Witchard v. Allied Interstate, LLC
Filing
29
ORDER denying 27 Motion to Dismiss. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 11/6/2015. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROSETTA WITCHARD,
Plaintiff,
v.
Case No. 8:15-cv-1109-T-33MAP
ALLIED INTERSTATE, LLC,
Defendant.
______________________________/
ORDER
This cause is before the Court pursuant to Defendant
Allied
Interstate,
LLC’s
Motion
to
Dismiss
Claim
Under
Telephone Consumer Protection Action Contained in Plaintiff’s
Second Amended Complaint (Doc. # 27), filed on October 13,
2015.
Plaintiff
Rosetta
Witchard
filed
a
Response
in
Opposition to the Motion on October 16, 2015. (Doc. # 28).
The Court denies the Motion for the reasons that follow.
I.
Background
Witchard is a Pinellas County, Florida consumer and
Medicaid recipient. (Doc. # 26 at ¶¶ 1, 6).
She indicates
that, after she issued cease and desist instructions, Allied,
“a self described ‘debt collector,’” continued to contact her
regarding a disputed debt. (Id. at ¶¶ 3, 8).
Witchard
contends that Allied “has no factual basis to allege a
consumer debt against Plaintiff” and that Allied “was not
entitled to contact Plaintiff after having been notified that
Plaintiff did not want Defendant to contact Plaintiff again.”
(Id. at ¶¶ 32-33).
“Defendant
used
More specifically, Witchard alleges that
automated
telephone
dialing
systems
(as
defined by the Telephone Consumer Protection Act) to contact
Plaintiff via her cell phone, even after Plaintiff revoked
consent from Defendant, Defendant continued to make calls to
Plaintiff’s cell phone.” (Id. at ¶ 39).
Witchard accordingly filed this action against Allied on
May 7, 2015, and filed the operative Second Amended Complaint
on October 6, 2015, containing the following four counts: (1)
violation of Section (g) of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692(g)(FDCPA); (2) violation of Section (d)
of the FDCPA; (3) violation of the Florida Consumer Collection
Practices Act, Fla. Stat. § 559.72 (FCCPA); and (4) violation
of the Telephone Consumer Protection Act, 47 U.S.C. § 227
(TCPA).
At this juncture, Allied seeks dismissal of the TCPA
claim asserted in Count Four.
(Doc. # 27).
The Motion is
ripe for the Court’s review. (Doc. # 28).
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).
Further,
this Court favors the plaintiff with all 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, the Supreme Court explains that:
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).
In addition, 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
Allied has filed a Motion to Dismiss pursuant to Rule
12(b)(6); however, it has not limited its discussion to the
four corners of Witchard’s operative complaint.
3
Instead,
Allied has asserted a host of its own factual contentions
(regarding the date the alleged debt was incurred, the amount
of the alleged debt, the nature of the alleged debt, and the
number of times Allied attempted to contact Witchard).
In
addition, Allied has tendered evidence to the Court bearing on
whether Witchard gave Bayfront Medical Center and its debt
collectors (including Allied) consent to place calls to her
cellular phone.
Allied has not suggested any basis for allowing this
Court to consider these extrinsic matters at the Rule 12(b)(6)
stage, and the Court declines to consider the tendered consent
form.
The Court specifically notes Witchard’s objection to
the form as “a hearsay document” that “does noting to rebut
the fact that Plaintiff has alleged that she revoked consent
and that the ATDA calls continued to be placed to her cell
phone . . . without her consent.” (Doc. # 28 at 3-4).
At this
procedural juncture, the Court confines its review to the four
corners of the operative complaint.
In addition, at this
time, the Court declines to convert the motion to dismiss into
a motion for summary judgment. Harper v. Lawrence Cty., 592
F.3d 1227, 1232 (11th Cir. 2010)(“A judge need not convert a
motion to dismiss into a motion for summary judgment as long
as
he
or
she
does
not
consider
4
matters
outside
the
pleadings.”).
Upon due consideration of the well-pleaded allegations of
Witchard’s Second Amended Complaint, which the Court must
accept as true at this point in the proceedings, the Court
determines that it is appropriate to deny Allied’s Motion to
Dismiss.
In the Court’s view, Count Four of the Second
Amended Complaint is more than sufficient to raise a right to
relief above the speculative level and to state a plausible
claim for a violation of the TCPA.
As correctly recited by
Allied, a TCPA claim is comprised of the following elements:
“(1) a call was made to a cell or wireless phone, (2) by the
use of an automatic dialing system or an artificial or
prerecorded voice, and (3) without prior express consent of
the called party.” Augustin v. Santander Consumer USA, Inc.,
43 F. Supp. 3d 1251, 1253 (M.D. Fla. 2012)(citing 47 U.S.C. §
227(a)(1)).
Witchard alleges that Allied: “used automated telephone
dialing
systems
(as
defined
by
the
Telephone
Consumer
Protection Act) to contact Plaintiff via her cell phone, even
after Plaintiff revoked consent from Defendant, Defendant
continued to make calls to Plaintiff’s cell phone.” (Doc. # 26
at ¶ 39).
Witchard also specifies that Allied “contacted
Plaintiff by way of automated telephone dialing system and or
5
predictive dialer phone calls to Plaintiff’s cell phone on at
least October 14, 2014, October 16, 2014, October 17, 2014,
October 20, 2014, and October 21, 2014, without express
consent and without providing Plaintiff with a validation
letter as required by the Fair Debt Collection Practices Act.”
(Id. at ¶ 58.).
These allegations, taken as true for the
purpose of addressing the Rule 12(b)(6) Motion to Dismiss, are
sufficient to survive Allied’s Motion.
The Motion to Dismiss
is accordingly denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Allied Interstate, LLC’s Motion to Dismiss
Claim Under Telephone Consumer Protection Action Contained in
Plaintiff’s Second Amended Complaint (Doc. # 27) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 6th
day of November, 2015.
Copies: All Counsel of Record
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?