Glenn v. Checksmart Financial Co. et al

Filing 21

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 1/7/2014. (KAM, )

FILED
2014 Jan-07 PM 03:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT COURT
SOUTHERN DIVISION
ALFREDIA GLENN,
Plaintiff,
v.
CHECKSMART FINANCIAL
COMPANY, INC., ET AL.,
Defendants.

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CIVIL ACTION NO.
2:13-CV-1715-KOB

MEMORANDUM OPINION
This matter comes before the court on “Defendant CheckSmart Financial Company’s
Motion to Dismiss.” (Doc. 9). Plaintiff Alfredia Glenn brings this claim under the Fair Debt
Collection Practices Act (“FDCPA”), the Telephone Consumer Protection Act (“TCPA”), and
Alabama law on invasion of privacy, against Defendant Checksmart Financial Co. and other
defendants who have either not appeared or have not been served. Defendant CheckSmart brings
its motion to dismiss under Rule 12(b)(6), arguing that Plaintiff fails to state a claim upon which
relief can be granted. For the following reasons, Defendant CheckSmart’s motion to dismiss will
be GRANTED IN PART and DENIED IN PART.
Standard of Review
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint.
Generally, 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)

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(quoting Fed. R. Civ. P. 8(a)). Pleadings that contain nothing more than “a formulaic recitation
of the elements of a cause of action” do not meet Rule 8 standards nor do pleadings suffice that
are based merely upon “labels or conclusions” or “naked assertions” without supporting factual
allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007).
The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal 556 U.S. 662, 678 (2009) (quoting and explaining its decision in
Twombly, 550 U.S. at 570). The Supreme Court has identified “two working principles” for the
district court to use in applying the facial plausibility standard. The first principle is that, in
evaluating motions to dismiss, the court must assume the veracity of well-pleaded factual
allegations; however, the court does not have to accept as true legal conclusions even when
“couched as [] factual allegation[s]” or “threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. The second principle is that
“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
Thus, under prong one, the court determines the factual allegations that are well-pleaded and
assumes their veracity, and then proceeds, under prong two, to determine the claim’s plausibility
given the well-pleaded facts.
FDCPA Claim
Defendant CheckSmart argues that Plaintiff’s FDCPA claim should be dismissed because
CheckSmart was Plaintiff’s creditor, not a debt collector under the FDCPA. (Doc. 10, at 4-5).
Plaintiff, in response, concedes that “the FDCPA generally does not apply to creditors,” but
argues that the FDCPA does include “any creditor who in the process of collecting his own debts,
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uses any name other than his own which would indicate that a third person is collecting or
attempting to collect such debts.” (Doc. 15, at 3) (citing 15 U.S.C. § 1692(a)(6)).
The statute from which Plaintiff quotes is in fact 15 U.S.C. § 1692a(6), which defines the
term “debt collector” under the FDCPA.1 Under the statutory definition, a debt collector does not
include “any person collecting or attempting to collect any debt owed or due or asserted to be
owed or due another to the extent such activity . . . concerns a debt which was originated by such
person.” 15 U.S.C. § 1692a(6)(F). As quoted by the Plaintiff, a limited exception applies. The
term “debt collector” includes “any creditor who, in the process of collecting his own debts, uses
any name other than his own which would indicated that a third person is collecting or
attempting to collect such debts.” 15 U.S.C. § 1692a(6).
The factual allegations of the complaint claim that CheckSmart (called “Easy Money” in
the complaint), originated the loan. (Doc. 1, ¶ 9). Therefore, under § 1692a(6)(F), CheckSmart is
not a debt collector unless the alleged facts support the application of the limited exception. The
complaint does not allege that CheckSmart itself attempted to collect the debt, but that “Easy
Money . . . is liable for these calls under the FDCPA/TCPA as they were made by its debt
collector, Segal Bennett and Associates . . . .” (Doc. 1, ¶ 17). The complaint also alleges that “the
debt with Easy Money was consigned, placed or otherwise transferred to the other named
Defendants for collection from Plaintiff.” (Doc. 1, ¶ 11). These facts do not support an argument
under the FDCPA that CheckSmart itself was collecting its debts under a false name. Therefore,
the FDCPA is not applicable to CheckSmart in this circumstance and Defendant CheckSmart’s

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15 U.S.C. § 1692(a)(6), the citation used by Plaintiff, references the “Congressional
findings and declaration of purpose” portion of the FDCPA.
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motion is due to be GRANTED as to the FDCPA element of Count I.
TCPA Claim
Defendant CheckSmart argues that Plaintiff’s claims under the TCPA fail as a matter of
law because she provided her contact information to CheckSmart as part of her loan transaction.
(Doc. 10, at 7). Regardless of the law on this matter, Defendant’s argument fails because the facts
before the court do not show that Plaintiff provided her contact information to CheckSmart. The
complaint specifically alleges that “Plaintiff never gave Defendant permission to call Plaintiff’s
cell phone . . ., family members, and/or work place . . .” (Doc. 1, ¶ 16). Were Defendant
CheckSmart able to submit Plaintiff’s actual loan application showing that she provided these
phone numbers, the court would need to evaluate the issue further. Defendant CheckSmart did
not submit Plaintiff’s loan application, however; CheckSmart only submitted an example of the
loan application used at the time. Such evidence is an insufficient basis on which to grant a Rule
12(b)(6) motion to dismiss. Therefore, Defendant CheckSmart’s motion to dismiss will be
DENIED as to the TCPA claim in Count I.
Invasion of Privacy
Defendant CheckSmart argues that the single voicemail alleged by Plaintiff is insufficient
to establish the outrageous conduct necessary for invasion of privacy under Alabama law. (Doc.
10, at 9). Alabama law specifically recognizes intrusion upon seclusion as one of the four
distinct wrongs of the invasion of privacy tort and it is upon this wrong that both parties center
their arguments. See Phillips v. Smalley Maintenance Services, Inc., 435 So. 2d 705, 708 (Ala.
1983). The Supreme Court of Alabama has defined the wrongful intrusion aspect of invasion of
privacy by adopting the definition from the Restatement (Second) of Torts. Id. at 708-09, see also
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Johnson v. Stewart, 854 So. 2d 544, 547-48 (Ala. 2002). It states: “One who intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs
or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would
be highly offensive to a reasonable person.” RESTATEMENT (SECOND) OF TORTS, § 652B (1977).
The facts regarding the invasion of Plaintiff’s privacy, when viewed in the light most
favorable to the Plaintiff, include one voice message stating that a case had been filed against the
Plaintiff in Jefferson County and “numerous other calls placed to [Plaintiff’s] cellular phone,
work place, and her sister’s phone.” (Doc. 1, ¶¶ 13, 15). The complaint does not state the
number, frequency, or content of these calls, or any specific consequences that Plaintiff suffered
as a result of the calls, other than to generally assert that “Plaintiff has suffered actual damages as
a result of these illegal collection communications by these Defendants in the form of anger,
anxiety, emotional distress, fear, frustration, upset, humiliation, embarrassment, amongst other
negative emotions, damage to her credit, as well as suffering from unjustified and abusive
invasions of personal privacy.” (Doc. 1, ¶ 23).
Having reviewed the various examples cited by both parties of circumstances that
constitute an intrusion that would be highly offensive to a reasonable person, the court finds that
these facts do not rise to that level. A single voice message and various nondescript phone calls,
without any additional facts, do not support a claim of a highly offensive intrusion. A court in
this district has even noted that “efforts to collect a debt may be annoying, embarrassing, and
upsetting without rising to the level of an invasion.” Leahey v. Franklin Collection Services, Inc.,
756 F. Supp. 2d 1322, 1327-28 (N.D. Ala. 2010) (granting defendant’s motion to dismiss based
on a finding that the debt collector’s actions did not rise to the level of invasion of privacy under
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Alabama law). As such, this court will GRANT Defendant CheckSmart’s motion as to Count II.
Conclusion
For the reasons discussed above, the court finds that Defendant CheckSmart’s motion to
dismiss is due to be GRANTED IN PART and DENIED IN PART. The court will GRANT the
motion as to the FDCPA claim in Count I and all of Count II and will DISMISS these claims
WITHOUT PREJUDICE. The court will DENY the motion as to the TCPA claim in COUNT I.
The court will also DISMISS WITH PREJUDICE all claims against Defendant Northern
Resolution Group.
DONE and ORDERED this 7th day of January, 2014.

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KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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