defective in stating a claim or defense. The court may
order that the opposing party plead to the supplemental pleading within a
specified time.
Fed. R. Civ. P. 15(d). A supplemental complaint is different than an amended complaint.
“An amended pleading is designed to include matters occurring before the filing of the
[complaint] but either overlooked or not known at the time. A supplemental pleading,
however, is designed to cover matters subsequently occurring but pertaining to the original
cause.” 	United 	States 	v. 	Vorachek, 	563 	F.2d 	884, 	886 	(8th 	Cir. 	1977) 	(quoting
Berssenbrugge v. Luce Mfg. Co., 30 F. Supp. 101 (W.D. Mo. 1939)). Notwithstanding that
distinction, a motion to file a supplemental pleading under Rule 15(d) is governed by the
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same legal standards as a motion to amend a pleading under Rule 15(a). Fair Isaac Corp.
v. Experian Info. Sols. Inc., No. 06-CV-4112 (ADM/JSM), 2009 WL 10677527, at *14 n.7
(D. Minn. Feb. 9, 2009) (citing cases). Under Rule 15(a), leave to amend should be freely
granted when so required by justice, unless there is a showing of “undue delay, bad faith
on the part of the moving party, futility of the amendment or unfair prejudice to the
opposing party.” Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987); see Fed. R.
Civ. P. 15(a)(2). A proposed amendment (or supplementation) is futile if the amended
complaint (or supplemental complaint) “could not withstand a motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.” See Cornelia I. Crowell GST Tr. v.
Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008).
II. 	Background
A. 	Facts Alleged in the Complaint
Gurstel is a law firm that specializes in debt collection (Compl. ¶ 2, Dkt. No. 1-1)
and represents Capital One, N.A. in an action commenced against Ms. Walker in Minnesota
state court (Compl. Ex. 1, Dkt. No. 1-1 at 28–323). ABC provides service-of-process
services for debt collectors such as Gurstel. (Compl. ¶ 3.) Defendant John Doe is a process
server for ABC, who was identified by ABC in an internal investigation report as “Kpakpo
Moevi.” (Id. ¶ 4.)
3 The Complaint is attached to the Notice of Removal (Dkt. No. 1) filed by Gurstel and
ABC. The exhibits to the Complaint are not marked or separately paginated. The Court
therefore cites to the docket number and CM/ECF pagination for those exhibits.
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Ms. Walker, noting that service was attempted on her before a lawsuit was filed in
state court, alleges that Defendants created and used documents that resembled a complaint
and summons to create the false impression of an active lawsuit. (Id. ¶ 9.) On July 31, 2025,
John Doe approached Ms. Walker’s residence, rang the doorbell, attempted to open the
door, and paged through the purported summons and complaint before placing them under
the doormat. (Id. ¶¶ 10–11.) Ms. Walker did not answer the door, and no one personally
interacted with John Doe. (Id. ¶ 10.) Ms. Walker’s Ring security camera captured the
events. (Id.) Ms. Walker retrieved the documents from beneath the doormat the following
day, on August 1, 2025. (Id. ¶ 12.)
Ms. Walker filed a consumer complaint with the federal Consumer Financial
Protection Bureau (“CFPB”) on August 2 or 5, 2025.4 (Id. ¶ 13; Compl. Ex. 2, Dkt. No. 1-
1 at 33.) She alleged “(1) false service, (2) repeated harassment through multiple visits,
(3) dissemination of documents styled to mimic a lawsuit when none had been filed;
(4) misrepresentation of an internal reference number as a court docket number; and
(5) invasion of privacy by the process server reviewing debt-related documents at her
door.” (Compl. ¶ 13.) Gurstel submitted a written response to the CFPB on August 13,
2025. (Id. ¶ 14; Compl. Ex. 2, Dkt. No. 1-1 at 34–35.) In that response, Gurstel referred to
the documents as a “suit,” even though no lawsuit had been filed. (Compl. ¶ 14.) Gurstel
also stated that Ms. Walker had been personally served by John Doe and that the documents
were not left under the doormat. (Id.)
4 The Complaint alleges August 5; the consumer complaint itself is dated August 2.
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Ms. Walker filed a second consumer complaint with the CFPB on August 13, 2025.
(Id. ¶ 16; Compl. Ex. 11, Dkt. No. 1-1 at 43–44.) She alleged that Gurstel’s response to the
first complaint contained false and misleading statements, that Gurstel had simulated legal
process, that Gurstel had ignored her privacy concerns, and that Gurstel had violated debt-
collection and ethical rules. (Compl. ¶ 16.) That same day, Ms. Walker sent Gurstel and
ABC a written demand for John Doe’s affidavit of service and all records related to the
alleged service. (Id. ¶ 17.)
On August 18, 2025, Gurstel sent Ms. Walker a copy of ABC’s investigation report.
(Compl. ¶ 21; Compl. Ex. 13, Dkt. No. 1-4 at 4.) The report stated that John Doe claimed
he had personally served the documents on a white female with blonde hair, 5’8” to 5’10”
tall, weighing 140–160 pounds. (Compl. ¶ 23; Compl. Ex. 13, Dkt. No. 1-4 at 5.) Ms.
Walker is an African American woman with Sisterlocks, 5’6” tall, weighing 196 pounds.
(Compl. ¶ 23.) John Doe also claimed he had confirmed Ms. Walker’s identity. (Compl.
Ex. 13, Dkt. No. 1-4 at 7.) As further inquiry has now shown, almost every statement made
by John Doe was a lie.
Gurstel submitted a response to the second CFPB complaint on August 20, 2025—
after Gurstel received ABC’s report. (Compl. ¶ 19; Compl. Ex. 11, Dkt. No. 1-1 at 44–45.)
Gurstel did not provide information from ABC’s investigation report, however, instead
saying that it had relied on the affidavit of service and had reached out to ABC to obtain
additional information. (Id. ¶ 19; Compl. Ex. 11, Dkt. No. 1-1 at 44–45.)
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Ms. Walker filed a third consumer complaint on August 20, 2025, regarding
Defendants’ “continued misrepresentations” that she had been personally served and that
no privacy violations had occurred. (Compl. ¶ 27.)
Based on the facts alleged in the Complaint, Ms. Walker brings six claims for relief:
(1) false, deceptive, and misleading representations against all three Defendants, pursuant
to the FDCPA, Minn. Stat. § 332.37(12), and state common law; (2) intrusion upon
seclusion/privacy 	violations 	against 	all 	three 	Defendants, 	pursuant 	to 	Minn. 	Stat.
§ 332.37(12) and state common law; (3) failure to provide required documents/unlawful
collection practices against Gurstel and ABC, pursuant to the FDCPA and Minn. Stat.
§ 332.37(7); (4) fraudulent misrepresentation to a federal agency against Gurstel, pursuant
to the FDCPA and state common law; (5) abuse of process/simulated legal process against
all three Defendants, pursuant to the FDCPA, Minn. Stat. § 332.37(12), and state common
law; and (6) vicarious liability/respondeat superior liability against Gurstel and ABC,
pursuant to Minnesota law. (Compl. ¶¶ 30–46.)
B. 	Facts Alleged in the Proposed Supplemental Complaint
Consistent with the legal standards applicable to motions to supplement a pleading,
the proposed supplemental facts summarized in this section occurred after September 25,
2025, the date this case was removed to federal court.
On September 29, 2025, Gurstel mailed Ms. Walker a packet containing a document
titled “Plaintiff’s Reply to Defendant’s Answer and Counterclaim,” with the Capital One,
N.A. v. Walker state-court case caption. (Suppl. Compl. ¶ 31, Dkt. No. 66-1.) The case had
not yet been filed in state court. (Id. ¶ 33.) The accompanying “Affidavit of Service by
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Mail” had the notation “Hennepin County Court Admin. – via E-Filing,” which Ms. Walker
believes is typically used on formal court filings. (Id. ¶ 34.) Ms. Walker alleges that the
state-court caption and affidavit of service were fabricated and no such action existed. (Id.
¶ 35.)
On January 15, 2026, Ms. Walker was physically handed the Capital One, N.A. v.
Walker summons and complaint, just before a hearing in this case at the St. Paul federal
courthouse. (Id. ¶ 41.) The documents were substantively identical to the documents left
under her doormat on July 31, 2025. (Id.) Ms. Walker alleges that this attempt at service
of process was implicitly contrary to Defendants’ previous representation that the July 31,
2025 attempted service was valid. (Id. ¶¶ 41, 43–45.)
Ms. Walker alleges that Defendants’ conduct on September 29, 2025, and January
15, 2026, was false, deceptive, fraudulent, and misleading; simulated legal process; and
violated the FDCPA. (Id. ¶¶ 49, 56, 60, 64.) She seeks to supplement her complaint to add
the September 29th and January 15th events as additional violations to all claims except
intrusion upon seclusion.
III. 	Discussion
A. 	Count One: False, Deceptive, and Misleading Representations Against
Gurstel and ABC
Ms. Walker alleges that Gurstel and ABC violated 15 U.S.C. §§ 1692e(2)(A),
1692e(9), and 1692e(13), and Minn. Stat. § 332.37(12), by creating and disseminating
documents deliberately formatted to resemble a state-court summons and complaint when
no such suit had been filed. (Compl. ¶ 30.) She further accuses Defendants of fabricating a
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false affidavit of service representing that she had personally accepted the summons and
complaint, in violation of 15 U.S.C. §§ 1692e(2)(A), 1692e(8), and 1692e(10). (Id. ¶ 31.)
Ms. 	Walker 	contends 	these 	actions 	also 	constituted 	common-law 	fraudulent
misrepresentation. (Id.)
1. 	The State-Court Summons and Complaint
The Court begins with the allegation that Gurstel and ABC violated the FDCPA by
creating and disseminating documents formatted to resemble a state-court summons and
complaint when no such action had been filed. Title 15 U.S.C. § 1692e(2)(A) prohibits a
debt collector from making a false representation of the amount, character, or legal status
of a debt. Title 15 U.S.C. § 1692e(9) prohibits a debt collector from distributing or using a
written communication that simulates or is falsely represented to be a document issued or
authorized by a court. Title 15 U.S.C. § 1692e(13) prohibits a debt collector from making
a false implication or representation that documents constitute legal process.
The Court finds that the Complaint does not plead facts that would create a plausible
claim for relief under any of these provisions, because the creation and attempted service
of the state-court summons and complaint were authorized under Minnesota law. Under
the Minnesota Rules of Civil Procedure, a civil action is commenced when a summons and
complaint are served on a defendant. Minn. R. Civ. P. 3.01(a) (providing action is
commenced when summons is served); Minn. R. Civ. P. 3.02 (requiring complaint to be
served with the summons). It is service, not filing, that commences a civil action. The
action need not be filed in state court until one year after it is commenced. Minn. R. Civ.
P. 5.04(a).
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It was neither deceptive nor misleading for Gurstel and ABC to attempt service of
the summons and complaint on Ms. Walker before the state-court action was filed. The
summons and complaint were authentic and signed by a licensed attorney. Commencing
an action pursuant to Minnesota state procedural rules does not violate the FDCPA. It is
not a false representation about a debt, a simulation of a court-issued or authorized
document, or false legal process. Thus, Ms. Walker has not sufficiently alleged a false,
deceptive, or misleading representation.
In addition, Ms. Walker has not alleged facts showing that the state-court summons,
complaint, or attempted service were material in the context of § 1692e. The Eighth Circuit
has held that a false statement is not actionable under § 1692e unless it is material. Hill v.
Accts. Receivable Servs., LLC, 888 F.3d 343, 346 (8th Cir. 2018). The FDCPA “is designed
to provide information that helps consumers to choose intelligently, and by definition
immaterial information neither contributes to that objective (if the statement is correct) nor
undermines it (if the statement is incorrect).” Hahn v. Triumph P’ships LLC, 557 F.3d 755,
757–58 (7th Cir. 2009) (quoted in Hill, 888 F.3d at 345–46); see Caulfield v. Am. Acct. &
Advisors, Inc., No. 12-CV-2761 (DSD/JJK), 2013 WL 1953314, at *2 (D. Minn. May 10,
2013) (describing a material statement as one that “undermined [the debtor’s] ability to
intelligently choose her action regarding the debt”). Relatedly, if no one was actually
misled or deceived by the communication, no violation of § 1692e occurred. See
Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814, 819 (8th Cir. 2012); Janson v.
Katharyn B. Davis, LLC, 806 F.3d 435, 437–38 (8th Cir. 2015). The Complaint pleads no
facts from which the Court could reasonably infer that the summons, complaint, or
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attempted service undermined Ms. Walker’s ability to intelligently choose her actions
regarding the debt or that she was actually influenced or misled by the attempted service.
2. 	The Affidavit of Service
The Court now turns to the FDCPA claims based on the affidavit of service that
falsely asserted Ms. Walker had been personally served and on Gurstel’s representation to
the CFPB that Ms. Walker had been personally served. Title 15 U.S.C. § 1692e(8) prohibits
a debt collector from communicating false credit information, and § 1692e(10) prohibits
using a false representation or deception to collect or attempt to collect a debt. And, as
recounted 	above, 	§ 1692e(2)(A) 	prohibits 	a 	debt 	collector 	from 	making 	a 	false
representation of the amount, character, or legal status of a debt.
Ms. Walker has not alleged a plausible claim for relief under these provisions
because the alleged falsity in the affidavit of service was not about a debt or false credit
information. See 15 U.S.C. § 1692e(2)(A), (8). Rather, the alleged falsity was that Ms.
Walker had been personally served with a summons and complaint. The Court need not
decide whether a false statement that Ms. Walker had been served could have been used
later as part of an application for default and then a motion for default judgment, or whether
those hypothetical steps would have been an effort to collect a debt, because the affidavit
of service was not used to attempt to collect a debt, see id. § 1692e(10), or used in
connection with the collection of a debt, see id. § 1692e. The affidavit was never used at
all; it was not even sent to Ms. Walker or the CFPB. Gurstel did send ABC’s investigation
report to Ms. Walker, but only at her request, pursuant to her written demand for all records
related to the alleged service of process. A document sent to Ms. Walker at her own request
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does not have the “animating purpose” to “induce payment” by her. See McIvor v. Credit
Control 	Servs., 	Inc., 	773 	F.3d 	909, 	914 	(8th 	Cir. 	2014) 	(concluding 	that 	“for 	a
communication to be in connection with the collection of a debt, an animating purpose of
the communication must be to induce payment by the debtor”) (quotation omitted).
With respect to the allegation that Gurstel repeated false information from the
affidavit in its August 13, 2025 response to the CFPB, that also was not a communication
made in connection with the collection of a debt. Gurstel’s communication was sent to a
federal agency in response to a complaint filed by Ms. Walker, not a communication with
the animating purpose to induce payment by Ms. Walker.
Ms. Walker also has not shown that the false information in the affidavit or Gurstel’s
or ABC’s statements about the affidavit were material or that she or anyone else were
misled. She has not alleged, for example, that the statements influenced her or induced her
to act to her detriment. To the contrary, Ms. Walker knew the information in the affidavit
was false.
In sum, Gurstel and ABC did not communicate false credit information, use a false
representation as a means to collect a debt, or make a false representation about the nature
or legal status of a debt with respect to the affidavit of service. Nor has Ms. Walker
plausibly alleged that any statements in the affidavit or about the affidavit were material or
that anyone was misled.
3. 	Process Servers
ABC argues that it is exempt from the FDCPA because it is a process server. The
FDCPA excludes process servers from the definition of “debt collector.” See 15 U.S.C.
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§ 1692a(6)(D) (excluding “any person while serving or attempting to serve legal process
on any other person in connection with the judicial enforcement of any debt”). An
allegation that a process server falsely executed an affidavit of service, however, removes
it from the process-server exception. See Harbison v. Litow & Pech, P.C., No. 4:12-CV-
2180 SNLJ, 2013 WL 1095654, at *5 (E.D. Mo. Mar. 18, 2013) (citing cases). The Court
declines to apply the exception here, in light of allegations that ABC’s process server John
Doe falsified an affidavit of service.
4. 	Minnesota Statute § 332.37(12)
Minnesota Statute § 332.37(12) prohibits violations of the FDCPA while attempting
to collect a debt. Thus, resolution of this claim follows the resolution of Ms. Walker’s
FDCPA claims. Accordingly, for the reasons set forth above, the Court concludes that Ms.
Walker has not alleged a plausible Minn. Stat. § 332.37(12) claim in Count One.
5. 	Common-Law Fraud
Ms. Walker alleges that the false affidavit and Gurstel’s statement to the CFPB that
she 	was 	personally 	served 	were 	fraudulent 	misrepresentations. 	The 	elements 	of 	a
fraudulent misrepresentation claim are:
(1) there was a false representation by a party of a past or existing material
fact susceptible of knowledge; (2) made with knowledge of the falsity of the
representation or made as of the party’s own knowledge without knowing
whether it was true or false; (3) with the intention to induce another to act in
reliance thereon; (4) that the representation caused the other party to act in
reliance thereon; and (5) that the party suffer[ed] pecuniary damage as a
result of the reliance.
Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn. 1986). Fraud must be
pleaded with particularity, though intent and knowledge may be generally alleged. Fed. R.
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Civ. P. 9(b). Here, the Complaint does not allege that a false representation was made with
the intention to induce Ms. Walker to act in reliance, that the representation caused her to
act in reliance, or that she suffered pecuniary damage as a result. Accordingly, the
fraudulent misrepresentation claim alleged in Count One against Gurstel and ABC should
be dismissed.
6. 	Allegations in the Proposed Supplemental Complaint
Ms. Walker 	proposes 	to add two 	violations of the FDCPA to 	Count One:
(1) Gurstel’s mailing to her of a packet containing Capital One, N.A.’s reply to Ms.
Walker’s purported answer in the state-court case, Capital One, N.A. v. Walker, on
September 29th; and (2) the service of process at the courthouse on January 15th. (Suppl.
Compl. ¶ 49.) Ms. Walker alleges the September 29th mailing and the January 15th service
of process were false, deceptive, and misleading representations, and simulated legal
process, in violation of 15 U.S.C. § 1692e(2), (5), (9), (10), and (13). (Suppl. Compl. ¶ 49.)
The Court denies this aspect of the motion to supplement because supplementation
would be futile. The January 15th service of process did not violate the FDCPA for the
same reasons the attempted July 31st service did not. Minnesota state procedural rules
expressly permit the service of a summons and complaint before the documents are filed
with the court. Thus, the alleged service of process on January 15th was not a false
representation about a debt, a simulation of a court-issued or authorized document, or false
legal process. See 15 U.S.C. § 1692e(2)(A), (9), (13). Nor has Ms. Walker shown that the
alleged service was a threat to take action that could not legally be taken. See 15 U.S.C.
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§ 1692e(5). After Gurstel determined that the July 31st attempted service was not effective,
Gurstel simply re-attempted service. Ms. Walker has not shown that to violate the FDCPA.
With respect to the September 29th mailing, Gurstel explains that the “reply” was
drafted and sent to Ms. Walker by mistake. (Defs.’ Mem. Opp’n Mot. Suppl. at 3 n.1, Dkt.
No. 71.) When Gurstel received Ms. Walker’s Complaint filed in this action, it appears to
have mistakenly believed the document was Ms. Walker’s answer to Capital One, N.A.’s
state-court complaint against her. (Id.) Based on that mistake, Gurstel mailed Ms. Walker
the reply. (Id.) This was a highly unfortunate error, particularly coming on the heels of the
false affidavit, but Gurstel’s explanation is not implausible and is consistent with the
pleadings. Plaintiff’s Complaint was filed in state court on September 2, and Gurstel mailed
the reply on September 29. (Suppl. Compl. ¶¶ 45–46.) In addition, the reply’s reference to
paragraphs in what Gurstel thought was Ms. Walker’s answer match the paragraphs in her
Complaint. (See Suppl. Compl. Ex. 16, Dkt. No. 67-1 (i.e., denying allegations in
paragraphs 8–46, which are the factual allegations in the Complaint).)
Although Gurstel made a mistake, Gurstel did not violate the FDCPA. As discussed
fully above, the state-court action Capital One, N.A. v. Walker was commenced pursuant
to Minnesota law, even though it had not been filed. Gurstel’s mailing of a “reply”
containing the case caption and in the format of a formal court document was not a false
representation about a debt, a simulation of a court-issued or authorized document, false
legal process, or a threat to take action that could not legally be taken. Gurstel’s mistake
was careless, but it was not a violation of the FDCPA. See Seaworth v. Messerli, No. 09-
3437 (RHK/LIB), 2010 WL 3613821, at *6 (D. Minn. Sept. 7, 2010) (finding that service
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of a summons and complaint with an incorrect case number did not violate the FDCPA),
aff’d, 414 F. App’x 882 (8th Cir. 2011).
Moreover, Ms. Walker has not alleged facts from which the Court could reasonably
infer that the September 29th mailing or the January 15th service were material in the
context of § 1692e, see Hill, 888 F.3d at 346, or that Ms. Walker was actually misled or
deceived by the communications, see Hemmingsen, 674 F.3d at 819. Accordingly, the
Court denies Ms. Walker’s motion to supplement Count One as futile.
B. 	Count 	Two: 	Intrusion 	upon 	Seclusion/Privacy 	Violations 	Against
Gurstel and ABC
Ms. Walker alleges that Defendants violated her right to privacy when John Doe
(1) reviewed debt-related documents on her doorstep in view of her neighbors and
passersby, (2) left the documents beneath her doormat, and (3) fabricated interactions that
falsely depicted personal service. (Compl. ¶ 32.) She contends these actions also violated
Minn. Stat. § 332.37(12). (Id. ¶ 33.)
In Minnesota, the tort of intrusion upon seclusion has three elements: “(a) an
intrusion; (b) that is highly offensive; and (c) into some matter in which a person has a
legitimate expectation of privacy.” Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741,
744 (Minn. Ct. App. 2001). Gurstel and ABC argue that Ms. Walker has not pleaded “an
intrusion” because “an intrusion” must be a physical invasion into a private area or the use
of one’s senses to invade another person’s private affairs. (Defs.’ Mem. Supp. Mot. J.
Pleadings at 17 (citing Jones v. Walgreens Co., No. A11-1261, 2012 WL 1658895, at *4
(Minn. Ct. App. May 14, 2012) (“An intrusion can be a physical intrusion into a private
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place or an intrusion made by defendant’s senses, such as overhearing plaintiff’s private
affairs.”)), Dkt. No. 51.) An intrusion can also be, for example, opening a person’s personal
and private mail or examining her private bank account information. Restatement (Second)
of Torts § 652B, cmt. b. (1977). There is no actionable intrusion, however, for examining
a public record. Id., cmt. c.
The Court concludes it is possible that the process server’s review of the summons
and complaint was an intrusion. The summons and complaint had not been filed publicly,
and they contained private information such as the amount of a debt Ms. Walker allegedly
owed and the last four digits of her credit account number. (See Compl. Ex. 1, Dkt. No. 1-
1 at 28–32.) It is also possible that the process server’s placement of the summons and
complaint under the doormat was an intrusion. The doormat was in front of Ms. Walker’s
front door and was arguably part of the home’s curtilage.
Other alleged conduct was also not an intrusion. For one, the process server’s
alleged preparation of a false affidavit is appalling behavior, but it was simply not an
intrusion of any kind. And two, with respect to the allegation that personal and confidential
information may have been exposed to or seen by neighbors or passersby when John Doe
paged through the documents, publicity of information is not an element of intrusion upon
seclusion. Restatement (Second) of Torts § 652B, cmt. a. Thus, neither of these allegations
state a plausible claim for relief.
Turning to whether an actionable intrusion was “highly offensive,” the question is
whether a reasonable person would find it so. Kennedy v. City of Braham, 67 F. Supp. 3d
1020, 1035 (D. Minn. 2014) (citing Lake v. Wal–Mart Stores, Inc., 582 N.W.2d 231, 233
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(Minn. 1998)). This is generally a question of fact for the jury; it is “a question of law only
if reasonable persons can draw only one conclusion from the evidence.” Id. (cleaned up).
Factors to weigh “include the degree of intrusion, the context, conduct and circumstances
surrounding the intrusion as well as the intruder’s motives and objectives, the setting into
which he intrudes, and the expectations of those whose privacy is invaded.” Bauer v. Ford
Motor Credit Co., 149 F. Supp. 2d 1106, 1109 (D. Minn. 2001).
Gurstel and ABC argue that the context of the attempted service was “ordinary
service of a summons and complaint” and note that the process server did not enter Ms.
Walker’s home. (Defs.’ Mem. Supp. Mot. J. Pleadings at 17.) Gurstel and ABC further
argue that a plaintiff must be able to serve process on a defendant without exposing itself
to tort liability. (Id. at 17–18.) Gurstel and ABC fail to grasp the nature of the possible
claim against John Doe. The potentially actionable intrusions were the process server’s
viewing of the summons and complaint and his leaving the summons and complaint under
the doormat. Neither of those events were necessary to effect service of process. Indeed,
leaving a summons and complaint under a doormat does not achieve personal service.
Thus, the attempted service cannot be fairly characterized as “ordinary.” As to the
argument that a plaintiff must be able to serve a summons and complaint without risking
tort liability, John Doe did not need to review the documents in order to serve them. Thus,
the argument fails. Finally, it was not necessary for John Doe to enter Ms. Walker’s home
for the tort of intrusion upon seclusion to have occurred.
Before moving on to the statutory aspect of this claim, the Court considers John
Doe’s employment status. Ms. Walker has alleged that John Doe was either an employee
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or an independent contractor of ABC. (Compl. ¶ 4.) Viewing the allegations in Ms.
Walker’s favor, the Court will not recommend dismissal of the intrusion upon seclusion
claim against ABC. It may be determined later in the case that John Doe was an
independent contractor, but for present purposes it is plausible that John Doe was an
employee of ABC and that ABC could be directly liable for the intrusion if it ratified John
Doe’s conduct. See Restatement (Third) of Agency § 7.03 (2006). Ms. Walker has not
alleged, however, that John Doe was an employee of Gurstel, though she does allege that
Gurstel could be vicariously liable for John Doe’s actions. Thus, the Court will recommend
that the intrusion upon seclusion claim against Gurstel be dismissed, but as discussed in
Part III.F that a claim for vicarious liability against Gurstel remain.
Ms. Walker contends that Gurstel and ABC also violated Minn. Stat. § 332.37(12)
by invading her privacy. That statute bars collection agencies from violating the FDCPA,
not from invading a consumer’s privacy. Thus, the Court recommends dismissing this
aspect of the intrusion upon seclusion claim against both Gurstel and ABC.
C. 	Count Three: Failure to Provide Required Documents and Unlawful
Collection Practices Against Gurstel and ABC
1. 	Original Complaint
Ms. Walker alleges that Gurstel and ABC violated 15 U.S.C. § 1692g(b) and Minn.
Stat. § 332.37(7) by not providing, upon her demand and within five days, the affidavit of
service, original photographs, and metadata related to the alleged service of process.
(Compl. ¶¶ 34–35, 37.) Rather, Gurstel and ABC mailed ABC’s investigation report but
no affidavit or any other documentation. (Id. ¶ 35.) Moreover, Ms. Walker alleges that
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Defendants continued collection activities, including submitting false statements to the
CFPB and mailing her a letter expressly marked as a debt collection communication on
August 18, 2025. (Id. ¶ 36.)
Title 15 U.S.C. § 1692g governs the validation of debts. Section 1692g(b) prohibits
debt collection activities concerning a disputed debt when a debt collector sends an “initial
communication” to a consumer “in connection with the collection of any debt,” 15 U.S.C.
§ 1692g(a), and the consumer notifies the debt collector “in writing within the thirty-day
period described in subsection (a) that the debt, or any portion thereof, is disputed,” id.
§ 1692g(b). “A communication in the form of a formal pleading in a civil action shall not
be treated as an initial communication for purposes of subsection (a).” Id. § 1692g(d).
Here, the alleged “initial communication” from Gurstel was the summons and
complaint, which are formal court pleadings excluded from the definition of an “initial
communication.” See id. Thus, the five-day obligation to furnish a written notice imposed
by § 1692g(a) was not triggered. But even if it were, the requested affidavit of service,
photographs, and metadata do not fall under the written-notice requirements of § 1692g(a),
which requires the written notice to contain only:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of
the notice, disputes the validity of the debt, or any portion thereof, the debt
will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing
within the thirty-day period that the debt, or any portion thereof, is disputed,
the debt collector will obtain verification of the debt or a copy of a judgment
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against the consumer and a copy of such verification or judgment will be
mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-
day period, the debt collector will provide the consumer with the name and
address of the original creditor, if different from the current creditor.
Id. § 1692g(a). The statute does not require the debt collector to provide documents or
information such as the affidavit of service, photographs, and metadata requested by Ms.
Walker.
As to the investigation report mailed on August 18, the report was not covered by
§ 1692g(b) because there was no qualifying “initial communication” from any Defendant
to Ms. Walker. In addition, Gurstel mailed the report to Ms. Walker in response to her
written demand for the affidavit of service and all related documents. A communication
that was not sent to collect a debt but was sent in response to a debtor’s request does not
fall under the FDCPA. See Derisme v. Hunt Leibert Jacobson P.C., 880 F. Supp. 2d 311,
330–31 (D. Conn. 2012); Grambart v. Glob. Payments Check Recovery Servs., Inc., No.
10-CV-4399 (DSD/JJK), 2011 WL 124230, at *2 (D. Minn. Jan. 14, 2011).
Minnesota Statute § 332.37(7) prohibits a collection agency from publishing a list
of debtors, using “shame cards” or intimidation, or advertising to sell a claim as a means
of forcing payment. There are no allegations of such conduct.
The Court recommends that Count Three be dismissed.
2. 	Supplemental Complaint
Ms. Walker proposes to add two instances of collection activity to Count Three: the
“reply” mailed on September 29th and service of the summons and complaint on January
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15th. The statute under which she proposes to sue is § 1692e, whereas her original claims
under Count Three were brought under § 1692g. (See Suppl. Compl. ¶ 56.)
The Court denies this aspect of the motion to supplement because supplementation
would be futile. With respect to a supplemental claim brought under § 1692e, the claim
fails because Ms. Walker has not alleged facts that the September 29th mailing or the
January 15th service were material, misleading, or deceptive. If Ms. Walker intended to
sue under § 1692g, the claim fails because there was no qualifying initial communication
from a debt collector.
D. 	Count Four: Fraudulent Misrepresentation to Federal Agency Against
Gurstel
1. 	Original Complaint
Ms. Walker asserts that Gurstel knowingly misrepresented facts to the CFPB on
August 20, 2025, when it said it had reached out to ABC to obtain additional information.
(Compl. ¶ 38.) This was false, according to Ms. Walker, because Gurstel had already
received ABC’s investigation report. (Id.) Ms. Walker contends that Gurstel also knew the
affidavit of service had been falsified yet repeated the process server’s false narrative in its
response to the CFPB. (Id. ¶ 39.) Ms. Walker contends these misrepresentations were
deliberate, intentional, and knowing, and violated both 15 U.S.C. § 1692e(10) and
common-law fraud principles. (Id. ¶ 40.)
Title 	15 	U.S.C. 	§ 	1692e(10) 	prohibits 	a 	debt 	collector 	from 	using 	a 	false
representation or deception to collect or attempt to collect a debt. To be actionable under
§ 1692e, the false statement must be material, Hill, 888 F.3d at 346, and someone must
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have actually been misled or deceived by the communication, Hemmingsen, 674 F.3d at
819. The Complaint’s allegations are deficient in both respects. There are no facts from
which the Court could reasonably infer that Gurstel’s statements to the CFPB were material
or that Ms. Walker or anyone else was influenced by or misled by the alleged statements.
Nor did Gurstel use the August 20th response to the CFPB complaint to collect or attempt
to collect a debt. Gurstel sent the response only because Ms. Walker filed a complaint with
the CFPB.
With respect to Ms. Walker’s common-law fraud claim, the Complaint does not
allege that a false representation was made with the intention to induce Ms. Walker to act
in reliance, that the representation caused her to act in reliance, or that she suffered
pecuniary damage as a result. Accordingly, Count Four should be dismissed in its entirety.
2. 	Supplemental Complaint
Ms. Walker proposes to supplement Count Four with allegations that Defendants
physically handed Ms. Walker documents on January 15th without disclosing their
duplicative nature or correcting previous false statements. (See Suppl. Compl. ¶ 60.) The
Court denies this aspect of the motion to supplement because supplementation would be
futile. 	The 	supplemental 	complaint 	does 	not 	demonstrate 	that 	the 	new 	alleged
misrepresentations were material, misleading, or deceptive. Thus, the FDCPA claim is
futile. The supplemental complaint also fails to allege that a false representation was made
with the intention to induce Ms. Walker to act in reliance, that the representation caused
her to act in reliance, or that she suffered pecuniary damage as a result. Accordingly, the
state-law fraud claim is futile as well.
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E. 	Count Five: Abuse of Process/Simulated Legal Process Against Gurstel
and ABC
Ms. Walker alleges that Defendants created the false appearance of a lawsuit
through simulated pleadings, faulty service, and a fabricated affidavit of service, violating
15 U.S.C. § 1692e(9) and Minn. Stat. § 332.37(12). (Compl. ¶¶ 41–43.) The Court
recommends that this claim against Gurstel and ABC be dismissed for the reasons
enunciated in Part III.A.
In Ms. Walker’s proposed supplemental complaint, she alleges that Defendants
abused legal process by using documents formatted to mimic formal pleadings without
lawful service of process or a valid underlying case. The Court denies supplementation on
the basis of futility, for the reasons given in Part III.A.
F. 	Count Six: Vicarious Liability/Respondeat Superior Against Gurstel
and ABC
Ms. Walker contends that Gurstel and ABC are liable under state-law principles of
vicarious liability and respondeat superior for John Doe’s conduct. (Compl. ¶ 45.) She
alleges that John Doe was acting as an agent for ABC, which in turn was acting under a
contract with Gurstel. (Id. ¶ 44.)
“[V]icarious liability is the ‘imposition of liability on one person for the actionable
conduct of another, based solely on a relationship between the two persons.’” Sutherland
v. Barton, 570 N.W.2d 1, 5 (Minn. 1997) (quoting Black’s Law Dictionary). Under the
doctrine of respondeat superior, “a duty of care arises not from the formation of a traditional
employee/employer relationship, but from the common-law standard that ‘[a] person
conducting an activity through servants or other agents is subject to liability for harm
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resulting from his conduct if he is negligent or reckless.’” Howe v. Kaal, No. 25-1946
(JRT/ECW), 2026 WL 674051, at *12 (D. Minn. Mar. 10, 2026) (citing Restatement
(Second) Agency § 213 (1958)).
Gurstel and ABC do not argue that principles of vicarious liability and respondeat
superior do not apply here. Their only arguments are that Count Six did not allege any
actionable conduct and that none of the other counts state a plausible claim for relief.
(Defs.’ Mem. Supp. Mot. J. Pleadings at 22–23.) It is true that Count Six itself does not
detail any additional conduct by John Doe, but it does allege that Gurstel and ABC are
liable for John Doe’s unlawful conduct under the FDCPA and Minnesota law. This is
sufficient to connect the vicarious liability/respondeat superior claim to John Doe’s
conduct alleged elsewhere in the Complaint. As far as the argument that none of the other
counts state a plausible claim for relief, the Court has concluded that Ms. Walker has stated
a plausible claim for intrusion upon seclusion against ABC.
Moreover, Gurstel and ABC filed their motion only on their behalf, and it would
not be proper to dismiss any claims against John Doe based on that motion. See Ballinger
v. Cedar Cnty., 810 F.3d 557, 559 n.1 (8th Cir. 2016) (where a motion to dismiss did not
include the John Doe defendants and those defendants had not been served, reversing the
district court’s decision to include the defendants in the order dismissing the plaintiff’s
claims). John Doe’s conduct founds the basis for the vicarious liability claim, and no claims
against him have been dismissed. Particularly in light of the Court’s discussion of the
intrusion upon seclusion claim in Part III.B, it is possible that Ms. Walker has stated a
plausible claim for intrusion upon seclusion against John Doe. In any event, Gurstel and
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ABC have not shown otherwise. Accordingly, the claim for vicarious liability against
Gurstel and ABC should not be dismissed.
G. 	Defendant John Doe
This action was filed more than six months ago, and Ms. Walker has not served
Defendant John Doe with the summons and complaint. Ms. Walker has known John Doe’s
name since at least September 2, 2025, when she identified him as “Kpakpo Moevi” in her
original Complaint. (See Dkt. No. 1-1.) By separate Order, the Court has set a deadline of
April 30, 2026, for Ms. Walker to file proof of service of process on John Doe/Kpakpo
Moevi and warned her that failure to do so, without good cause, will result in a
recommendation of dismissal under Federal Rule of Civil Procedure 4(m). (Order at 3, Dkt.
No. 80.)
IT IS HEREBY RECOMMENDED that Gurstel and ABC’s Motion for Judgment
on the Pleadings (Dkt. No. 49) be GRANTED in part and DENIED in part, as follows.
1. 	Plaintiff’s claim for false, deceptive, and misleading representations (Count One)
against Gurstel and ABC be DISMISSED WITH PREJUDICE;
2. 	Plaintiff’s claim for intrusion upon seclusion/invasion of privacy (Count Two)
against Gurstel be DISMISSED WITH PREJUDICE;
3. 	Plaintiff’s claim for intrusion upon seclusion/invasion of privacy (Count Two)
against ABC not be dismissed;
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4. 	Plaintiff’s claim for failure to provide required documents and unlawful collection
practices 	(Count 	Three) 	against 	Gurstel 	and 	ABC 	be 	DISMISSED 	WITH
PREJUDICE;
5. 	Plaintiff’s claim for fraudulent misrepresentation against federal agency (Count
Four) against Gurstel be DISMISSED WITH PREJUDICE;
6. 	Plaintiff’s claim for abuse of process/simulated legal process (Count Five) against
Gurstel and ABC be DISMISSED WITH PREJUDICE; and
7. 	Plaintiff’s claim for vicarious liability/respondeat superior (Count Six) against
Gurstel and ABC not be dismissed.
IT 	IS 	FURTHER 	ORDERED 	that 	Plaintiff’s 	Motion 	for 	Leave 	to 	File
Supplemental Complaint (Dkt. No. 63) is DENIED.
Date: April 15, 2026
NOTICE
Filing Objections: A report and recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under LR 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. D. Minn. LR
72.2(b)(2). All objections and responses must comply with the word or line limits set forth
in LR 72.2(c).
s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
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