Adams v. Green Tree Servicing, LLC

Filing 13

ORDER granting in part and denying in part 6 --motion to dismiss; striking the plaintiff's request for statutory damages; dismissing Counts II-IV and VI-IX; amened complaint due 3/2/2015. Signed by Judge Steven D. Merryday on 2/18/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROBERT A. ADAMS,
Plaintiff,
v.

CASE NO. 8:14-cv-2898-T-23AEP

GREEN TREE SERVICING, LLC,
Defendant.
____________________________________/

ORDER
The defendant moves (Doc. 6) to dismiss Counts II, IV, and VI–IX and moves
to strike the pro se plaintiff’s demand for attorney’s fees. Also, the defendant moves
“to dismiss Count III . . . to the extent it demands damages above $2,000.” (Doc. 6
at 1) Prompted by an order (Doc. 9), the plaintiff responds (Doc. 11) to the
defendant’s motion to dismiss.
1. Local Rule 3.01(g)
The plaintiff’s response argues that the “Defendant through their counsel
failed to confer with the Plaintiff prior to filing Defendant’s Motion to Dismiss and to
Strike Demand for Attorneys’ Fees.” (Doc. 11 at 3) Local Rule 3.01(g) requires a
“moving party [to] confer with counsel for the opposing party in a good faith effort to
resolve the issues raised by the motion.” However, the rule excludes from the

requirement a motion “to dismiss for failure to state a claim.” Because the defendant
moves to dismiss, Local Rule 3.01(g) requires no conference with the plaintiff.
2. Count II
Count II alleges that the “Defendant has demonstrated willful or knowing
non-compliance” with 47 U.S.C. § 227(c)(5), Telephone Consumer Protection Act.1
“A [Telephone Consumer Protection Act] claimant must allege that a defendant
initiated a call using an [automatic telephone dialing system] . . . .” Buslepp v. B & B
Entm’t, LLC, 2012 WL 1571410, at *1 (S.D. Fla. May 3, 2012) (Cohn, J.).
The defendant argues that the “Plaintiff does not allege that Defendant used
an [automatic telephone dialing system].” (Doc. 6 at 3) Neither the fact section in
1

Count II purports to allege a claim under Section 227(b)(2)(5). (Doc. 2 at 5) The motion to
dismiss asserts that Count II alleges a claim under Section 227(b)(5). (Doc. 6 at 3) The response
asserts that Count II alleges a claim under Section 227(b)(5). (Doc. 11 at 3) Neither
Section 227(b)(2)(5) nor Section 227(b)(5) exists. However, both Count II and the motion to dismiss
mention a “12-month period.” Section 227 mentions a “12-month period” only in Section 227(c)(5).
This order assumes that Count II alleges, and the defendant moves to dismiss, a claim under
Section 227(c)(5).
Section 227(c)(5) states:
A person who has received more than one telephone call within any 12-month
period by or on behalf of the same entity in violation of the regulations
prescribed under this subsection may, if otherwise permitted by the laws or
rules of court of a State bring in an appropriate court of that State—
(A) an action based on a violation of the regulations prescribed under
this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation,
or to receive up to $500 in damages for each such violation, whichever
is greater, or
(C) both such actions.

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the complaint nor Count II alleges the defendant’s use of an automatic telephone
dialing system. But Count I states, “Defendant . . . us[ed] or [had] the capacity [to
use] an automatic telephone dialing system to call Plaintiff’s cell phone.” (Doc. 2
at 4) This “factual allegation . . . plausibly suggest[s] an entitlement to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); see also Buslepp, 2012 WL 1571410, at *1
(“[T]he allegation that Defendant used [an automatic telephone dialing system] (or
one that has the capacity to store or produce telephone numbers to be called and to
dial those numbers) is a factual allegation under [Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007),] and Iqbal.”). In the present context, Count II suffices. See Moore’s
Federal Practice, Vol. 2, § 8.04[7] (3d ed. 2014) (“Pro se pleadings are construed more
liberally than are pleadings drafted by lawyers.”).
3. Count III
Count III alleges that the defendant violated Section 559.72(9), Florida
Statutes, which states, “In collecting consumer debts, no person shall . . . [c]laim,
attempt, or threaten to enforce a debt when such person knows that the debt is not
legitimate, or assert the existence of some other legal right when such person knows
that the right does not exist.” The complaint (Doc. 2 at 8) demands “statutory
damages of $2000.00 . . . pursuant to” Section 559.77(2), which states, “Any person
who fails to comply with any provision of s. 559.72 is liable for actual damages and

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for additional statutory damages as the court may allow, but not exceeding $1,000,
together with court costs and reasonable attorney’s fees incurred by the plaintiff.”
The defendant correctly argues, “For multiple violations of [Section 559.72],
courts cap the statutory award at $1,000.” (Doc. 6 at 7) Section 559.77(2)
“authorizes a statutory award of $1,000 per plaintiff in a class action — not per
violation.” Tacoronte v. Tate & Kirlin Assocs., 2013 WL 5970720, at *2 (M.D. Fla.
Nov. 8, 2013) (Dalton, J.).
4. Count IV
Count IV alleges that the defendant violated 15 U.S.C. § 1692d(5), which
states:
A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in
connection with the collection of a debt. Without limiting the general
application of the foregoing, the following conduct is a violation of this
section:
....
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent
to annoy, abuse, or harass any person at the called number.

Count IV further alleges, “On or about 6-March-2014 at about 5:27 pm and 2-April2014 at about 12:54 pm Defendant called the Plaintiff’s cell phone without prior
permission or for emergency purposes.” (Doc. 2 at 3) The defendant argues that
Count IV “alleges nothing about the calls to suggest they were particularly annoying,
abusive, or harassing.” (Doc. 6 at 4)
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“In determining liability under [Section 1692d(5)], courts have held that
‘[w]hether there is actionable harassment or annoyance turns not only on the volume
of calls made, but also on the pattern of calls.’” Waite v. Fin. Recovery Servs., Inc.,
2010 WL 5209350, at *2 (M.D. Fla. Dec. 16, 2010) (Covington, J.) (quoting Joseph v.
J.J. Mac Intyre Cos., L.L.C., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002) (Chen, J.)).
Count IV alleges that the defendant called the plaintiff two times, nearly a month
apart. Neither the “volume of calls” nor the “pattern of calls” suggests an
“actionable harassment or annoyance.” Even if the complaint’s factual allegations
are true, the complaint fails to “plausibly suggest an entitlement to relief.” Iqbal,
556 U.S. at 681.
5. Counts VI
Count VI alleges, “Defendant violated § 1692e(11) by failing to disclose in the
initial communication that the debt collector is attempting to collect a debt and that
any information obtained will be used for that purpose.” (Doc. 2 at 7) The
defendant correctly argues, “Plaintiff does not allege when the initial communication
took place or if it was written or oral.” (Doc. 6 at 5) More importantly, Count VI
violates Rule 8(a)(2), which demands that a complaint allege “more than labels and
conclusions, and a formulaic recitation of a cause of action’s elements will not do.”
Twombly, 550 U.S. at 545. Without citing any fact, Count VI recites almost verbatim
Section 1692e(11), which prohibits a debt collector from “fail[ing] to disclose in the
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initial . . . communication . . . that the debt collector is attempting to collect a debt
and that any information obtained will be used for that purpose.”
6. Counts VII–IX
Like Count VI, Counts VII–XI each lack factual support and recite almost
verbatim the statute under which the count is alleged. Count VII alleges, “Defendant
violated [15 U.S.C. § 1692e(14)] by using a business, company or organization name
other than the true name of the debt collector’s business, company, or organization.”
(Doc. 2 at 7) Section 1692e(14) forbids “[t]he use of any business, company, or
organization name other than the true name of the debt collector’s business,
company, or organization.”
Count VIII alleges, “Defendant violated [15 U.S.C. § 1692f(1)] by attempting
to collect an amount that is not expressly authorized by the agreement creating the
debt.” (Doc. 2 at 8) Section 1692f(1) forbids “[t]he collection of any amount
(including any interest, fee, charge, or expense incidental to the principal obligation)
unless such amount is expressly authorized by the agreement creating the debt or
permitted by law.”
Finally, Count IX alleges, “Defendant violated [15 U.S.C. § 1692g] by failing
to provide the consumer a 30 day validation notice after the initial communication
with a consumer.” (Doc. 2 at 8) Section 1692g states:
Within five days after the initial communication with a consumer in
connection with the collection of any debt, a debt collector shall . . .

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send the consumer a written notice containing . . . a statement that
unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector . . . .2

(footnote added).
7. Attorney’s Fee
The complaint requests “fees and costs pursuant to Section 559.72(2).”
(Doc. 2 at 8) The defendant moves to strike the demand for fees “because a pro se
litigant . . . cannot recover attorney’s fees.” (Doc. 6 at 7) The plaintiff responds,
“Although the Plaintiff is proceeding pro se, the Plaintiff is not prohibited from
obtaining an attorney in the future.” (Doc. 11 at 5)
“[A] pro se litigant who is not a lawyer is not entitled to attorney’s fees.” Kay v.
Ehrler, 499 U.S. 432, 435 (1991); but see Moore’s, Vol. 10, § 54.173[1][a] (“The
principles set forth in Kay apply only in statutory fee cases.”). The possibility
remains that the plaintiff will obtain counsel later in this action. Thus, the
defendant’s argument is premature.

2

In defense of Count IX, the plaintiff states, “The significant fact that needs to be alleged is
that no 30 day validation notice was provided within 5 days[,] . . . and [d]iscovery will cure the
question.” (Doc. 11 at 4) As described above, a generic recitation of the statute is insufficient.
Further, the plaintiff may not rely on future discovery to withstand dismissal. Twombly, 550 U.S.
at 546 (“It is no answer to say that a claim just shy of plausible entitlement can be weeded out early
in the discovery process . . . .”); Moore’s, Vol. 6, § 26.02 (“[T]he discovery rules allow ultimate
resolution of disputed issues to be based on full and accurate understanding of true facts. . . . [T]he
ability to sue now and discover later the basis of the claim is undesirable, at least in its extreme
form.”).

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CONCLUSION
“Although the pleadings of pro se plaintiffs are held to less stringent standards,
even pro se complaints will eventually be dismissed for Rule 8 inadequacies if the
claimants fail to state a claim for relief after being afforded opportunities to amend.”
Moore’s, Vol. 2, § 8.04[7]. The defendant’s motion (Doc. 6) is GRANTED IN
PART. Under Section 559.77(2), the plaintiff’s request (Doc. 2 at 8) for $2,000 in
statutory damages is STRICKEN. The request for statutory damages under
Section 559.77(2) must not exceed $1,000. Further, Counts II–IV and VI–IX are
DISMISSED. No later than MARCH 2, 2015, the plaintiff may amend the
complaint only to correct the errors identified in this order. For each claim, the
amended complaint must (1) allege facts that “plausibly suggest an entitlement to
relief,” (2) avoid a mere “formulaic recitation of a cause of action’s elements,” and
(3) request only permissible damages. Iqbal, 556 U.S. at 681, 698.
ORDERED in Tampa, Florida, on February 18, 2015.

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