Vinson v. Midland Funding, LLC et al
MEMORANDUM OPINION AND ORDER DENYING 8 MOTION to Dismiss Complaint as set out herein. Signed by Judge Virginia Emerson Hopkins on 2/20/2013. (JLC)
2013 Feb-20 PM 01:10
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
GLENN VINSON, an individual,
MIDLAND FUNDING, LLC,;
) Case No.: No. 2:12-CV-04187-VEH
MEMORANDUM OPINION AND ORDER
Plaintiff initiated this consumer debt litigation against Defendants (Doc. 8) on
December 26, 2012. (Doc. 1). Pending before the court is Defendants’ Motion To
Dismiss (Doc. 8) (the “Motion”) filed on January 21, 2013. The Motion seeks an
order dismissing Plaintiff’s entire case pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. (Id. at 1).
Defendants filed a brief (Doc. 9) in support of their Motion on January 21,
2013. On February 1, 2013, Plaintiff opposed the Motion. (Doc. 12). Defendants
followed with their reply (Doc. 13) on February 8, 2013.
Finally, on February 11, 2013, Plaintiff filed a notice of supplemental case
authority. (Doc. 14). Accordingly, the Motion is now under submission, and for the
reasons stated below is DENIED.
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal, 129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
Defendants premise their Motion upon Plaintiff’s alleged failure to adhere to
the requirements of Twombly and its progeny when suing Defendants’ over a prior
lawsuit brought by them (i.e., the collection plaintiffs) against Plaintiff (i.e., the
collection defendant) on a consumer debt that he allegedly never owed. (Doc. 1 ¶¶
1-2). In his pleading, Plaintiff maintains that Defendants’ alleged misconduct
violates the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the
“FDCPA”) (Doc. 1 at Count 1) and state law.1
Plaintiff’s FDCPA Count
Notably, neither side has cited to any binding authority that directly addresses
the viability of Plaintiff’s FDCPA count.2 Given the open question status of
Plaintiff’s FDCPA claim within the Eleventh Circuit, the court finds it difficult (and
even arguably premature) to apply Twombly. More specifically, the undersigned is
not persuaded to conclude (as Defendants urge) that Plaintiff has failed to state a
plausible FDCPA claim in the context of suing upon a debt allegedly not owed when
neither the Eleventh Circuit (nor the Supreme Court) has analyzed the actionable
nature vel non of such claim.3
Plaintiff’s state law claims are for invasion of privacy (Doc. 1 at Count II); negligent,
wanton, and/or intentional hiring and supervision of incompetent debt collectors (id. at Count
III); wanton, malicious, and intentional misconduct (id. at Count IV); and malicious prosecution
and abuse of process (id. at Count V).
To be clear, the Eleventh Circuit has addressed some issues under the FDCPA which
are helpful here, but has not yet analyzed the entire scope of the type of claim brought by
Plaintiff. See, e.g., LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1195 (11th Cir. 2010)
(“Determining whether Unifund’s letter could reasonably be perceived as a ‘threat to take legal
action’ under the ‘least-sophisticated consumer’ standard in the circumstances of this case is best
left to jury decision.”); see also id. at 1193 n.15 (“[T]he Supreme Court has held that initiation of
legal proceedings by a creditor can constitute a debt collection activity.” (citing Heintz v. Jenkins,
514 U.S. 291, 293-96, 115 S. Ct. 1489, 131 L. Ed.2d 395 (1995))).
The court acknowledges that Defendants argue in their reply (Doc. 13) that, at a
minimum, Plaintiff’s FDCPA claim premised upon an implied misrepresentation is due to be
dismissed because Plaintiff “cannot cite any decision holding that an implied misrepresentation
that the collection plaintiff intended to prove the case at trial is a viable theory under the
FDCPA.” (Id. at 1). However, at the same time, Defendants, as the movants, have not cited to
any controlling precedent which validates their position on either a Rule 12(b)(6) or alternatively
Additionally, the court is persuaded by and adopts in full Judge William H.
Steele’s opinion in Samuels v. Midland Funding, LLC, No. 12-0490-WS-C entered
on February 7, 2013, in which he rejected the defendant’s4 similar efforts to obtain
a judgment on the pleadings (as analyzed under a Rule 12(b)(6) standard (see Doc.
14 at Ex. A at 7)) with respect to the plaintiff’s comparably asserted FDCPA claim.
(Id. at 7-21 (analyzing and upholding viability of plaintiff’s FDCPA claim challenged
under Rule 12)). Therefore, the FDCPA portion of the Motion is DENIED.
Plaintiff’s State Law Claims
Judge Steele’s recent opinion in Samuels also eloquently explains why the
plaintiff’s state law claims premised upon a defendant’s bringing a prior action on a
consumer debt allegedly not owed survive a Rule 12(b)(6) challenge. (Doc. 14 at Ex.
A at 21-30 (analyzing and upholding viability of plaintiff’s state law claims of
negligence/wantonness/intentional conduct; and negligent/wanton/intentional
hiring/supervision)). This court, once again, is persuaded by and adopts in full Judge
even a Rule 56 record. Regardless, absent from Plaintiff’s FDCPA count is any distinction
drawn between Defendants’ express misrepresentations versus their implicit ones (Doc. 1 at
Count I), and, even if the court were persuaded to dismiss all of Plaintiff’s allegations that might
show an implicit misrepresentation under the FDCPA, the result would be a Pyrrhic victory for
Defendants as the FDCPA count would still remain in the case.
Midland Funding, LLC is also a named defendant in this action.
Steele’s reasoning in Samuels as it pertains to the state law claims asserted by
Plaintiff in this lawsuit. Therefore, the state law section of the Motion is also
Accordingly, the Motion is DENIED.
DONE and ORDERED this 20th day of February, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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