Lutman et al v. Harvard Collection Services, Inc.

Filing 22

ORDER granting 10 Defendant Harvard Collection Services, Inc.'s Motion to Dismiss and/or Strike Portions of Plaintiffs' Complaint. Count II of the Complaint is struck as redundant of Count I, and Counts III through IX are dismissed without prejudice. Signed by Judge Sheri Polster Chappell on 8/6/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL N. LUTMAN and DEBORAH
C. LUTMAN,
Plaintiffs,
v.

Case No: 2:15-cv-257-FtM-38CM

HARVARD COLLECTION
SERVICES, INC.,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant Harvard Collection Services,
Inc.'s Motion to Dismiss and/or Strike Portions of Plaintiffs' Complaint (Doc. #10) filed on
July 2, 2015. In response, Plaintiffs Michael N. Lutman and Deborah C. Lutman filed an
untimely First Amended Complaint (Doc. #20), which the Court struck for noncompliance
with Rule 15(a) of the Federal Rules of Civil Procedure. This matter is ripe for review.
BACKGROUND
Defendant is a corporation engaged in debt collection practices, and Plaintiffs are
residents of Charlotte County, Florida. (Doc. #1 at ¶¶ 7-8). From October 31, 2014 to
March 2, 2015, Defendant allegedly called Plaintiffs' cellular telephones using an

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automatic dialing system no less than sixty-two times without their prior permission. (Doc.
#1 at ¶¶ 14-76, 81).
As a result, Plaintiffs commenced this nine-count action on April 24, 2015, under
the Telephone Consumer Protection Act ("TCPA"), the Fair Debt Collection Practices Act
("FDCPA"), and the Florida Consumer Collection Practices Act ("FCCPA"). (Doc. #1).
Plaintiffs allege that Defendant violated each statute in an attempt "to collect [an] alleged
but nonexistent debt." (Doc. #1 at ¶ 3). Plaintiffs specifically assert the following claims
against Defendant:


Count I – Violation of the TCPA, 47 U.S.C. § 227(b)(1)(A);



Count II – Violation of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii);



Count III – Violation of the FDCPA, 15 U.S.C. § 1692d(5);



Count IV – Violation of the FDCPA, 15 U.S.C. § 1692d(6);



Count V – Violation of the FDCPA, 15 U.S.C. § 1692e(10);



Count VI – Violation of the FDCPA, 15 U.S.C. § 1692e(11);



Count VII – Violation of FCCPA, Fla. Stat. § 559.72(7);



Count VII – Violation of FCCPA, Fla. Stat. § 559.72(9); and



Count IX – Request for Injunctive Relief Under Fla. Stat. § 559.77(2).

(Doc. #1). In response, Defendant answered Count I (Doc. #9), but separately moved to
strike Count II under Rule 12(f) of the Federal Rules of Civil Procedure, and dismiss
Counts III to IX for failure to state a claim upon which relief may be granted under Rule
12(b)(6) of the Federal Rules of Civil Procedure (Doc. #10 at 3-4).

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STANDARDS OF REVIEW
A. Motion to Strike
Rule 12(f) provides "[t]he court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f).
A party may move to strike "either before responding to the pleading or, if a response is
not allowed, within 21 days after being served with the pleading." Fed. R. Civ. P. 12(f).
A motion to strike is a drastic remedy and disfavored by courts. See Thompson v. Kindred
Nursing Ctrs. E., LLC, 211 F.Supp.2d 1345, 1348 (M.D. Fla. 2002). A court will typically
deny a motion to strike "unless the matter sought to be omitted has no possible
relationship to the controversy, may confuse the issues, or may otherwise prejudice the
party." Coca-Cola Foods v. Emresa Comercial Interancional De Frutas S.A., 941 F. Supp.
1182, 1184 (M.D. Fla. 1996).
B. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), "a [c]omplaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. at 678. The issue in resolving such a motion is not whether
the non-movant will ultimately prevail, but whether the non-movant is entitled to offer
evidence to support his claims. See id. at 678-79.
"Determining whether a complaint states a plausible claim for relief [is] … a
context-specific task that requires the reviewing court to draw on its judicial experience

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and common sense." Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions
couched as factual allegations are not sufficient, nor are unwarranted inferences,
unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555.
Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading
requirements that also must be satisfied. Under this rule, "a pleading 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). "[T]he pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, the-defendant-unlawfullyharmed-me-accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Labels, conclusions, and formulaic recitations of the elements of a cause of action are not
sufficient. See id. at 678-79. Mere naked assertions are also inadequate. See id.
DISCUSSION
Defendant challenges the Complaint on several grounds. First, Defendant
contends Count II is redundant of Count I and must be stricken. (Doc. #10 at 3-4).
Second, it contends Counts III through VIII assert no factual allegations to support claims
under the FDCPA and FCCPA. (Id. at 3, 5-6). Third, Defendant contends Plaintiffs'
request for injunctive relief is meritless.

(Id. at 6-7). The Court will address each

argument in turn.

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A. Count II – Violation of the TCPA
As stated, Defendant argues Count II is redundant of and subsumed within the
allegations contained in Count I, to which it filed an Answer. (Doc. #10 at 3). The Court
agrees. Count I and Count II are functionally identical claims. Their only difference is
that Count II specifies which of § 227(b)(1)(A)'s three subsections that Plaintiff alleges
against Defendant. Upon reading § 227(b)(1)(A), it is plain that subsection (iii) is the only
applicable subsection to this case. Subsections (i) and (ii) make it unlawful to call an
emergency telephone line (e.g., "911") or a guest/patient room of a hospital, health care
facilities, elderly home, or similar establishment, respectively, using an automatic
telephone dialing system. 47 U.S.C. § 227(b)(1)(A)(i)-(ii). Since Plaintiffs are natural
persons, subsections (i) and (ii) are not applicable to their allegations against Defendant.
Accordingly, the Court finds Count II to be redundant of Count I and strikes Count II under
Rule 12(f). See Bergin v. City of Fla., No. 8:09-CV-00286-T-17MAP, 2009 WL 1606477,
at *2 (M.D. Fla. June 8, 2009) ("'Redundant' matter consists of allegations that constitute
a needless repetition of over averments." (citations omitted)).
B. Counts III to VIII – Violations of the FDCPA and FCCPA
Next, Defendant moves to dismiss the FDCPA and FCCPA counts (Counts III-VIII)
under Rule 12(b)(6). Defendant argues there are no factual allegations that its purported
calls to Plaintiffs involved a consumer debt under the FDCPA and FCCPA. (Doc. #10 at
5-6). In addition, it contends there are no factual allegations that it allegedly used false,
deceptive, or misleading representations to collect a consumer debt. (Id. at 5).
Congress enacted the FDCPA to prohibit harassing or deceptive conduct in the
collection of a debt. See 15 U.S.C. §§1692d, 1692e. The FCCPA is "a Florida state

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analogue to the federal FDCPA." Oppenheimer v. I.C. Sys., Inc., 627 F.3d 833, 836 (11th
Cir. 2010); see also Schmidt v. Synergentic Commc'ns, Inc., No. 2:14-cv-539-FtM-29CM,
2015 WL 248635, at *2 (M.D. Fla. Jan. 20, 2015) (stating the FCCPA is "construed in
accordance with the FDCPA" (citation omitted)). "To recover under both the FDCPA and
the FCCPA …, a plaintiff must make a threshold showing that the money being collected
qualifies as a 'debt.'" Oppenheimer, 627 F.3d at 836. The FDCPA and FCCPA both
define "debt" to mean "an obligation or alleged obligation of a consumer to pay money
arising out of a transaction in which the money, property, insurance, or services which
are the subject of the transaction are primarily for personal, family, or household
purposes[.]" 15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(6). Therefore, as the Eleventh
Circuit explains,
the FDCPA and FCCPA apply only to payment obligations of a (1)
consumer arising out of a (2) transaction in which the money, property,
insurance, or services at issue are (3) primarily for personal, family, or
household purposes. The statute thus makes clear that the mere obligation
to pay does not constitute a "debt" under the FCPA.
Oppenheimer, 627 F.3d at 836 (emphasis in original and footnoted omitted). Under the
FDCPA, a "consumer" is "any natural person obligated or allegedly obligated to pay any
debt."

15 U.S.C. § 1692a(3).

Moreover, although the FDCPA does not define

"transaction," the Eleventh Circuit recognizes a broad scope of "debt" – "[a]s long as the
transaction creates an obligation to pay, a debt is created." Oppenheim, 627 F.3d at 837
(citations omitted). The Eleventh Circuit has also stated, "'at a minimum, a "transaction"
under the FDCPA must involve some kind of business dealing or other consensual
obligation.'" Id. at 838 (quoting Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371
(11th Cir. 1998)).

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As the Complaint currently stands, Plaintiff insufficiently alleges facts to support
the FDCPA and FCCPA claims. There is no allegation that Plaintiffs are "consumers"
obligated to pay Defendant money, nor is there an allegation of a business deal between
the parties to create an alleged debt.

Instead, Plaintiffs allege the opposite in the

Complaint. They plainly assert that Defendant "repeatedly harass[ed them] in attempts
to collect an alleged but nonexistent debt" and that they "have no contractual obligation
to pay Defendant." (Doc. #1 at ¶¶ 3, 13). Such allegations are insufficient to allege viable
FDCPA and FCCPA causes of action. Even viewing the Complaint in a light most
favorable to Plaintiff, there are no allegations to plausibly link Defendant's alleged calls to
Plaintiffs to a debt. Without more facts about the circumstances and nature of an alleged
debt prompting Defendant's actions relevant to this case, Counts III through VIII fail to
state claims upon which relief may be granted. See Sullivan v. CTI Collection Servs., No.
8:09-cv-365-T-30TGW, 2009 WL 1587588, at *2 (M.D. Fla. June 5, 2009) (granting a
motion to dismiss where plaintiff merely recited the elements of a cause of action). The
Court, therefore, will grant Defendant's Motion to Dismiss as to Counts III to VIII without
prejudice.
C. Count IX – Request for Injunctive Relief
Finally, Defendant moves to dismiss Plaintiffs' request for injunctive relief under
Florida Statute § 559.77(2) because they do not allege a claim under the FCCPA. (Doc.
#10 at ¶ 16). The Court agrees. As set forth above, the Court dismisses the FCCPA
claims, so injunctive relief is not available to Plaintiffs. Accordingly, the Court dismisses
Count IX without prejudice.
Accordingly, it is now

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ORDERED:
Defendant Harvard Collection Services, Inc.'s Motion to Dismiss and/or Strike
Portions of Plaintiffs' Complaint (Doc. #10) is GRANTED. Count II of the Complaint is
struck as redundant of Count I, and Counts III through IX are dismissed without prejudice.
DONE and ORDERED in Fort Myers, Florida this 6th day of August, 2015.

Copies: All Parties of Record

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