Nemerovsky v. Revenue Recovery Corporation

Filing 28

OPINION AND ORDER granting 15 Defendant's Motion to Dismiss. Plaintiff may file an amended complaint within 14 days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 3/18/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAWN
NEMEROVSKY,
individually and on behalf
of all others similarly
situated,
Plaintiff,
v.

Case No: 2:14-cv-607-FtM-29DNF

REVENUE
CORPORATION,

RECOVERY

Defendant.

OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss (Doc. #15) filed on December 11, 2014. Plaintiff
filed a Response (Doc. #23) on January 19, 2015 to which Defendant
filed a Reply (Doc. #26) on January 30, 2015.

For the reasons set

forth below, the motion is granted.
I.
Plaintiff Dawn Nemerovsky (Plaintiff) has filed a three-count
Complaint (Doc. #1) on behalf of herself and those similarly
situated,
(Defendant)
Practices

against

Defendant

alleging
Act

violations

(FDCPA)

Practices Act (FCCPA).

Revenue

and

the

of

the

Florida

Recovery
Fair

Corporation

Debt

Collection

Consumer

Collection

The underlying facts, as set forth in the

Complaint, are as follows:

Defendant is a Tennessee debt collection corporation doing
business

under

the

names

“Revenue

“Revenue Recovery Corporation I.”

Recovery

Corporation”

(Id. at ¶¶ 5-7.)

and

At some point

prior to October 2013, Plaintiff incurred a debt as the term is
defined in the FDCPA.

(Id. at ¶¶ 16-20.) Sometime thereafter,

Defendant purchased Plaintiff’s debt and attempted to collect it
via telephone calls and dunning letters.

(Id.)

These collection

activities took place between October 2013 and February 2014.
(Id.)

According to Plaintiff, during the time Defendant attempted

to collect her debt, neither Revenue Recovery Corporation nor
Revenue

Recovery

Corporation

I

were

registered

collection agencies as required by Florida law.

as

consumer

(Id. at ¶ 22.)

As a result, Plaintiff alleges that Defendant was not permitted to
collect consumer debts in Florida and, therefore, Defendant’s
attempts to collect her debt violated both the FDCPA and the FCCPA.
(Id. at ¶¶ 23-24.)

Plaintiff further alleges that Defendant

committed the same violations in connection with hundreds of other
Florida debtors.

(Id. at ¶¶ 28-34.)

Defendant now moves to dismiss the Complaint, arguing that
records from the Florida Office of Financial Regulation (OFR)
conclusively

demonstrate

that

Defendant

was

registered

as

a

consumer collection agency at the time it attempted to collect
Plaintiff’s debt.

Plaintiff does not dispute the authenticity or

accuracy of the OFR records, but instead argues that they do not

2

reflect that the specific entity that attempted to collect her
debt was properly registered.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
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

accusation.”

an

unadorned,

Ashcroft

(citations omitted).

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

When analyzing a motion to dismiss for

failure to state a claim, the court typically considers only the
complaint and the exhibits attached thereto.

Fin. Sec. Assur.,

Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007).
However, a district court may also consider a document attached to
a motion to dismiss if the document is central to the plaintiff’s
claim and the authenticity of the document is not challenged.
v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)

3

Day

III.
Each
allegation

of

Plaintiff’s

that

three

Defendant

was

counts
not

is

premised

registered

as

a

upon

the

consumer

collection agency at the time it attempted to collect Plaintiff’s
debt.

Defendant contends that OFR records conclusively prove

otherwise.

If Defendant was properly registered, Plaintiff’s

claims fail.

Thus, OFR records documenting Defendant’s licensing

status are central to Plaintiff’s case.

Additionally, Plaintiff

does not contest the accuracy or authenticity of the OFR records
provided by Defendant. Indeed, Plaintiff also cites to OFR records
in her opposition brief.

(Doc. #23, pp. 6-23.)

Therefore, the

Court may properly consider the OFR records for the purposes of
Defendant’s motion.
802

(11th

Cir.

See, e.g., Horne v. Potter, 392 F. App'x 800,

2010)

(in

an

employment

discrimination

case,

district court could consider a “Notification of Personnel Action”
attached to defendant’s motion to dismiss).
Here, the OFR records demonstrate that Revenue Recovery
Corporation I (doing business as Revenue Recovery Corporation) is
a licensed consumer collection agency.

(Docs. ##15-1; 15-2.)

Its

license was first issued in February 2011, was renewed yearly from
2011 to 2014, and was set to expire in December 2014.

(Id.)

Therefore, the Court concludes that the OFR records establish that
Revenue Recovery Corporation was a licensed consumer collection

4

agency when it attempted to collect Plaintiff’s debt in late 2013
and early 2014.
Plaintiff nonetheless argues that the OFR records do not
exonerate Defendant because Defendant’s allegedly impermissible
collection activities were made via a separate unregistered entity
known as Adjustment Service of North America (Adjustment Service).
The name “Adjustment Service” does not appear in Defendant’s OFR
records and Defendant does not argue that Adjustment Service was
a

licensed

consumer

collection

agency

attempted to collect Plaintiff’s debt.

at

alleges

that

Revenue

time

Defendant

However, the Complaint

makes no mention of Adjustment Service.
Complaint

the

To the contrary, the

Recovery

Corporation,

not

Adjustment Service, was the entity that attempted to collect her
debt.

When reviewing a motion to dismiss, a district court cannot

consider factual allegations that the plaintiff failed to allege
in the complaint.
847,

850

n.4

Skillern v. Ga. Dep't of Corr., 191 F. App'x

(11th

Cir.

2006).

Accordingly,

Plaintiff’s

allegations regarding Adjustment Service must be disregarded.
As explained above, the OFR records demonstrate that Revenue
Recovery Corporation was a registered consumer collection agency
at the time it attempted to collect Plaintiff’s debt. As a result,
each of Plaintiff’s claims fail and the Complaint will be dismissed
without

prejudice.

different,

If

unregistered

Plaintiff
entity

5

intends

such

as

to

allege

Adjustment

that

a

Service

attempted to collect her debt, she may do so in an Amended
Complaint.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #15) 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
March, 2015.

Copies: Counsel of record

6

18th

day of