Nemerovsky v. Revenue Recovery Corporation

Filing 42

OPINION AND ORDER denying 31 Defendant's Motion to Dismiss Plaintiff's Amended Complaint. Signed by Judge John E. Steele on 7/8/2015. (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 Plaintiff’s Amended Complaint (Doc. #31) filed
on April 15, 2015.

Plaintiff filed a Response (Doc. #32) on April

29, 2015 to which Defendant filed a Reply (Doc. #35) on May 19,
2015.

At the Court’s request, the parties filed supplemental

memoranda (Docs. ##39-40) on June 18 and July 2, 2015.

For the

reasons set forth below, the motion is denied.
I.
Plaintiff Dawn Nemerovsky (Plaintiff) has filed a three-count
Amended

Complaint

(Doc.

#1)

on

behalf

of

herself

and

those

similarly situated, against Defendant Revenue Recovery Corporation
alleging violations of the Fair Debt Collection Practices Act
(FDCPA) and the Florida Consumer Collection Practices Act (FCCPA).

The underlying facts, as set forth in the Amended Complaint, are
as follows:
Defendant is a Tennessee debt collection corporation doing
business under the names “Revenue Recovery Corporation” (RRC) and
“Revenue

Recovery

Corporation

I”

(RRCI).

(Id.

at

¶¶

6-7.)

Defendant previously conducted business under the name Adjustment
Service of North America, Inc. (Adjustment Service).
8.)

(Id. at ¶

At some point prior to October 2013, Plaintiff incurred a

debt as the term is defined in the FDCPA.

(Id. at ¶ 21.) Sometime

thereafter, Defendant purchased Plaintiff’s debt and attempted to
collect it via telephone calls and dunning letters.
22-25.)

(Id. at ¶¶

The collection activities took place between October 2013

and February 2014.

(Id.)

According to Plaintiff, during the time

Defendant attempted to collect her debt, neither RRC nor RRCI were
registered as consumer collection agencies as required by Florida
law.

(Id. at ¶ 27.)

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 ¶¶ 26-32.)

Plaintiff further

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

(Id. at ¶ 30.)

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

demonstrate

that

Defendant

2

was

registered

as

a

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

In response, Plaintiff does not dispute the

authenticity or accuracy of the OFR records, but instead argues
that they do not reflect that Defendant was properly registered at
all relevant times.
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

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, 94 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.

3

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

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 wellpleaded factual allegations, a court should assume their veracity
and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

Iqbal, 556 U.S. at 679
III.

Each
allegation

of

Plaintiff’s

that

Defendant

three
was

counts
not

is

premised

registered

as

a

upon

the

consumer

collection agency at the time it attempted to collect her 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 attaches OFR records as exhibits

to her Amended Complaint.

(Docs. ##29-1, 29-2.)

Therefore, the

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

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

4

802

(11th

Cir.

2010)

(in

an

employment

discrimination

case,

district court could consider a “Notification of Personnel Action”
attached to defendant’s motion to dismiss).
In its June 4, 2015 Order (Doc. #36), the Court concluded
that while the OFR records provided by Defendant proved that
Defendant is currently registered as a consumer collection agency,
the OFR records were not conclusive proof that Defendant was
registered at the time Defendant attempted to collect Plaintiff’s
debt in late 2013 and early 2014.

(Id. at pp. 4-6.)

Accordingly,

the Court granted Defendant the opportunity to provide additional
OFR

records

demonstrating

relevant time period.
Defendant’s

that

it

was

registered

during

the

(Id.)

supplemental

filing

did

not

provide

any

additional OFR records concerning Defendant’s registration during
late 2013 and early 2014. Indeed, Defendant concedes that it “does
not have an actual copy of the application which was submitted”
for that time period.

(Doc. #39-1, ¶ 18.)

Instead, Defendant

provided an affidavit from Jennifer Stamps, Defendant’s Director
of Administration, in which she testifies that she contacted the
OFR by phone in December 2012 and was told that Defendant was
registered for the 2013 registration period.

(Id. at ¶¶ 20-22.)

However, Defendant’s affidavit cannot be used to contradict wellpled factual allegations in Plaintiff’s Amended Complaint.

Here,

Plaintiff has alleged that Defendant was not registered as a

5

consumer collection agency at the time it attempted to collect her
debt.

This well-pled factual allegation must be taken as true,

Erickson, 551 U.S. at 94, except in the rare circumstance where it
is contradicted by undisputed documentary evidence, see Crenshaw
v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009).

As explained

above and in the Court’s June 4, 2015 Order (Doc. #36), the OFR
records

provided

by

Defendant

are

not

conclusive

proof

that

Defendant was registered at the time Defendant attempted to collect
Plaintiff’s debt in late 2013 and early 2014.

Accordingly,

Defendant’s motion is denied.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint
(Doc. #31) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2015.

Copies: Counsel of record

6

8th

day of