McFerrin v. Capital One Bank (USA) NA

Filing 27

MEMORANDUM OPINION, as set out, re defendant's Motion to Dismiss Amended Complaint. (Doc. 12). Signed by Judge Sharon Lovelace Blackburn on 3/27/15. (CTS, )

FILED
2015 Mar-27 AM 11:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
NATHAN D. McFERRIN,
Plaintiff,
vs.
CAPITAL ONE BANK (U.S.A.), N.A.,
Defendant.

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CASE NO. 7:14-CV-1247-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendant’s Motion to Dismiss
Amended Complaint. (Doc. 12.)1 Plaintiff Nathan D. McFerrin has sued defendant Capital
One Bank alleging claims based in the Fair Debt Collection Practices Act and state-law
claims of fraud, unjust enrichment, and intentional infliction of emotional distress. Upon
consideration of the record, the submissions of the parties, and the relevant law, the court is
of the opinion that defendant’s Motion to Dismiss Amended Complaint, (doc. 12), is due to
be granted.
I. MOTION TO DISMISS STANDARD
Defendant has moved to dismiss plaintiff’s Amended Complaint for failure to state
a claim upon which relief can be granted. (Doc. 9 at 1-2.) The purpose of such a motion,
authorized by Rule 12(b)(6) of the Federal Rules of Civil Procedure, is to test the facial
sufficiency of the plaintiff’s statement of a claim for relief. Brooks v. Blue Cross and Blue

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Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

Shield of Florida, Inc., 116 F.3d 1364, 1367 (11th Cir. 1997). Rule 12(b)(6) must be read
together with Rule 8(a)(2) of the Federal Rules of Civil Procedure, which “requires that a
pleading contain 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.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010)
(internal citations and quotation omitted).
When addressing a 12(b)(6) motion to dismiss, the court accepts the allegations in the
Complaint as true and construes those allegations in the light most favorable to plaintiff.
Ironworkers Local Union 68 v. AstraZeneca Pharmaceuticals, LP, 634 F.3d 1352, 1359
(11th Cir. 2011)(quoting Am. Dental Ass’n, 605 F.3d at 1288). To survive a Motion to
Dismiss, “the complaint must contain sufficient factual matter . . . to state a claim to relief
that is plausible on its face.” Id. (quoting Am. Dental Ass’n, 605 F.3d at 1289 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)))(internal quotations omitted). A claim
is “plausible” if the facts are sufficient “to allow[ ] 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). However, “courts are not bound to accept as true a legal conclusion couched as a
factual allegation,” and the court does not assume that plaintiff can prove facts she has not
alleged. Twombly, 550 U.S. at 555, 563 n.8. (internal quotations and citations omitted).
“[W]hile notice pleading may not require that the pleader allege a ‘specific fact’ to cover
every element or allege ‘with precision’ each element of a claim, it is still necessary that a

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complaint ‘contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.’” Roe v. Aware Woman Ctr.
for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)(quoting In re Plywood Antitrust Litig.,
655 F.2d 627, 641 (5th Cir. Unit A Sept. 8, 1981)).
II. STATEMENT OF FACTS
Plaintiff’s Complaint contains the following “Statement of Facts,” which the court
assumes are true for purposes of deciding defendant Motion to Dismiss Amended Complaint:
On December 03, 2008 a civil action, without proof of debt being
[owed] by Plaintiff, was filed against Plaintiff in the District Court of
Tuscaloosa County, Alabama. Plaintiff denied this debt for approximately six
(6) and one half [(1/2)] years before Defendant (Plaintiff at that time) decided
that the filed complaint against current Plaintiff, Nathan D. McFerrin, should
be vacated because of fraud on a third party. Plaintiff was subjected to threats
of incarceration, humiliation, denial of credit opportunities, increased interest
payments for credit received, a complete destruction of the harmony of a
household and destruction of credit, because of Defendant’s [sic] Capital One
Bank’s actions against and toward Plaintiff.
(Doc. 1 at 2.) After defendant filed its first Motion to Dismiss,2 (doc. 6), plaintiff filed an
Amendment to Original Complaint, which contained the following allegations:
2. Defendant, Capital One Bank (USA) N.A., hereinafter, Capital One,
has engaged in only one business practice with the Plaintiff and that is a
relentless pursuit of a phantom debt allegedly owed by the Plaintiff.

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By separate Order, the court has denied as moot defendant’s first Motion to Dismiss.
The Motion to Dismiss the Amended Complaint, (doc. 12), includes all grounds raised in the
first Motion to Dismiss. (Compare doc. 6 with doc. 12.)
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3. Defendant, Capital One, qualifies as a debt collector because it has
used the “instrumentalities of the interstate commerce, through usage of the
phone and the mails in an attempt to collect from the Plaintiff.
4. Defendant, Capital One has engaged in regular telephone calls at
Plaintiff’s residence and workplace alleging that Plaintiff owes a debt and that
they are collecting such a debt.
5. Defendant Capital One has not attempted to set itself apart as
separate entity engaging in such collection practices on behalf of the
Defendant, Capital One.
6. Defendant, Capital One, has attempted to collect on a credit card,
allegedly contracted with and issued to the Plaintiff, in which the Plaintiff
would have used for personal use. . . .
...
8. Plaintiff re-alleges that Defendant, Capital One has engaged in debt
collection practices that were/are intentional and reckless and that Plaintiff has
suffered tremendous emotional distress by being called repeatedly at home and
at work.
9. Plaintiff alleges that for Defendant, Capital One, to knowingly and
intentionally accept a payment for a contract of a credit card, that 1) they
cannot produce and 2) if produced, the Plaintiff would not have signed, is to
be enriched unjustly. Emphasis added.
10. Plaintiff specifically states that Defendant, Capital One, has found
a name and an address, and by method of “default to pay” forces consumers
just like Plaintiff, to become overwhelmed with phone calls and letters and
ultimately give [in] and pay a debt that is not owed. This is a fraudulent
scheme that will not be deterred, even when an innocent consumer states
emphatically that the debt is not owed and demands strict proof thereof.
Plaintiff has become overwhelmed with phone calls and received a small
claims complaint that was later dismissed citing third party fraud. Plaintiff has
been threatened with criminal charges and jail time if he does not pay a debt
that is not his. Plaintiff has repeatedly stated the debt was not his. Plaintiff
engaged in continued dialogue with the Defendant, Capital One, for
considerable time before the debt lawsuit was dismissed.
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(Doc. 11 at 1-2.) In response to plaintiff’s Amendment, defendant filed the instant Motion
to Dismiss Amended Complaint.
III. DISCUSSION
Defendant asks the court to dismiss plaintiff’s claims on the ground that his Complaint
and Amended Complaint fail to state a claim upon which relief can be granted. For the
reasons set forth below, the court agrees.
A. FAIR DEBT COLLECTION PRACTICES
Defendant contends that plaintiff’s claim under the Fair Debt Collection Practices Act
[“FDCPA”] is due to be dismissed because plaintiff has not alleged facts sufficient to show
that defendant is a debt collector as the term is defined by the FDCPA. The FDCPA defines
“debt collector” as –
any person who uses any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the collection of any debts,
or who regularly collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another. . . . [T]he term includes
any creditor who, in the process of collecting his own debts, uses any name
other than his own which would indicate that a third person is collecting or
attempting to collect such debts. . . . The term does not include –
(A) any officer or employee of a creditor while, in the name of the creditor,
collecting debts for such creditor . . . .
15 U.S.C. § 1692a(6)(A). “The term ‘creditor’ means any person who offers or extends
credit creating a debt or to whom a debt is owed, but such term does not include any person
to the extent that he receives an assignment or transfer of a debt in default solely for the
purpose of facilitating collection of such debt for another.” Id. (4).
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Plaintiff has not specified the FDCPA provision he contends defendant violated.
Nevertheless, viewing the allegations of his Complaint and Amended Complaint, the court
finds that he is alleging violations of 15 U.S.C. § 1692e, which states in pertinent part:
A debt collector may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt. Without limiting the
general application of the foregoing, the following conduct is a violation of
this section:
...
(2) The false representation of –
(A) the character, amount, or legal status of any debt;3 . . .
...
(4) The representation or implication that nonpayment of any debt will result
in the arrest or imprisonment of any person or the seizure, garnishment,
attachment, or sale of any property or wages of any person unless such action
is lawful and the debt collector or creditor intends to take such action.4
...
15 U.S.C.A. § 1692e. As set forth above, “debt collector” does not include a creditor trying
to collect its own debt.
Plaintiff’s Complaint and Amended Complaint allege that defendant’s collection
actions were taken with the purpose of collecting a credit card debt owed to Capital One.
This factual assertion, that defendant was a creditor, bars plaintiff’s claim for relief under the
FDCPA.
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(See doc. 1 at 1-2; doc. 11 ¶¶ 2, 10.)

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(See doc. 1 at 2; doc. 11 ¶ 10.)
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Defendant’s Motion to Dismiss Amended Complaint will be granted and plaintiff’s
FDCPA will be dismissed with prejudice without leave to amend.5
B. FRAUD
Count Two of plaintiff’s Complaint alleges, “Defendant pursued the collection of the
debt allegedly owed by Plaintiff, continuously for approximate [6½] years, without complete
validation of such debt . . . .” (Doc. 1 at 3.) In his Amendment to Original Complaint,
plaintiff alleges that defendant has a “fraudulent scheme” to force an “innocent consumer”
to “pay a debt that is not owed.” (Doc. 11 ¶ 10.) Defendant has moved to dismiss plaintiff’s
fraud claim based on plaintiff’s failure to plead the claim with specificity. (See doc. 12 at
12-15.) In response to defendant’s Motion,6 plaintiff argues that he “has gone to great
lengths to notify [defendant] that it had ‘the wrong guy’ and this was ignored repeatedly.”
(Doc. 17 at 2.)

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“The Supreme Court has noted that under Federal Rule of Civil Procedure 15, leave
should be freely given ‘[i]f the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief.’ Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L.
Ed. 2d 222 (1962). Pursuant to Foman, a district court may deny leave to amend a complaint
under Rule 15(a) if that amendment would be futile. 371 U.S. at 182; see also Burger King
Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999)(holding that ‘denial of leave to
amend is justified by futility when the complaint as amended is still subject to dismissal’).”
McKinley v. Petsmart, Inc., No. 2:05-CV562F(WO), 2005 WL 2108107, *3 n.4 (M.D. Ala.
Aug. 24, 2005). Because defendant is a creditor and not a debt collector, any leave to amend
would be futile.
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Plaintiff’s Response states, “Plaintiff’s Claim for Fraud is Sufficient Under the
FDCPA,” and he cites the court to case law regarding criminal mail fraud. (Doc. 17 at 1-2.)
However, plaintiff’s Complaint alleges a state-law fraud claim. (Doc. 1 at 3.)
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In Alabama, “To establish the elements of fraudulent misrepresentation [plaintiff] has
to show: (1) that the [defendant’s] representation was false, (2) that it concerned a material
fact, (3) that [plaintiff] relied on the false representation, and (4) that actual injury resulted
from that reliance.” Ex parte Novartis Pharmaceuticals Corp., 991 So. 2d 1263, 1275 (Ala.
2008)(internal quotations and alterations omitted; citation omitted). With regard to reliance
necessary to support a cause of action for fraud, the Alabama Supreme Court has held:
[A] party cannot claim that [he] was deceived by a representation if [he] was
sufficiently skeptical of it or knew the representation to be false.
To claim reliance upon a misrepresentation, the allegedly deceived
party must have believed it to be true. If it appears that he was in fact
so skeptical as to its truth that he placed no confidence in it, it cannot
be viewed as a substantial cause of his conduct. If the plaintiff knew
that the representations were false, he can not [sic] complain that he has
been misled to his damage by the defendant’s attempted deception. The
idea of a person knowing a representation to be false and at the same
time relying thereon is a contradiction in terms.
Sandoz, Inc. v. State, 100 So. 3d 514, 527 (Ala. 2012)(quoting AstraZeneca, 41 So. 3d at
28)(internal quotations and citations omitted).
In his Complaint and Amendment to Original Complaint, plaintiff alleges that
defendant repeatedly tried to collect a debt that plaintiff steadfastly insisted he did not owe.
Plaintiff, however, makes no allegation, nor could he given his conviction that he did not owe
the amount claimed, that he relied on defendant’s false representation to his detriment. He
has alleged no facts that would support a claim that he was ever deceived by defendant’s

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statements that plaintiff owed it money. Therefore, the court finds that plaintiff has not, and
cannot, state a claim for fraud based on defendant’s assertion that plaintiff owed it a debt.
Defendant’s Motion to Dismiss Amended Complaint will be granted and plaintiff’s
fraud claim will be dismissed with prejudice. Any leave to amend would be futile in light
of plaintiff’s admission that he was never deceived by defendant’s assertion.
C. UNJUST ENRICHMENT
Plaintiff does not oppose defendant’s Motion to Dismiss this count. Therefore,
defendant’s Motion to Dismiss Amended Complaint will be granted and plaintiff’s unjust
enrichment claim will be dismissed.7
D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Alabama recognizes a tort claim for the intentional infliction of emotional distress:
[The Alabama Supreme] Court first recognized the tort of outrage [or
intentional infliction of emotional distress] in 1980, in American Road Service

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Even if plaintiff had not abandoned this claim, the court would dismiss plainitff’s
unjust enrichment claim. In his Amendment, plaintiff “alleges that for Defendant, Capital
One, to knowingly and intentionally accept a payment for a contract of a credit card, that 1)
they cannot produce and 2) if produced, the Plaintiff would not have signed, is to be enriched
unjustly.” (Doc. 11 ¶ 9.) However, plaintiff never alleged that he made any payment to
defendant. Therefore, he has failed to allege a claim for unjust enrichment for which relief
may be granted. See Scrushy v. Tucker, 955 So. 2d 988, 1011-12 (Ala. 2006)(holding that
for a plaintiff to recover on a claim for unjust enrichment he must show either “that the
defendant holds money which, in equity and good conscience, belongs to the plaintiff” or that
defendant “holds money which [plaintiff] improperly paid to defendant because of mistake
or fraud”). Nothing in the Complaint, Amendment to Original Complaint, or Response
supports a plausible claim that defendant holds money that belongs to plaintiff or that
plaintiff ever paid defendant any money because of mistake or fraud.
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Co. v. Inmon, 394 So. 2d 361 (Ala. 1980). In Inmon this Court recognized the
tort proposed by the Restatement (Second) of Torts § 46 (1948), holding:
‘‘[O]ne who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to
liability for such emotional distress and for bodily harm resulting from
the distress. The emotional distress thereunder must be so severe that
no reasonable person could be expected to endure it. Any recovery
must be reasonable and justified under the circumstances, liability
ensuing only when the conduct is extreme. Comment, Restatement
[(Second) of Torts § 46], at 78 [ (1948) ]. By extreme we refer to
conduct so outrageous in character and so extreme in degree as to go
beyond all possible bounds of decency, and to be regarded as atrocious
and utterly intolerable in a civilized society. Comment (d),
Restatement, supra at 72.’’
394 So. 2d at 365. The Court noted in Inmon that the tort of outrage
‘‘does not recognize recovery for ‘mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.’ Comment,
Restatement, supra, at 73. The principle applies only to unprivileged,
intentional or reckless conduct of an extreme and outrageous nature,
and only that which causes severe emotional distress.’’
394 So. 2d at 364-65. As this Court has since held:
‘‘The tort of outrage is an extremely limited cause of action. It is so
limited that this Court has recognized it in regard to only three kinds of
conduct: (1) wrongful conduct in the family-burial context, Whitt v.
Hulsey, 519 So. 2d 901 (Ala.1987); (2) barbaric methods employed to
coerce an insurance settlement, National Sec. Fire & Cas. Co. v.
Bowen, 447 So. 2d 133 (Ala.1983); and (3) egregious sexual
harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989).
See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort
Law, § 23.0 (2d ed.1996). In order to recover, a plaintiff must
demonstrate that the defendant’s conduct ‘(1) was intentional or
reckless; (2) was extreme and outrageous; and (3) caused emotional
distress so severe that no reasonable person could be expected to endure
it.’ Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala.

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1990)(citing American Road Service Co. v. Inmon[, 394 So. 2d 361
(Ala. 1980)]).’’
Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000). That is not to say, however,
that the tort of outrage is viable in only the three circumstances noted in Potts.
Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted
against a family physician who, when asked by a teenage boy’s mother to
counsel the boy concerning his stress over his parents’ divorce, instead began
exchanging addictive prescription drugs for homosexual sex for a number of
years, resulting in the boy’s drug addiction. See O’Rear v. B.H., 69 So. 3d 106
(Ala. 2011). It is clear, however, that the tort of outrage is viable only when
the conduct is ‘‘‘so outrageous in character and so extreme in degree as to go
beyond all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized society.’’’ Horne v. TGM Assocs., L.P., 56 So.
3d 615, 631 (Ala. 2010)(quoting Inmon, 394 So. 2d at 365).
Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011). This court has no “commission to
redefine the present boundaries of state law claims.” Jackson v. Countrywide Home Loans,
No. 2:11-cv-327-MEF, 2012 WL 777180, at *8 (M.D. Ala. Mar. 7, 2012). With these
standards in mind, the court finds that plaintiff has not stated an intentional-infliction-ofemotional-distress claim upon which relief may be granted.
In his Complaint, plaintiff alleges that defendant filed suit against him to collect a debt
he did not owe. (Doc. 1 at 2.) He alleges that he “has suffered tremendous emotional
distress by being called repeatedly at home and at work,” (doc. 11 ¶ 8), including “threats of
incarceration, humiliation, denial of credit opportunities, increased interest payments for
credit received, a complete destruction of the harmony of a household, and destruction of
credit,” (doc. 1 at 2). He argues that defendant’s conduct was outrageous based on “repeated
harassment through the phone system and mails . . . for a debt not owed.” (Doc. 17 at 2.)

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However, beyond these conclusory statement, plaintiff has not described defendant’s conduct
or otherwise alleged any facts to support his claim that defendant’s calls and letters were “so
outrageous in character and so extreme in degree as to go beyond all possible bounds of
decency and to be regarded as atrocious and utterly intolerable in a civilized society.” See
Little, 72 So. 3d at 1173 (internal citations omitted). Indeed, the Alabama Supreme court has
held that “oppressive collection practices” – including “threatening, abusive, and insulting
language,” a “wrongful threat of repossession,” and the “filing of an adverse report with a
credit bureau” – are not so extreme as to support an outrage claim. See Standridge, 565 So.
2d at 45.
The court finds that plaintiff has not alleged a claim for intentional infliction of
emotional distress and, therefore, defendant’s Motion to Dismiss this claim will be granted.
Plaintiff’s claim of intentional infliction of emotional distress will be dismissed with
prejudice without leave to amend because such amendment would be futile.
CONCLUSION
For the foregoing reasons, the court is of the opinion that plaintiff has failed to state
any claim for which relief can be granted. An Order granting defendant’s Motion to Dismiss
Amended Complaint, (doc. 12), will be entered contemporaneously with this Memorandum
Opinion.

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DONE this 27th day of March, 2015.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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