Smith v. Allied Interstate, Inc. et al

Filing 16

MEMORANDUM OPINION AND ORDER that 7 Motion to Dismiss is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 12/23/2009. (cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION B R E N D A KAY SMITH, on behalf of herself ) a n d all others similarly situated, ) ) P L A IN T IF F , ) ) v. ) C A S E NO. 1:09-cv-1007-MEF ) A L L IE D INTERSTATE, INC. and ) L V N V FUNDING, LLC., ) (W O ) ) D EFEN D A N TS. ) M E M O R A N D U M OPINION AND ORDER T h is case alleges violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1 6 9 2 et seq. ("FCDPA"). The matter is presently before the Court on the Motion to Dismiss (D o c . # 7) filed on November 30, 2009. By this motion brought pursuant to Federal Rule of C iv il Procedure 12(b)(6), Defendants Allied Interstate, Inc. and LVNV Funding, LLC. c o n te n d that this case should be dismissed in its entirety because the Complaint fails to state a claim upon which relief can be granted. Plaintiff opposes this motion. The Court has c a re f u lly considered the arguments advanced in support of and in opposition to the motion a n d finds that the motion is due to be DENIED. " T o survive a motion to dismiss, a complaint must contain sufficient factual matter, a c c e p te d as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --U .S . ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 5 4 4 , 570 (2007)); Sinatrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009). A

complaint states a facially plausible claim for relief "when the plaintiff pleads factual content th a t allows the court to draw a reasonable inference that the defendant is liable for the m isc o n d u c t alleged." Iqbal, --- U.S. ----, 129 S. Ct. at 1949. A complaint does not state a f a c ia lly plausible claim for relief if it shows only "a sheer possibility that the defendant acted u n la w f u lly." Id. While a complaint need not contain detailed factual allegations to survive a motion pursuant to Federal Rule of Civil Procedure 12(b)(6), "[a] pleading that offers la b e ls and conclusions or a formulaic recitation of the elements of a cause of action will not d o ." Id. (quotation marks and citations omitted). P la in tif f alleges that Defendants' routine practice of sending letters like the one sent to Plaintiff, a copy of which is attached to the Complaint as an exhibit, violated the FDCPA in that it threatens to disclose private information to affiliated and non-affiliated parties as w e ll as other third parties. In this Court's view, the Plaintiff has alleged factual content from w h ic h a reasonable inference of Defendants' liability for the alleged misconduct and s ta tu to ry violations could be drawn. For this reason, it is hereby ORDERED that the Motion to Dismiss (Doc # 7) is DENIED. DONE this the 23rd day of December, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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