Patterson v. AD Astra Recovery Service et al
Filing
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 5 MOTION to Dismiss. With regard to Plaintiff's claims under the FCRA and RESPA, the motion is GRANTED, and Plaintiff's claims under the FCRA and RESPA are DISMISSED WITH PREJUDICE. With regard to her FDCPA and negligence claims, Plaintiff SHALL amend her complaint by June 21, 2018, keeping in mind the pleading standard required by the Federal Rules of Civil Procedure. Defendants' Motion to Dismiss with regard to these claims is DENIED WITHOUT PREJUDICE. Signed by Magistrate Judge Staci G Cornelius on 6/4/2018. (JLC)
FILED
2018 Jun-04 AM 11:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MISTI PATTERSON,
)
)
Plaintiff,
)
)
v.
)
)
AD ASTRA RECORVERY SERVICE, )
et al.,
)
)
Defendants.
)
Case No.: 2:17-cv-01569-SGC
MEMORANDUM OPINION AND ORDER1
Plaintiff Misti Patterson originally filed this action in the Bessemer Division
of the Circuit Court of Jefferson County, Alabama, against Defendants Ad Astra
Recovery Services, Inc. (“Ad Astra”), and Speedy Cash, along with several
unnamed defendants, alleging claims under the Fair Debt Collection Practices Act
(“FDCPA”), the Fair Credit Reporting Act (“FCRA”), the Real Estate Settlement
Procedures Act (“RESPA”), and state common law. (Doc. 1-1). Defendants
removed the case to federal court asserting federal question jurisdiction. (Doc. 1).
Defendants then filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 5). The motion has been fully briefed and is now under
submission. (Docs. 5-1, 8, 14). For the following reasons, the motion is due to be
granted in part and denied in part.
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The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 10).
I. FACTUAL ALLEGATIONS
Patterson alleges “[o]n dates prior hereto,” Defendant Speedy Cash sent her
a letter demanding she make payments on a loan. (Doc. 1-1 at 4). Patterson
contends she did not take out a loan with Speedy Cash and communicated this fact
to Speedy Cash on numerous occasions. (Id. at 4-5). She states “additional letters
were written trying to resolve this issue and upon reviewing documentation
presented,” Patterson concluded the loan was a result of identity theft occurring in
the State of California. (Id. at 5).
Although Patterson notified Speedy Cash about the identity theft, “Speedy
Cash continued their activities of trying to force the Plaintiff to make payments on
a debt she did not incur.” (Id.). Speedy Cash then hired Ad Astra to attempt to
collect the debt. (Id.). Further, despite knowing the debt was disputed and “having
information before it that should have told a reasonable person that this particular
Plaintiff was not the person who made this debt to Speedy Cash,” Defendants
reported the debt to credit agencies, including TransUnion and Equifax. (Id.).
Plaintiff alleges the actions of Defendants substantially impaired her ability
to borrow funds and caused her to pay higher interest rates when she did borrow
money. (Id.).
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II. STANDARD OF REVIEW
Defendants move for dismissal pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, which authorizes the dismissal of all or some of the
claims in a complaint if the allegations fail to state a claim upon which relief can
be granted. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief,” in order
to “give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court assumes the
factual allegations in the complaint are true and gives the plaintiff the benefit of all
reasonable factual inferences. Hazewood v. Foundation Financial Group, LLC,
551 F.3d 1223, 1224 (11th Cir. 2008) (per curiam). However, “courts ‘are not
bound to accept as true a legal conclusion couched as a factual allegation.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)
(“Rule 8 marks a notable and generous departure from the hyper-technical, codepleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”). Nor is it proper to assume
the plaintiff can prove facts he has not alleged or that the defendants have violated
the law in ways that have not been alleged. Twombly, 550 U.S. at 563 n.8 (citing
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Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526
(1983)).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id., 550 U.S. at 555
(citations, brackets, and internal quotation marks omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level . . . .” Id.
Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citations
omitted).
In other words, its “factual content . . . allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
III. DISCUSSION
In her opposition brief, Plaintiff concedes her claims under the FCRA and
RESPA are due to be dismissed. (Doc. 8 at 3-4). The only remaining claims are
those under the FDCPA and Plaintiff’s negligence claim. The court discusses each
claim separately.
1. FDCPA
Defendants argue Plaintiff’s claim under the FDCPA is due to be dismissed
for two reasons. First, Defendants contend the complaint does not specify which
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provisions of the FDCPA form the basis for her allegations, thus warranting
dismissal. (Doc. 5-1 at 4). Second, Defendants assert Plaintiff does not allege
either Defendant is a “debt collector,” Plaintiff is a “consumer,” or the obligation
to Speedy Cash is a “debt” as those terms are defined by the FDCPA. (Id. at 5).
Although the court agrees with Defendants that Plaintiff’s complaint does
not name the specific provisions of the FDCPA forming the basis of her claim, in
her opposition brief, Plaintiff asserts her complaint “states [a] valid violation of §
1692g and § 1692e” of the FDCPA. (Doc. 8 at 2).
Additionally, although
Plaintiff essentially concedes the other deficiencies in her complaint with regard to
her FDCPA claim, the court is mindful the complaint was originally filed in the
Circuit Court of Jefferson County under the pleading standard applicable in
Alabama state court.
As such, the court will allow Plaintiff to amend her
complaint with regard to her FDCPA claim.
2. Negligence
Defendants make two arguments for dismissal with regard to Plaintiff’s
negligence claim. First, Defendants argue the requisite elements of a negligence
claim are not alleged. (Doc. 5-1 at 7-8; Doc. 14 at 5-6). Second, Defendants argue
that Patterson’s negligence claim, to the extent it is based on alleged inaccurate
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reporting to credit agencies, is preempted by the FCRA.2 (Doc 5-1 at 8-9; Doc. 14
at 6-7).
In Alabama, “[t]he elements of a negligence claim are a duty, a breach of
that duty, causation, and damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank,
817 So. 2d 665, 679 (Ala. 2001). “It is settled that for one to maintain a negligence
action the defendant must have been subject to a legal duty.” Morton v. Prescott,
564 So. 2d 913, 915 (Ala. 1990). “Whether a legal duty exists is a question of
law.” Rose v. Miller & Co., 432 So. 2d 1237, 1238 (Ala. 1983).
Defendants contend the complaint fails to allege Defendants owed a duty to
Plaintiff, how any duty was breached, or how the alleged acts and omissions were
the proximate cause of Plaintiff’s injury. (Doc. 5-1 at 7-8). While the court
generally agrees with Defendants’ argument regarding the complaint’s failure to
plead the essential elements of a negligence claim, the court will allow Plaintiff to
amend to articulate a claim under the Federal Rules of Civil Procedure.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN
PART AND DENIED IN PART. (Doc. 5). With regard to Plaintiff’s claims
under the FCRA and RESPA, the motion is GRANTED, and Plaintiff’s claims
under the FCRA and RESPA are DISMISSED WITH PREJUDICE.
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With
Because Plaintiff concedes her FCRA claim is not viable, this argument is now inapposite.
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regard to her FDCPA and negligence claims, Plaintiff SHALL amend her
complaint by June 21, 2018, keeping in mind the pleading standard required by the
Federal Rules of Civil Procedure. The amended complaint must include all of
Plaintiff’s claims and must not refer back to the original complaint. Defendants’
motion to dismiss with regard to these claims is DENIED WITHOUT
PREJUDICE.
DONE and ORDERED this 4th day of June, 2018.
______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
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