Ashley v. General Electric Capital Corporation
Filing
20
OPINION AND ORDER denying 10 Defendant's Motion to Dismiss Complaint. See Opinion and Order for details. Signed by Judge John E. Steele on 11/21/2013. (AAA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TERESA ASHLEY,
Plaintiff,
vs.
Case No.
2:13-cv-353-FtM-29UAM
GENERAL ELECTRIC CAPITAL
CORPORATION,
Defendant.
__________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss Complaint (Doc. #10) filed on July 8, 2013.
Plaintiff
filed a Response in Opposition (Doc. #16) on July 26, 2013.
For
the reasons set forth below, the motion is denied.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that
the
8(a)(2).
pleader
This
is
entitled
obligation
to
relief.”
“requires
more
Fed.
R.
Civ.
than
labels
P.
and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)(citation omitted).
To survive dismissal,
the factual allegations must be “plausible” and “must be enough
-1-
to raise a right to relief above the speculative level.”
Id. at
555.
See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th
Cir.
2010).
This
requires
“more
than
an
defendant-unlawfully-harmed-me accusation.”
unadorned,
the-
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court
must accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff, Erickson v.
Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without
adequate
factual
truth,”
Mamani
support
v.
are
Berzain,
2011)(citations omitted).
entitled
654
F.3d
to
1148,
no
assumption
1153
(11th
of
Cir.
“Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations
that are merely consistent with a defendant’s liability fall
short of being facially plausible.”
Chaparro v. Carnival Corp.,
693 F.3d 1333, 1337 (11th Cir. 2012)(internal quotation marks
and citations omitted).
Thus, the Court engages in a two-step
approach: “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.”
556 U.S. at 679.
-2-
Iqbal,
II.
On May 9, 2013, plaintiff Teresa Ashley (Ashley) filed a
two-count Complaint (Doc. #1) against General Electric Capital
Corporation
Consumer
(GECC),
alleging
Protection
Act
violations
(TCPA)
Collection Practices Act (FCCPA).
and
of
the
the
Florida
Telephone
Consumer
In support, plaintiff alleges
the following:
In early June 2012, plaintiff received a telephone call to
her cellular phone from defendant.
(Id., ¶ 14.)
Defendant left
a prerecorded voice mail for a person by the name of “Rosa,”
seeking to collect a debt.
(Id., ¶¶ 10, 14, 18.)
Plaintiff
returned defendant’s call the same day, informed defendant that
she did not owe them any money, and requested to be taken off
their calling list.
(Id., ¶ 14.)
Despite this request, between
June 2012 and September 2012, plaintiff received approximately
sixty
more
prerecorded
calls
defendant.
(Id., ¶ 19.)
defendant’s
calls
on
on
her
cellular
telephone
from
During this time, plaintiff returned
approximately
ten
to
occasions to advise defendant of their mistake.
fifteen
different
(Id., ¶ 15.)
III.
Defendant argues that plaintiff does not have standing to
bring an FCCPA claim because plaintiff is not an alleged debtor.
Defendant further argues that in the event the Court finds that
plaintiff is an alleged debtor and does have standing to bring
-3-
an
FCCPA
claim,
dismissed.
then
the
plaintiff’s
TCPA
claim
must
be
This is because, defendant argues, debt collection
calls are exempt from TCPA violations.
The Court will address
Count II before Count I.
A.
FCCPA
Count II alleges that defendant violated the FCCPA, Fla.
Stat. § 559.55, et seq.
The FCCPA was enacted “as a means of
regulating the activities of consumer collection agencies within
the state.”
LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1190 (11th Cir. 2010). Fla. Stat. § 559.77(1) provides that “[a]
debtor may bring a civil action against a person violating the
provisions
of
§
559.72
in
the
county
in
which
the
alleged
violator resides or has his or her principal place of business
or in the county where the alleged violation occurred.”
Under the Act, “unless the context otherwise indicates,” a
“debtor”
includes
an
actual
debtor
as
well
as
person . . . allegedly obligated to pay any debt.”
559.55(2).
“any
natural
Fla. Stat. §
In determining whether a plaintiff is an alleged
debtor, “the question is not whether [the creditor] thought []
the individual, was obligated to pay the debt; rather, it is
whether [the creditor] communicated to the called party that she
was obligated.”
Fini v. Dish Network L.L.C., No. 6:12–cv–690–
Orl–22TBS, 2013 WL 3815627, at *9 (M.D. Fla. March 6, 2013).
-4-
Defendant argues that plaintiff is not an “alleged debtor”
under the FCCPA and as a result does not have standing to bring
her claim.
(Doc. #10, pp. 2, 3.)
In support, defendant asserts
that plaintiff’s allegation that she is an “alleged debtor” is
conclusory and is contradicted by the substantive allegations of
the Complaint, including that she returned the initial phone
call and informed defendant that she did not owe them any money
and that defendant was attempting to reach a person by the name
of
“Rosa.”
(Id.,
p.
3.)
Plaintiff
responds
that
she
has
standing and in support cites to Desmond v. Accounts Receivable
Mgmt., Inc., 72 So. 3d 179 (Fla. 2d DCA 2011), in which the
creditor mistakenly attributed a debt to the called party who
had the same first and last name as the actual debtor.
The
court held that the called party had standing to bring an FCCPA
claim because he was alleged by the defendant to owe a debt.
Id. at 181.
Plaintiff also cites Fini, 2013 WL 3815627, where
the debt collector mistakenly attributed a debt to a plaintiff
after the actual debtor misrepresented the plaintiff’s number as
his own.
Relying on Desmond, the Fini court held that the
plaintiff had standing despite plaintiff’s knowledge that the
debtor was mistaken, because the creditor communicated to the
plaintiff that she was obligated to pay the debt.
Based
allegations
on
the
that
allegations
even
after
of
the
plaintiff
-5-
Id.
Complaint,
informed
including
defendant
on
multiple occasions that she did not owe defendant any money, she
continued to receive calls from defendant, the Court finds that
plaintiff has alleged sufficient facts to have standing to bring
a
claim
against
defendant
under
the
FCCPA.
Therefore,
defendant’s motion to dismiss Count II will be denied.
B.
TCPA
Defendant citing to Meadows v. Franklin Collection Serv.,
Inc., 414 F. App’x 230, 235 (11th Cir. 2011), asserts that the
TCPA does not apply to a debt collection call.
cited
in
Meadows
only
apply
to
calls
made
telephone lines, and not cellular telephones.
C.F.R.
§
64.1200.
Therefore,
defendant’s
The exemptions
to
residential
Id.; see also 47
motion
to
dismiss
Count I will also be denied.
Accordingly, it is now
ORDERED AND ADJUDGED:
Defendant’s
Motion
to
Dismiss
Complaint
(Doc.
#10)
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 21st day of.
Copies:
Counsel of record
-6-
is
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?