Petitt v. U.S. Bank National Association

Filing 21

ORDER granting 9 Defendant U.S. Bank National Association d/b/a Elan Financial Services' Motion to Dismiss. Plaintiff Judith K. Petitt has until and including July 23, 2014, to file an amended complaint. Signed by Judge Virginia M. Hernandez Covington on 7/7/2014. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JUDITH K. PETITT,
Plaintiff,
v.

Case No. 8:14-cv-961-T-33TGW

U.S. BANK NATIONAL ASSOCIATION
D/B/A/ ELAN FINANCIAL SERVICES,
Defendant.
________________________________/
ORDER
This cause comes before the Court pursuant to Defendant
U.S. Bank National Association d/b/a Elan Financial Services’
Motion to Dismiss (Doc. # 9) filed on June 4, 2014. Pro se
Plaintiff Judith K. Petitt filed a Response in Opposition to
the Motion (Doc. # 11) on June 9, 2014. For the reasons stated
at the hearing held on July 3, 2014, and for the reasons that
follow,

the

Court

grants

Elan’s

Motion.

However,

the

Complaint is dismissed without prejudice so that Petitt has
the opportunity to file an amended complaint, by July 23,
2014, to state a cause of action, if possible.
I. Background
On April 23, 2014, Petitt initiated this action against
Elan

for

alleged

violations

of

the

Telephone

Consumer

Protection Act (“TCPA”), the Fair Debt Collection Practices

Act (“FDCPA”) and the Florida Consumer Collection Practices
Act (“FCCPA”). (Doc. # 1). From November 1, 2013, through
April

1,

2014,

Petitt

claims

that

Elan

called

Petitt’s

cellular telephone forty times with no prior permission given
by Petitt in an attempt to collect an alleged, but nonexistent
debt. (Id. at ¶ 9). Petitt contends that she spoke with Elan
on the first call and advised Elan that the person it was
trying to reach was not at the number called. (Id. at ¶ 13).
Petitt further claims that she told Elan two additional times
that the person Elan was trying to reach was not at the number
called. (Id.). Petitt also alleges that Elan placed twentysix telephone calls to Petitt’s cellular telephone after
receiving Petitt’s Notice of Intent to Litigate letter. (Id.
at ¶ 17).
On June 4, 2014, Elan filed the relevant Motion to
Dismiss for failure to state a claim. (Doc. # 9). Petitt filed
a Response in Opposition to the Motion on June 9, 2014. (Doc.
#

11).

The

Court

has

reviewed

the

Motion,

the

Response

thereto, and is otherwise fully advised in the premises.
II. Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff.

2

Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
this

Court

favors

the

plaintiff

with

all

Further,
reasonable

inferences from the allegations in the complaint.

Stephens

v. Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, in Twombly, the Supreme Court cautioned:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).
Further, courts are not “bound to accept as true a legal
conclusion

couched

as

a

factual

allegation.”

Papasan

v.

Allain, 478 U.S. 265, 286 (1986). Furthermore, “threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
III. Analysis
A. Telephone Consumer Protection Act

3

The TCPA prohibits:
[A]ny person . . . to make any call (other than a
call made for emergency purposes or made with the
prior express consent of the called party) using
any automatic telephone dialing system or an
artificial or prerecorded voice . . . to any
telephone number assigned to a . . . cellular
telephone service. . . .
47 U.S.C. § 227(b)(1)(A)(iii).
“There are two elements to an auto-dialer TCPA claim
that a plaintiff must allege: (1) a call to a cellular
telephone; (2) via an automatic telephone dialing system.”
Murphy v. DCI Biologicals Orlando, LLC, No. 6:12-cv-1459-Orl36KRS, 2013 WL 6865772, at *4 (M.D. Fla. Dec. 31, 2013); see
47 U.S.C. § 227(b)(1)(A). The statute defines an “automatic
telephone

dialing

system”

as

“equipment

which

has

the

capacity . . . to store or produce telephone numbers to be
called, using a random or sequential number generator; and .
. . to dial such numbers.” 47 U.S.C. § 227(a)(1).
According to Elan, the Complaint does not contain any
factual allegations from which the Court can conclude Elan’s
alleged calls to Petitt were made with an automatic telephone
dialing system. (Doc. # 9 at 4). Specifically, Elan argues
that to state a claim under the TCPA, Petitt must do more
than just allege that calls were made with an automatic
telephone

dialing

system

as

there

4

must

be

some

factual

allegation to support that conclusion. (Id. at 3) (citing
Ibey v. Taco Bell Corp., No. 12-cv-0583-H(WVG), 2012 U.S.
Dist. LEXIS 91030, at *3 (S.D. Cal. June 18, 2012)(finding
that plaintiff’s conclusory allegations that defendant used
an automatic telephone dialing system were insufficient to
state a claim under the TCPA); Freidman v. Massage Envy
Franchising, LLC, No. 3:12-cv-02962-L-RBB, 2013 U.S. Dist.
LEXIS 84250, at *6 (S.D. Cal. June 13, 2013)(finding that
plaintiff’s allegations that the texts received “were placed
via an ‘automatic telephone dialing system’” were nothing
more than speculation)). Furthermore, Elan claims that the
Complaint describes calls with live persons, not a machine,
which is inconsistent with the use of an automatic telephone
dialing system. (Doc. # 9 at 4).
In response, Petitt argues that she has proof that Elan
uses automatic telephone dialing system equipment. (Doc. # 11
at ¶ 20). Specifically, Petitt submits that “each time the
Plaintiff answered the cell phone there was a 1-3 second pause
before an answer which is the [usual] and customary action of
ATDS

CAPABLE

EQUIPMENT.”

(Id.

at

¶

21).

Petitt

further

contends that it does not matter whether a live person was on
the phone during the alleged calls, as long as the equipment

5

used to make the call was automatic telephone dialing system
capable. (Id. at ¶ 22).
Upon review of the Complaint, and liberally construing
the allegations contained therein in light of Petitt’s pro se
status, this Court concludes that Petitt has stated a claim
under the TCPA.

However, while Petitt argues that Elan used

an automatic telephone dialing system, she further submits
that she spoke to a live person, specifically to tell the
individual that they had the wrong number.

While the Court

concludes that Petitt has stated a cause of action despite
this disconnect, the Court gives Petitt the opportunity to
restate her allegations to clarify any potential factual
discrepancy, if she so chooses.

As explained more fully

below, Petitt may file an amended complaint on or before July
23, 2014.
B. Fair Debt Collection Practices Act
The FDCPA regulates how a debt collection agency must
conduct itself when it attempts to collect a debt from a
customer. See 15 U.S.C. § 1692. In order to prevail on an
FDCPA claim, Petitt must demonstrate by a preponderance of
the evidence that: (1) she was the object of collection
activity arising from consumer debt; (2) Elan is a “debt
collector” as defined by the FDCPA; and (3) Elan has engaged

6

in an act or omission prohibited by the FDCPA. McCorriston v.
L.W.T., Inc., No. 8:07-CV-160-T-27EAJ, 2008 WL 3243865, at *2
(M.D. Fla. Aug. 7, 2008).
Elan points out that the FDCPA only regulates “debt
collectors,” defined as:
[A]ny person who uses any instrumentality of
interstate commerce or the mails in any business
the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due
or asserted to be owed or due another. . . . The
term does not include (A) any officer or employee of a creditor
while, in the name of the creditor, collecting
debts for such creditor;
(B) any person while acting as a debt
collector for another person, both of whom are
related by common ownership or affiliated by
corporate control, if the person acting as a debt
collector does so only for persons to whom it is so
related or affiliated and if the principal business
of such person is not the collection of debts. . .
.
15 U.S.C. § 1692a(6)(a)-(b).
Elan argues that it is not a debt collector under the
FDCPA, but rather it is the creditor to which the debt is
owed. (Doc. # 9 at 5). Furthermore, Elan posits that Petitt
has

correctly

alleged

that

U.S.

Bank

is

a

National

Association. (Id. at 6). Therefore, according to Elan, U.S.
Bank is governed pursuant to the National Bank Act and as a

7

matter

of

law

has

the

principal

business

of

banking.

(Id.)(citing Marketic v. U.S. Bank Nat’l Ass’n, 436 F. Supp.
2d 842, 854 (N.D. Tex. 2006)(finding that “US Bank’s principal
business activity is not debt collection.”)). Therefore, Elan
alleges that the FDCPA does not apply to Elan. (Id. at 5).
However, in her Response, Petitt claims that, “Elan’s
web site is on the Internet soliciting business from any
provider

who

needs

assistance

with

credit

card

services

including collection on credit card accounts.” (Doc. # 11 at
¶ 13). Petitt attaches to her Response a picture of Elan’s
web page, which states in relevant part:
As America’s leading agent credit card issuer, Elan
serves more than 1,600 financial institutions. For
more than 47 years, Elan has offered an outsourced
partnership solution, providing institutions the
ability to earn a risk-less revenue stream with a
competitive credit card program - all at no cost.
Elan’s best-in-class card products, exceptional
service, and proven road map drive successful longterm relationships and satisfied customers.
(Doc. # 11 at Ex. A).
While the Court accepts all well-pleaded facts in the
complaint as true for purposes of a Rule 12(b)(6) motion to
dismiss, it must confine its review to those facts contained
within the four corners of Petitt’s Complaint. Wilchombe v.
TeeVee

Toons,

Inc.,

555

F.3d

949,

959

(11th

Cir.

2009)

(internal citation omitted) (“A court's review on a motion to

8

dismiss is limited to the four corners of the complaint.”);
see Raber v. Osprey Alaska, Inc., 187 F.R.D. 675, 677 (M.D.
Fla. 1999)(“In deciding a motion to dismiss, the court may
only examine the four corners of the complaint”). Thus,
because the Response – and the accompanying exhibit – is
outside the scope of this Court's review, the Court will not
consider it in making its determination.
“A party qualifies as a debt collector where it operates
a business that has the principal purpose of collecting debts
or regularly attempts to collect debts that are owed to
another.” Goia v. CitiFinancial Auto, 499 F. App’x 930, 938
(11th Cir. 2012). Furthermore, “where a financial company is
‘engaged in the collection of its own debts, as opposed to
the

debts

of

another,’

it

does

‘not

qualify

as

a

debt

collector under the FDCPA.’” Berman v. Wells Fargo Bank, N.A.,
No. 6:12-cv-405-Orl-37KRS, 2013 U.S. Dist. LEXIS 5254, at *2
(M.D. Fla. Jan. 14, 2013)(quoting Goia, 499 F. App’x at 938).
Upon review of the Complaint, the Court finds that Petitt
has failed to adequately allege that Elan is a debt collector
under the FDCPA. Specifically, Petitt does not claim that
Elan operates a business that has the principal purpose of
collecting debts, nor does Petitt allege that Elan regularly
attempts to collect debts that are owed to another. See Goia,

9

499 F. App’x at 938. This Court is not required to accept as
true legal conclusions with no factual support. See Papasan,
478 U.S. at 286.
As

Petitt

has

failed

to

sufficiently

allege

this

fundamental requirement for establishing an FDCPA claim, this
Court will not utilize scarce judicial resources to further
analyze the adequacy of Petitt’s FDCPA claim. Accordingly,
Elan’s Motion as to Count II is granted.
C. Florida Consumer Collection Practices Act
The FCCPA provides that a debtor may bring a civil action
against a person who commits a prohibited act, as set forth
in Florida Statute § 559.72, while collecting consumer debts.
Fla. Stat. § 559.77(1). As Elan suggests, the FCCPA limits
the definition of “debtor” to one obligated or allegedly
obligated to pay a debt. Fla. Stat. § 559.55(2). Similarly,
it limits the definition of “debt” to an obligation or alleged
obligation “to pay money arising out of a transaction.” Fla.
Stat. § 559.55(1).
Elan points out that Petitt does not claim that she is
or was obligated to pay the alleged debt. (Doc. # 9 at 7).
Therefore, Elan contends that Petitt is not a debtor under
the FCCPA and lacks standing to pursue a claim for violations
of the FCCPA. (Id.). Petitt alleges, however, that, “the FCCPA

10

is a carbon copy of the FDCPA and affords a consumer even
greater protection.” (Doc. # 11 at ¶ 18).
Under the FCCPA, a debtor is defined as a natural person
obligated or allegedly obligated to pay a debt. Fla. Stat. §
559.55(2). Upon review of the Complaint, the Court finds that
Petitt fails to allege that she is obligated to pay a debt,
and therefore has insufficiently demonstrated that she has
standing to pursue a claim for violations of the FCCPA. See
Belin v. Litton Loan Servicing, No. 8:06-cv-760-T-24EAJ, 2006
U.S.

Dist.

LEXIS

47953,

at

*7

(M.D.

Fla.

July

14,

2006)(dismissing FCCPA claims and finding that plaintiffs
lacked

standing

as

plaintiffs

failed

to

allege

facts

demonstrating that they are debtors under the FCCPA); Condon
v. Global Credit & Collection Corp., No. 8:10-cv-1526-T-TGW,
2010 U.S. Dist. LEXIS 129343, at *8 (M.D. Fla. Dec. 6,
2010)(finding that “the FCCPA is not actionable because the
plaintiff is not alleged to owe any debt to the defendant”).
Again, as Petitt has failed to allege an essential
element of her FCCPA claim, this Court will not further
analyze the other requirements of her FCCPA claim. Instead,
this Court grants Elan’s Motion to as to Count III.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

11

(1)

Defendant

U.S.

Bank

National

Association

d/b/a

Elan

Financial Services’ Motion to Dismiss (Doc. # 9) is
GRANTED.
(2)

Plaintiff Judith K. Petitt has until and including July
23, 2014, to file an amended complaint.
DONE and ORDERED in Chambers, in Tampa, Florida this 7th

day of July, 2014.

Copies: All Counsel and Parties of Record

12