Estrella v. LTD Financial Services, LP

Filing 8

ORDER granting 3 Motion to Dismiss for Failure to State a Claim. Signed by Judge James D. Whittemore on 11/19/2014. (KE)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS ESTRELLA,
Plaintiff,

v.

Case No: 8:14-cv-2624-T-27AEP

LTD FINANCIAL SERVICES, LP,
Defendant.

ORDER
BEFORE THE COURT is Defendant's Motion to Dismiss (Dkt. 3) and Plaintiff's response
(Dkt. 5). Upon consideration, the Motion is GRANTED with leave to amend.
Plaintiff brings this action for violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227 ("TCPA") and the Florida Consumer Collections Practices Act, Fla. Stat. § 559. 72(18)
("FCCPA"). The crux of Plaintiff's claims are that Defendant claimed Plaintiff owed it a debt, and
despite Plaintiff disputing the debt and advising Defendant to contact his lawyer instead of him,
Defendant continued to call Plaintiff's cell phone, using an automated dialer. Defendant moves to
dismiss the Complaint for four reasons: (1) Plaintiff does not plead his TCPA and FCCPA claims
in separate counts; (2) Plaintiff's use of the phrase "including but not limited to" is vague and
ambiguous; (3) the Complaint does not allege that the calls were placed through an "automated
telephone dialing system" or "ATDS" as required to state a claim under the TCPA; and (4) the
Complaint does not allege facts to support the allegation that an ATDS was used.

1

Federal Rule of Civil Procedure ("Rule") 8(a)(2) requires "only a short and plain statement
of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice
of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (internal quotations omitted). Rule IO(b)
states that "[i]f doing so would promote clarity, each claim founded on a separate transaction or
occurrence ... must be stated in a separate count." Fed. R. Civ. P. IO(b).
Plaintiff's Complaint is not separated into counts. Although it is apparent that Plaintiff
intends to assert claims under the TCPA and FCCPA, pleading each claim in a separate count would
promote clarity. See Anderson v. District Board ofTrustees ofCentral Florida Community College,
77 F.3d 364, 366 (11th Cir. 1996). It is also apparent that Plaintiff alleges that Defendant used an
automated telephone dialer system by his use of the term "automated dialer." The Federal
Communications Commission has used a similar term, "autodialer." See In the Matter ofRules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Red. 559, 565 (2008).

And Plaintiffs allegation that Defendant used an automated dialer gives Defendant fair notice that
his claims rest on calls Defendant made to Plaintiffs cell phone using an ADTS, rather than an
artificial or prerecorded message. See 47 U.S.C. 227(b)(l)(A)(iii).
Finally, Plaintiff does not address Defendant's argument that use of the phrase "including but
not limited to" suggests Plaintiff may contemplate additional claims. However, it does appear from
Plaintiffs response that his claims are limited to those brought under the TCPA and subsection 18
of the FCCPA. Although this language may be harmless surplusage, because he makes no argument
that it is necessary to the Complaint, it should be eliminated in the amended complaint.
Accordingly,

2

Defendant's Motion to Dismiss (Dkt. 3) is GRANTED. Plaintiffs Complaint (Dkt. 2) is
DISMISSED without prejudice. Plaintriff is granted leave to file an amended complaint within
ten (10) days consistent with this order.
DONE AND ORDERED this

{Cf~ of November, 2014.

Copies to: Counsel of Record

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