Eslava v. AllianceOne Receivables Management, Inc.
Filing
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Order granting 4 MOTION to Dismiss filed by AllianceOne Receivables Management, Inc. Plaintiff will be permitted to amend her Complaint as set out by 10/5/2012. Signed by Chief Judge William H. Steele on 9/20/2012. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLOTTE STOKES ESLAVA,
Plaintiff,
v.
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,
Defendant.
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CIVIL ACTION 12-0425-WS-N
ORDER
This matter comes before the Court on defendant’s Motion to Dismiss Complaint (doc.
4). The Motion has been briefed and is now ripe for disposition.
I.
Background.
Plaintiff, Charlotte Stokes Eslava, brought this action against defendant, AllianceOne
Receivables Management, Inc., claiming violations of the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692 et seq. (“FDCPA”). The short, 3-page Complaint (doc. 1) alleges that
AllianceOne mailed a dunning letter directly to Eslava on June 18, 2012, demanding payment of
an alleged debt in the amount of $1,630.30. According to the well-pleaded allegations of the
Complaint, “[s]aid letter was sent by Defendant to Plaintiff while Plaintiff was represented by
counsel with regard to Bankruptcy Proceeding No. 06-11067 which had been filed on June 8,
2006, but which was temporarily dismissed on February 1, 2012.” (Doc. 1, ¶ 11.) The
Complaint alleges that AllianceOne’s act of mailing such a letter directly to Eslava, rather than to
her attorney, violates sections 1692c (which prohibits a debt collector from communicating with
a consumer concerning a debt if the debt collector knows the consumer is represented by
counsel), 1692d (which forbids debt collectors from engaging in harassing, oppressive or abusive
conduct in connection with the collection of a debt), and 1692f (which bars debt collectors from
using unfair or unconscionable collection means) of the FDCPA.
AllianceOne now moves for dismissal of the Complaint pursuant to Rule 12(b)(6),
Fed.R.Civ.P., on the grounds that plaintiff’s pleading does not satisfy the threshold Twombly
pleading requirements and that plaintiff has not stated a claim for violation of the cited sections
of the FDCPA.
II.
Analysis.
It is now well-established that, to withstand Rule 12(b)(6) scrutiny, plaintiffs must plead
“enough facts to state a claim to relief that is plausible on its face,” so as to “nudge[] their claims
across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (citation omitted). Thus, minimum pleading standards “require[] more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. This standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949. Rather, as the Eleventh
Circuit has explained, Twombly/Iqbal principles require that a plaintiff plead “enough facts to
state a claim to relief that is plausible on its face,” whose allegations are “enough to raise a right
to relief above the speculative level.” Speaker v. U.S. Dep’t of Health and Human Services
Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (citations
omitted); see also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 958 (11th Cir. 2009) (“A
plaintiff must provide enough factual allegations, which are assumed to be true, to raise a right to
relief above the speculative level.”). The complaint must “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Speaker, 623 F.3d
at 1380 (citations omitted).
Defendant’s position is that none of Eslava’s FDCPA claims as pleaded in the Complaint
satisfy the Iqbal / Twombly standard. The Court will consider each claim in turn.
Under 15 U.S.C. § 1692c, as a general rule, a debt collector may not communicate with a
debtor concerning the collection of a debt “if the debt collector knows the consumer is
represented by an attorney with respect to such debt.” 15 U.S.C. § 1692c(a)(2). AllianceOne
insists that Eslava’s § 1692c cause of action is legally deficient because she failed to plead that
defendant had actual knowledge that she was represented by counsel when it mailed
correspondence to her. Abundant precedent, as well as the plain statutory language, confirms
that this claim requires Eslava to prove that AllianceOne had actual knowledge that she was
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represented by counsel. See, e.g., Erickson v. General Elec. Co., --- F. Supp.2d ----, 2012 WL
601171, *3 (M.D. Fla. Feb. 23, 2012) (“actual knowledge is an element necessary to prove
violations of FDCPA § 1692c(a)(2)”); Watson v. Capitol One Services, LLC, 2011 WL 2560230,
*4 (M.D. Fla. June 7, 2011) (“In deciding what type of knowledge is required under this
provision of the FDCPA, the great majority of federal courts have required actual knowledge on
the part of the debt collector, declining to impute knowledge by the creditor to the debt
collector.”); Micare v. Foster & Garbus, 132 F. Supp.2d 77, 80 (N.D.N.Y. 2001) (“Courts have
construed the knowledge component of 1692c(a)(2) to require that a debt collector possess actual
knowledge that the debtor was represented by an attorney.”).
There is also at least limited precedent supporting the notion that a plaintiff bringing a §
1692c claim must plead specific facts showing that the debt collector possessed the requisite
knowledge. See, e.g., Cavanaugh v. HSBC Card Services Inc., 2010 WL 3746260, *2 (M.D. Fla.
Sept. 22, 2010) (“The instant Complaint fails to sufficiently allege that Rubin had actual
knowledge that the Plaintiff was represented by counsel … and, thus, the Motion is due to be
granted.”). This proposition is not free from doubt. After all, even in the wake of Iqbal and
Twombly, federal plaintiffs need not plead specifically every element of their claims, much less
plead detailed facts in support of each element. See, e.g., American Federation of Labor and
Congress of Indus. Organizations v. City of Miami, FL, 637 F.3d 1178, 1186 (11th Cir. 2011) (in
post-Twombly era, recognizing that “notice pleading does not require a plaintiff to specifically
plead every element of his cause of action”); Ceant v. Aventura Limousine & Transp. Service,
Inc., --- F. Supp.2d ----, 2012 WL 2428536, *3 (S.D. Fla. June 27, 2012) (“While Twombly and
Iqbal have certainly raised the bar for notice pleading, they do not demand detailed factual
allegations.”) (citation and internal quotation marks omitted).
Nonetheless, the Court agrees with AllianceOne that, in its present form, the Complaint
does not set forth a plausible claim for relief under § 1692c because it is devoid of allegations
that might support a violation of that section (i.e., that AllianceOne sent a dunning letter to
Eslava directly despite knowledge that she had an attorney). In response, Eslava filed a brief in
which she set forth detailed facts raising a reasonable inference that AllianceOne did, indeed,
possess such actual knowledge. (Doc. 16, at 3.) Those facts are not pleaded in the Complaint
and therefore do not, in their present form, defeat the Motion to Dismiss; however, plaintiff has
requested leave to amend the Complaint to incorporate those facts. “Generally, where a more
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carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to
amend the complaint before the district court dismisses the action with prejudice.” Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citation omitted); see also Corsello v. Lincare,
Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (“Ordinarily, a party must be given at least one
opportunity to amend before the district court dismisses the complaint.”). Under the
circumstances, the Court grants the Motion to Dismiss with respect to the § 1692c claim,
provided that plaintiff may file an Amended Complaint on or before October 5, 2012 to replead
said cause of action in a manner that comports with minimum pleading standards.1
Plaintiff has also brought a claim under 15 U.S.C. § 1692d. That section provides that
“[a] debt collector may not engage in any conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the collection of a debt.” § 1692d. The
Complaint, as pleaded, alleges that AllianceOne’s mailing of a single dunning letter to Eslava
rather than to her counsel, in and of itself, violated § 1692d. To be clear, the Complaint does not
allege that anything in the content of the letter was threatening, intimidating, harassing,
oppressive, or abusive, but rather alleges that defendant’s bare act of sending the letter to Eslava
directly meets that standard. As defendant correctly observes, the law is otherwise. See, e.g.,
Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985) (finding as a matter of law that
1
The Court recognizes, of course, that notwithstanding the liberal amendment
policy of the Federal Rules of Civil Procedure, “denial of leave to amend is justified by futility
when the complaint as amended is still subject to dismissal.” Hall v. United Ins. Co. of America,
367 F.3d 1255, 1263 (11th Cir. 2004) (citation omitted). AllianceOne argues in its reply that the
proposed additional facts identified in Eslava’s response are insufficient to state a claim under §
1692c because they do not show actual knowledge. In support of this contention, defendant
maintains that the facts identified by Eslava to show actual knowledge may also support a
contrary inference that AllianceOne lacked such knowledge. Of course, the pleadings stage is
not the time for a federal court to sift through and decide among competing reasonable
inferences from factual allegations. The existence of such competing inferences does not
establish that the contemplated amendment would be futile. To phrase it in Twombly
terminology, the § 1692c claim would be nudged across the line from conceivable to plausible
once bolstered by the additional facts cited in plaintiff’s brief. Eslava need accomplish nothing
more at the pleadings stage, once those facts are incorporated into her pleadings. Besides, where
Eslava has alleged facts providing at least circumstantial evidence of actual knowledge by
AllianceOne, it would be grossly unfair and inequitable to dismiss her Complaint without giving
her the opportunity to conduct discovery to develop further what defendant did or did not
actually know when it mailed the dunning letter to her.
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§ 1692d does not proscribe debt collector from sending letters warning that legal action would be
taken against debtor unless entire balance was paid promptly); Masterson v. Meade County
Fiscal Court, 489 F. Supp.2d 740, 758 (W.D. Ky. 2007) (“The Plaintiffs have only alleged that
the Defendants mailed them a bill. That action does not equate to harassing, oppressive or
abusive conduct described in Section 1692d.”). Faced with AllianceOne’s Motion to Dismiss the
§ 1692d cause of action for failure to state a claim, Eslava says nothing. She offers no
explanation for why defendant’s mere mailing of a single letter to her instead of to her lawyer
could possibly reach the threshold of harassing, oppressing or abusive conduct within the
meaning of that section of the FDCPA. She certainly does not identify any case law holding or
suggesting that a viable § 1692d claim may arise from a debt collector’s transmission of a single
collection letter to a represented debtor. And the Court has found none.
Without question, § 1692d “does not preclude debt collectors from making non-abusive
statements designed to encourage voluntary payment.” Sparks v. Phillips & Cohen Associates,
Ltd., 641 F. Supp.2d 1234, 1245 (S.D. Ala. 2008). Moreover, “[c]ourts have … dismissed
claims filed pursuant to § 1692d as a matter of law if the facts alleged do not have the natural
consequence of harassing or abusing a debtor.” Harvey v. Great Seneca Financial Corp., 453
F.3d 324, 330 (6th Cir. 2006). The allegations of the Complaint set forth facts as to
AllianceOne’s conduct that do not, as a matter of law, have a natural consequence of harassing or
abusing a debtor. Plaintiff has not even tried to argue otherwise. Accordingly, the Motion to
Dismiss is granted as to the § 1692d claim, and that cause of action is dismissed.
Finally, plaintiff brought a claim under § 1692f, which prohibits the use of “unfair or
unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Case law
clearly establishes that, to state a claim for violation of § 1692f, a plaintiff must either allege
improper acts specifically enumerated in that section or allege misconduct beyond that which the
plaintiff alleges violates other provisions of the FDCPA. See, e.g., Stewart v. Bierman, --- F.
Supp.2d ----, 2012 WL 1655716, *9 (D. Md. May 8, 2012) (“Plaintiffs’ § 1692f claim here fails
to allege any conduct separate and distinct from the alleged § 1692e violations. … Plaintiffs fail
to allege any separate facts that contend that Defendants engaged in unfair or unconscionable
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practices under § 1692f[.] Therefore Defendants’ motion to dismiss the § 1692f claim will be
granted.”).2
Here, the Complaint unequivocally shows that Eslava is attempting to bootstrap a § 1692f
claim onto a claim of an alleged § 1692d violation. The foregoing line of precedent forbids her
from doing so. Tellingly, in response to the Motion to Dismiss, Eslava makes no effort to defend
the § 1692f claim or to suggest that it is legally cognizable even though it is an unabashed retread
of her § 1692d cause of action. Accordingly, the Court finds that plaintiff’s § 1692f claim, as
pleaded, fails as a matter of law. The Motion to Dismiss is granted as to this claim, and the §
1692f cause of action is dismissed.
III.
Conclusion.
For all of the foregoing reasons, the Motion to Dismiss (doc. 4) is granted, provided that
plaintiff will be permitted one opportunity to amend her Complaint to replead her FDCPA
claims. Any such Amended Complaint must be filed on or before October 5, 2012, failing
which this action will be dismissed without prejudice and the file will be closed for statistical and
administrative purposes.
DONE and ORDERED this 20th day of September, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
2
See also Amina v. WMC Mortg. Corp., 2011 WL 1869835, *16 (D. Haw. May 16,
2011) (“The court agrees that Plaintiffs may not simply rely on violations of other FDCPA
provisions to state violations of … 1692f.”); Carman v. CBE Group, Inc., 782 F. Supp.2d 1223,
1234 (D. Kan. 2011) (in § 1692f context, “[w]here [p]laintiff fails to allege conduct other than
that asserted to violate another FDCPA provision, such will be deemed deficient under this
provision”) (citation omitted); Baker v. Allstate Financial Services, Inc., 554 F. Supp.2d 945,
953 (D. Minn. 2008) (deeming § 1692f “inapplicable” where plaintiff’s claims were all
predicated on conduct that was addressed by “[m]ultiple specific FDCPA provisions”); Taylor v.
Heath W. Williams, LLC, 510 F. Supp.2d 1206, 1217 (N.D. Ga. 2007) (dismissing § 1692f claim
that neither alleged violation of any enumerated subsections of § 1692f nor identified any
misconduct beyond that which plaintiffs alleged to be in violation of other provisions of
FDCPA); Foti v. NCO Financial Systems, Inc., 424 F. Supp.2d 643, 667 (S.D.N.Y. 2006)
(finding that motion to dismiss § 1692f claim should be granted where complaint failed to allege
any improper acts enumerated in subsections (1) through (8) and likewise did “not identify any
misconduct beyond that which Plaintiffs assert violate other provisions of the FDCPA”).
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