Speidel v. JP Morgan Chase & Co.
Filing
14
OPINION AND ORDER granting 9 Defendant's Motion to Dismiss. The Complaint is dismissed without prejudice to filing an Amended Complaint within 14 Days of this Opinion and Order. Signed by Judge John E. Steele on 2/13/2014. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL SPEIDEL
Plaintiff,
v.
Case No: 2:13-cv-852-FtM-29DNF
JP MORGAN CHASE & CO.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #9) filed on December 12, 2013.
Plaintiff
filed a Response in Opposition (Doc. #12) on December 19, 2013.
For the reasons set forth below, the motion is granted.
I.
On October 29, 2013, plaintiff Michael Speidel filed a four
count Complaint against defendant JP Morgan Chase & Co. in the
Small Claims Court of the Twentieth Judicial Circuit in and for
Collier County, Florida.
The Complaint asserts violations of
Florida’s Consumer Collection Practices Act, Fla. Stat. § 559.55
et
seq.
(the
FCCPA)
(Count
I),
and
the
Telephone
Consumer
Protection Act, 47 U.S.C. § 227 et seq. (the TCPA) (Count IV).
Plaintiff also seeks injunctive and declaratory relief based on
the alleged violations of the FCCPA (Counts II and III).
In
support of his claims, plaintiff alleges the following:
Plaintiff is a consumer and “became delinquent in making
payments under the contract for specific reason.”
(Doc. #2, ¶ 7.)
In an effort to collect the debt, defendant misrepresented the
amount due and owing under the contract and undertook an aggressive
and outrageous course of conduct that exceeded any reasonable
bounds of decency, including the use of repeated telephone calls,
obscene language, threats, calls and hang-ups, false and egregious
incomplete reports to credit bureaus and reporting agencies, and
similar conduct designed to threaten and intimidate plaintiff.
Plaintiff also alleges that defendant used an automatic telephone
dialing system and/or an artificial or prerecorded voice to deliver
a message to plaintiff’s residential or cellular phone without
prior consent.
Following service of the Complaint, defendant removed the
case to this Court and subsequently filed a motion to dismiss.
The motion to dismiss asserts that the claims lack adequate factual
support and that the claims for injunctive and declaratory relief
are duplicative of plaintiff’s claim under the FCCPA.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
2
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels 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 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).
“more
than
an
accusation.”
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
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 support are entitled to no assumption of truth,”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
Mamani
2011)(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
facially plausible.”
“Factual allegations that are merely
defendant’s
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal quotation marks and citations
3
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.”
Iqbal, 556 U.S. at 679.
III.
After reviewing the Complaint, the Court concludes that the
asserted claims are merely consistent with defendant’s liability
and lack adequate factual support.
As a preliminary matter, the
foundation upon which plaintiff’s claim rests is impermissibly
vague.
Plaintiff refers to “the contract” and “an account ending
in 0912,” but fails to identify what contract he is referring to
or what type of account is at issue.
identify
defendant’s
connection
to
The Complaint also fails to
the
debt
(i.e.,
whether
defendant is the creditor or merely servicing the account).
In Count I of the Complaint, plaintiff alleges that defendant
violated Fla. Stat. §§ 559.72(7) and (9), but has offered little
more than a threadbare recitation of the elements of a cause of
action in support of his contentions.
For example, plaintiff
alleges that defendant misrepresented the amount due on the debt
and made false reports to credit bureaus and reporting agencies,
but has failed to allege how the amount due was misrepresented or
how the reports were false.
Because these bare assertions are
little “more than an unadorned, the defendant-unlawfully-harmed-
4
me accusation,” Count I will be dismissed without prejudice.
Iqbal, 556 U.S. at 678 (citations omitted).
See
For similar reasons,
the remaining counts will also be dismissed.
Counts II and III seek injunctive and declaratory relief based
on defendant’s alleged violations of the FCCPA.
As previously
discussed, the allegations regarding the alleged violations of the
FCCPA are inadequate and no additional allegations are provided;
thus, Counts II and III will be dismissed.
In Count IV, plaintiff
alleges that defendant willfully violated the TCPA by placing calls
using an automatic telephone dialing system to dial plaintiff’s
cellular or residential telephone, or by using an artificial or
prerecorded voice to deliver a message to plaintiff. No additional
allegations are provided.
The Court finds that such allegations
merely follow the language of the statute and are consistent with
defendant’s
liability.
Furthermore,
plaintiff
has
failed
to
identify the nature of the calls; thus, it is impossible to know
if the automated calls were unlawful or exempt by rule or order.
See 47 U.S.C. § 227(b)(1)(B).
Because Count IV lacks adequate
factual support, it will be dismissed without prejudice.
In
addition
to
its
argument
regarding
the
pleading
deficiencies, defendant asserts that Counts II and III should be
dismissed
as
duplicative.
Because
5
Counts
II
and
III
are
inadequately pled, the Court will not address defendant’s argument
at this time.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #9) is GRANTED and the
Complaint is dismissed without prejudice to filing an Amended
Complaint within FOURTEEN (14) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
February, 2014.
Copies:
Counsel of record
6
13th
day of
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