Smith v. University Community Hospital, Inc.

Filing 30

ORDER granting in part and denying in part 23 motion for judgment on the pleadings. Signed by Magistrate Judge Amanda Arnold Sansone on 1/7/2019. (DMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BEN SMITH,
Plaintiff,
v.

Case No. 8:18-cv-270-T-AAS

UNIVERSITY COMMUNITY
HOSPITAL, INC. d/b/a FLORIDA
HOSPITAL CARROLLWOOD,
Defendant.
____________________________________/
ORDER
University Community Hospital (Community Hospital) moves for judgment on
the pleadings under Federal Rule of Civil Procedure 12(c). (Docs. 23, 24). Ben Smith
opposes Community Hospital’s motion. (Doc. 25). Except for one state law claim, Mr.
Smith failed to plead facts showing he is plausibly entitled to relief. Therefore,
Community Hospital’s motion for judgment on the pleadings is GRANTED-IN
PART and DENIED-IN-PART.
I.

BACKGROUND
Mr. Smith sued Community Hospital alleging violations of the Fair Debt

Collection Practices Act (FDCPA) and the Florida Consumer Collections Practices Act
(FCCPA). (Doc. 1). Mr. Smith’s causes of action arise out of medical treatment he
received from Community Hospital (doing business as Florida Hospital Carrollwood).
(Id. at 2). According to Mr. Smith, Community Hospital violated the FDCPA and
FCCPA when Community Hospital (1) filed and posted a lien on Mr. Smith’s

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outstanding medical bill in Hillsborough County’s public records and (2) sent a
notification letter and copy of the hospital lien to Mr. Smith. (Doc. 1). Community
Hospital denies it violated the FDCPA and FCCPA. (Doc. 10).
At issue here is Community Hospital’s motion for judgment on the pleadings.
(Docs. 23, 24). Community Hospital argues neither the hospital Community Hospital
filed in Hillsborough County’s public records nor the notification letter Community
Hospital sent to Mr. Smith constitute debt collection under the FDCPA or FCCPA.
(Doc. 24).

So, Community Hospital concludes judgment on the pleadings is

appropriate. (Id.).
Mr. Smith argues judgment on the pleadings is inappropriate for three
reasons. (Doc. 25). First, Mr. Smith argues filing a hospital lien constitutes debt
collection under the FDCPA and FCCPA. (Id.). Second, Mr. Smith argues that, even
if filing a hospital lien is not debt collection, Community Hospital still violated Section
1692c(b) of the FDCA and Section 559.72(14) of the FCCPA by disclosing the hospital
lien to third parties when Community Hospital recorded its lien in Hillsborough
County’s public records. (Id.). And, third, Mr. Smith argues Community Hospital
violated Section 1692c of the FDCPA and Section 559.72(18) of the FCCPA when it
sent its notification letter to Mr. Smith despite knowing he was represented by
counsel.

(Id.).

Therefore, Mr. Smith concludes judgment on the pleadings is

inappropriate. (Id.).
II.

LEGAL STANDARD
A party may move for judgment on the pleadings after all parties submit their

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pleadings. Fed. R. Civ. P. 12(c). The standard for deciding motions for judgment on
the pleadings under Rule 12(c) is the same for motions to dismiss under Rule 12(b)(6):
“whether the count stated a claim for relief.” Sun Life Assur. Co. of Can. v. Imperial
Premium Fin., LLC, 904 F.3d 1197, 1207 (11th Cir. 2018) (citations omitted).
A complaint must include enough facts to state a claim for relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A

complaint is facially plausible when the plaintiff pleads facts that allow the court to
draw the reasonable inference that the defendant is liable for the alleged misconduct.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A complaint must
include factual allegations plausibly suggesting—not merely consistent with—the
plaintiff’s entitlement to relief. Imperial Premium, 904 F.3d at 1207 (quotation and
citations omitted).
The court must accept all factual allegations in the complaint as true and view
the facts in the light most favorable to the nonmoving party. Erickson v. Pardus, 551
U.S. 89, 93–94 (2007) (citations omitted); Cunningham v. Dist. Attorney’s Office for
Escambia Cty., 592 F.3d 1237, 1255 (11th Cir. 2010) (citation omitted). Although a
complaint need not contain detailed factual allegations, conclusory allegations are
not entitled to a presumption of truth. Twombly, 550 U.S. at 555, 570 (citations
omitted); Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual
allegations. Iqbal, 556 U.S. at 679. A court may properly dismiss a complaint that
rests on “conclusory allegations, unwarranted factual deductions, or legal co nclusions
masquerading as facts.” Infante v. Bank of Am. Corp., 468 F. App’x 918, 919 (11th

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Cir. 2012) (citation omitted).
Judgment on the pleadings is proper when no issues of material fact exist and
the moving party is entitled to judgment as a matter of law based on the pleadings.
Cunningham, 592 F.3d at 1255 (quotation and citation omitted). Courts are generally
limited to analyzing the pleadings when deciding a motion for judgment on the
pleadings. Horsley v. Feldt, 304 F.3d 1125, 1136 n.6 (11th Cir. 2002) (citations
omitted). That said, courts may consider documents attached to answers when the
documents are central to a claim and the documents’ authenticity is undisputed.
Horsley, 304 F.3d at 1134–35.
The October 10th order pointed out Community Hospital included the two
documents central to Mr. Smith’s claims: the notification letter Florida Hospital
Carrollwood sent Mr. Smith and the “Hospital Claim of Lien” filed with Hillsborough
County. (Doc. 28, 3). The court will consider these documents when analyzing
Community Hospital’s motion for judgment on the pleadings because they are central
to Mr. Smith’s claims and Mr. Smith never disputed the documents’ authenticity.
III.

ANALYSIS
A.

FDCPA Claims

To state a plausible claim under the FDCPA, a plaintiff must allege (1) the
defendant is a debt collector, (2) the defendant’s challenged conduct is related to debt
collection, and (3) the defendant’s actions violate the FDCPA. 15 U.S.C. § 1692; Reese
v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012);
Smith v. ARS Nat’l Serv., Inc., 102 F. Supp. 3d 1276, 1278 (M.D. Fla. 2015) (quotation

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and citation omitted). The court will address whether Mr. Smith sufficiently pleaded
each element of his FDCPA claims in turn.
1.

Whether Community Hospital is a Debt Collector

In relevant part, the FDCPA defines “debt collector” the following way:
any person who uses any instrumentality of interstate commerce or the
mails in any business the primary 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.
15 U.S.C. § 1692a(6). To sufficiently allege the defendant is a debt collector under
the FDCPA, the plaintiff must plead enough facts for the court to infer the defendant
(1) used “an instrumentality of interstate commerce or the mails in operating a
business that has the principal purpose of collecting debts” or (2) “re gularly attempts
to collect debt.” Farquharson v. Citibank, N.A., 664 F. App’x 793, 800 (11th Cir. 2016)
(quoting Section 1692a(6)); Reese, 678 F.3d at 1218.1
Conclusory allegations that the defendant is a debt collector fail to support a
plausible claim for relief under the FDCPA. Farquharson, 664 F. App’x at 800. The
conclusory allegation that the defendant “regularly attempts to collect debts not owed
to it” also fails to support a claim for relief under the FDCPA. Kurtzman v. Nationstar
Mortgage LLC, 709 F. App’x 655, 659 (11th Cir. 2017); Davidson v. Capital One Bank
(USA), N.A., 797 F.3d 1309, 1318 (11th Cir. 2015).
Mr. Smith failed to allege enough facts for the court to reasonably infer
Community Hospital meets the definition of debt collector under the FDCPA. In the

Compare 15 U.S.C. § 1692a(6) (defining debt collector) with 15 U.S.C. § 1692a(4)
(defining creditor as any person “to whom a debt is owed”).
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“Preliminary Statement” section of his complaint, Mr. Smith alleges Community
Hospital “is a debt collector within the meaning of the FDCPA as it was attempting
to collect a debt in a name other than its own, ie. [sic] Patient Financial Services.”
(Doc. 1, p. 3). Then, in his “Allegation as to Parties” section, Mr. Smith alleges
Community Hospital “is a debt collector within the meaning of the FDCPA as
University Community Hospital was attempting to collect a debt in a name other
than its own.” (Doc. 1, p. 4).
Mr. Smith’s allegations are not enough for the court to reasonably infer that
the primary purpose of Community Hospital’s business is to regularly attempt to
collect debt owed to another. Therefore, Mr. Smith failed to sufficiently allege
Community Hospital is a debt collector under the FDCPA.
2.

Whether Conduct is Connected to Debt Collection

The FDCPA prohibits specific actions or omissions committed “in connection
with the collection of any debt.” 15 U.S.C. § 1692; Pinson v. Albertelli Law Partners
LLC, 618 F. App’x 551, 553 (11th Cir. 2015). Courts determine if the defendant’s
challenged conduct legally constitutes an FDCPA violation when deciding if the
plaintiff sufficiently pleaded causes of action under the FDCPA. See, e.g., Dyer v.
Select Portfolio Serv., Inc., 108 F. Supp. 3d 1278, 1280 (M.D. Fla. 2015) (determining
whether the defendant’s communications were connected to debt collection in a Rule
12(b)(6) motion to dismiss); McElveen v. Westport Recovery Corp., 310 F. Supp. 3d
1374, 1380 (S.D. Fla. 2018) (same).
Whether the defendant’s challenged conduct is connected to debt collection

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depends on the section of the FDCPA under which the plaintiff brings his claims. See
LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1201 (11th Cir. 2010) (stating that
the Eleventh Circuit has not adopted the least-sophisticated consumer standard for
all purposes under the FDCPA).
Community Hospital argues Mr. Smith’s complaint fails to state a plausible
claim for relief under the FDCPA (and FCCPA) because filing a hospital lie n is not
“debt collection” under Florida law. (Doc. 24, pp. 3–4). But the case Community
Hospital cites for support addressed hospital liens in the context of the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA)—not the FDCPA or FCCPA.
See Baker v. Baptist Hosp., Inc., 115 So.3d 1123, 1126 (Fla. 1st Dist. Ct. App. 2013)
(holding that filing a hospital lien fails to meet the definition of “trade or commerce”
under the FDUTPA). Further, the purpose of a lien is to create an interest in a
debtor’s property until a debt is paid. Black’s Law Dictionary 1063 (10th ed. 2014);
Shimek v. Weissman, Nowack, Curry & Wilco, P.C., 374 F.3d 1011, 1013–14 (11th
Cir. 2004) (stating that filing a lien is a legally permissible way to secure a debt); see
also Madura v. Lakebridge Condominium Ass’n, Inc., 382 F. App’x 862, 865 (11th Cir.
2010) (discussing how defendant filed a lien because of a debt the plaintiff owed).
Community Hospital’s argument that filing its lien is not debt collection is
unsuccessful because the purpose of filing its lien is to secure a debt. Therefore, the
court will analyze whether Community Hospital’s actions were connected to debt
collection for each section under which Mr. Smith brings his claims.

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i.

FDCPA Claims under 1692e and 1692f

Mr. Smith alleges Community Hospital violated Sections 1692e and 1692f of
the FDCPA. (Doc. 1, p. 6). Section 1692e prohibits a debt collector from using “false,
deceptive, or misleading representation or means in connection with the collection of
any debt.”

Section 1692f prohibits a debt collector from using “unfair or

unconscionable means to collect or attempt to collect any debt.”
If a communication provides information about a debt and the goal of the
communication is partly to induce payment from the debtor, that communication is
connected or related to debt collection. Caceres v. McCalla Raymer, LLC, 755 F.3d
1299, 1302 (11th Cir. 2014) (citation omitted). The least-sophisticated consumer
standard applies in Sections 1692e and 1692f when determining if the defendant’s
communications are connected to debt collection. LeBlanc, 601 F.3d at 1193, 1201.
The least-sophisticated consumer has “a rudimentary amount of information about
the world and a willingness to read a collection notice with some care.” Id. at 1194
(citation omitted).

The least-sophisticated consumer standard has an objective

component that protects against unreasonable interpretations of collection notices
while also protecting naïve consumers. Id. (quotation and citation omitted).
Factors that determine whether a communication is connected or related to
debt collection from the perspective of the least-sophisticated consumer include the
following: whether the document states the amount of debt; whether the document
states how the debt can be paid; whether the document states fees and costs will be
assessed until the debt is paid; whether the document states it is an attempt to collect

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a debt; and whether the document states the sender is acting as a debt collector.
Pinson, 618 F. App’x 553–54 (citations omitted); Farquharson, 664 F. App’x at 801–
02 (citations omitted); Alabama v. Ctrs. for Medicare and Medicaid Servs., 674 F.3d
1241 (11th Cir. 2012).
Neither the notification letter Community Hospital sent Mr. Smith nor the
“Hospital Claim of Lien” Community Hospital filed with Hillsborough County’s public
records (a copy of which Community Hospital sent Mr. Smith) constitute
communications connected or related to debt collection under Sections 1692e or 1692f
of the FDCPA. The notification letter states the “Amount of Charges” for the services
Mr. Smith received at Community Hospital but does not characterize that amount as
a debt. (Doc. 10-1). In fact, after stating the letter notifies Mr. Smith of Community
Hospital’s lien on the services provided, the letter specifically states, “This lien is not
a lien against Ben Smith or any other property or assets of thereof and is not evidence
of the patient’s failure to pay a debt.” (Id.). The letter also states Community
Hospital’s lien “does not represent any action or judgment against Ben Smith and is
limited only to any proceeds arising from the following known auto coverages.” (Id.).
The letter then lists Liberty Mutual as the relevant insurance company. (Id.).
After stating Mr. Smith received services from Community Hospital, the
“Hospital Claim of Lien” includes the following statement:
That Ben Smith is indebted to the University Community Hospital, Inc.,
d/b/a Florida Hospital Carrollwood in the sum of $31,924.66 for such
hospital care, treatment and maintenance and that said sum is now due
and owing Florida Hospital Carrollwood as a reasonable and necessary
charge for such hospital care, treatment and maintenance.

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(Doc. 10-2). The claim then lists Liberty Mutual as the corporation claimed liable for
Mr. Smith’s illness or injuries. (Id.). Before the Community Hospital representative’s
signature and the notarization, the following paragraph is included:
This claim is furnished to and filed with the Clerk of the Circuit Court,
Hillsborough County, Florida, that part owing and belong to Ben Smith
of any recovery of money or sum had or collected or to be collected,
whether by judgment, settlement, settlement agreement of compromise,
to the extent of the aforesaid reasonable and necessary charges of
Florida Hospital for the hospital care, treatment and maintenance of
said Ben Smith, up to the date of such payment and recording hereof
shall constitute notice of such lien to app persons, firms or corporations
who pay any judgment, settlement or compromise to said Ben Smith
arising out of any claim for damages for such illness or injury which the
said Ben Smith has against such person, firms or corporations, their
assignees, agents, or patties [sic] having interest by or through such
persons, firms or corporations.
(Id.). Neither the notification letter nor the “Hospital Claim of Lien” states how Mr.
Smith can pay off Community Hospital’s lien. Neither document states fees or costs
will be assessed until the lien is paid off. Neither document states it is an attempt to
collect a debt. And neither document states the sender is acting as a debt collector.
Although the “Hospital Claim of Lien” states Mr. Smith is “indebted” to Community
Hospital, the least-sophisticated consumer would understand the entire document to
only be a copy of the lien Community Hospital filed with the county—not a demand
for payment.
The least-sophisticated consumer would understand the notification letter and
“Hospital Claim of Lien” Community Hospital sent to Mr. Smith to be informational
and not a communication connected or related to debt collection. Therefore, as a
matter of law, Mr. Smith’s complaint fails to state a claim for relief under Sections

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1692e and 1692f of the FDCPA.
ii.

FDCPA Claim under 1692d

Mr. Smith alleges Community Hospital violated Section 1692d of the FDCPA.
(Doc. 1, p. 5). That section 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.” § 1692d.
An “adapted” version of the least-sophisticated consumer standard applies
when determining if the defendant’s actions are connected to debt collection under
Section 1692d. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985);
LeBlanc, 601 F.3d at 1201 n.33.

In determining whether a communication is

connected to debt collection under 1692d, courts view the communication “from the
perspective of a consumer whose circumstances make him relative ly more susceptible
to harassment, oppression or abuse.” Jeter, 760 F.2d at 1179.
Section 1692d is designed to protect against “coercion and delving into the
personal lives of debtors.”

Id. at 1180, n.12 (citations omitted).

Two letters

threatening a lawsuit against a debtor if he fails to arrange paying off his debt do not
constitute harassment or abuse under Section 1692d. Id. at 1179–80. An oppositional
statement filed with the court disputing a motion to dissolve a writ of garnishment is
also not harassment or abuse under Section 1692d. Miljkovic v. Shafritz and Dinkin,
P.A., 791 F.3d 1291, 1305 (11th Cir. 2015). Instead, for conduct to violate Section
1692d, the conduct must manifest “a tone of intimidation.” Id. (quoting Jeter).
Neither the notification letter or the “Hospital Claim of Lien” manifested a tone

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of intimidation to constitute abuse or harassment under Section 1692d. A consumer
whose circumstances make him relatively more susceptible to harassment or abuse
would understand Community Hospital’s documents to be informational—not
harassing or abusive.

Neither document included statement warning of serious

action if Mr. Smith failed to pay off Community Hospital’s lien. Therefore, as a
matter of law, Mr. Smith’s complaint fails to state a claim for relief under Section
1692d.
iii.

FDCPA Claim under 1692c(b)

Mr. Smith alleges Community Hospital violated Section 1692c(b) of the
FDCPA. (Doc. 1, p. 5). That section states the following:
Except as provided in section 1692b of this title, without the prior
consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as reasonably
necessary to effectuate a postjudgment judicial remedy, a debt collector
may not communicate, in connection with the collection of any debt, with
any person other than the consumer, his attorney, a consumer reporting
agency if otherwise permitted by law, the creditor, the attorney of the
creditor, or the attorney of the debt collector.
§ 1692c(b).2 A complaint must include enough facts for the court to infer illegality
when alleging a violation of Section 1692c(b). Barnes v. Seterus, Inc., No. 13-81021CV, 2013 WL 6834720, at *1 (S.D. Fla. Dec. 26, 2013); Monty v. Weltman Weinberg &
Ross Co., LPA, No. 13-80800-CIV, 2013 WL 6511741, at *2 (S.D. Fla. Dec. 12, 2013).
Courts broadly construe whether a defendant’s action was “in connection with the
collection of any debt” under Section 1692c(b). Dauval v. MRS BPO, LLC, No. 8:11-

Section 1692b is the provision that allows debt collectors to communicate with third
parties to obtain information about a consumer. 15 U.S.C. § 1692b.
2

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CV-2703-T-MAP, 2013 WL 9921550, at *9–10 (M.D. Fla. June 27, 2013) (citing West
v. Nationwide Credit, Inc., 998 F. Supp. 642, 645 (W.D.N.C. 1998).
Mr. Smith’s complaint includes enough facts for the court to infer Community
Hospital’s actions violated Section 1692c(b). In the “Preliminary Statement” section,
Mr. Smith alleges the following:
On or about July 6, 2017, University Community Hospital. d/b/a Florida
Hospital Carrollwood using the name Patient Financial Services caused
to be filed and posted in the public records of Hillsborough County a
Hospital Claim of Lien stating that Ben Smith was indebted to the
defendant University Community Hospital. d/b/a Florida Hospital
Carrollwood.
(Doc. 1, p. 3). Then, in Count I, which lists Community Hospital’s alleged violations
of the FDCPA, Mr. Smith’s complaint states the following:
15 U.S.C. 1692c) (b) which states: Except as provided in section 1692b
of this title, without the prior consent of the consumer given directly to
the debt collector, or the express permission of a court of competent
jurisdiction, or as reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate, in connection
with the collection of any debt, with any person other than the consumer,
his attorney, a consumer reporting agency if otherwise permitted by law,
the credit, the attorney of the creditor, or the attorney of the debt
collector by posing lien on the public records of Hillsborough County
alleging plaintiff owed money University Community Hospital. d/b/a
Florida Hospital Carrollwood for all to see.
(Id. at 5). Mr. Smith’s complaint includes enough facts to infer Community Hospital
communicated with third parties in connection to a debt. Therefore, Mr. Smith’s
complaint has enough facts to show that Community Hospital’s actions were
connected to debt collection under Section 1692c(b).
3.

Prohibited Acts

The third requirement to sufficiently plead violations under the FDCPA is that
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the complaint must show the defendant’s actions violate the relevant FDCPA
provisions. Smith, 102 F. Supp. 3d at 1278 (M.D. Fla. 2015) (quotation and citation
omitted). Mr. Smith’s complaint fails to meet this requirement under Sections 1692e,
1692f, and 1692d, because Community Hospital’s actions, as a matter of law, do not
violate those sections of the FDCPA.
Although Mr. Smith’s complaint has enough facts to show Community
Hospital’s actions were connected or related to debt collection under Section 1692c(b)
(as explained in Section III(A)(2)(iii) of this order), Mr. Smith’s complaint fails to show
Community Hospital acted in a way Section 1692c(b) prohibits.

Mr. Smith’s

complaint has no allegations showing Community Hospital acted without Mr. Smith’s
prior consent. The complaint has no allegations that Community Hospital’s actions
were not “reasonably necessary to effectuate a postjudgment judicial remedy.”
Therefore, even though Community Hospital’s actions may have been connected or
related to debt collection, Mr. Smith failed to sufficiently allege Community
Hospital’s actions are prohibited by Section 1692c(b) of the FDCPA.
4.

Review of Mr. Smith’s FDCPA Claims

Mr. Smith’s complaint fails to state a claim for relief on his claims under
Sections 1692e, 1692f, and 1692d of the FDCPA, because he failed to sufficiently
allege that Community Hospital is a debt collector and Community Hospital’s actions,
as a matter of law, were not connected or related to debt collection.
Mr. Smith’s complaint also fails to sufficiently allege Community Hospital
violates Section 1692c(b) of the FDCPA because he failed to sufficiently allege that

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Community Hospital is a debt collector and he failed to show Community Hospital’s
actions are prohibited by Section 1692c(b). Mr. Smith’s complaint, however, includes
enough facts to allege Community Hospital’s actions are connected or related to debt
collection under Section 1692c(b).
B.

FCCPA Claims

To properly plead FCCPA claims, the plaintiff must allege knowledge or intent
by the alleged debt collector. Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291,
1309 (S.D. Fla. 2009) (quotation and citation omitted). When applying the FCCPA,
courts must give “due consideration and great weight” to interpretations of the
FDCPA from the Federal Trade Commission and federal courts.

Fla. Stat. §

559.77(5). The FDCPA definition of debt collection applies when evaluating claims
brought under the FCCPA, which has no definition for debt collection. Trent v. Mortg.
Elec. Registration Sys., Inc., 618 F. Supp. 2d 1356, 1361 (M.D. Fla. 2007), aff’d 288 F.
App’x 571 (11th Cir. 2008).
Conclusory allegations that simply track the statutory language from the
FCCPA are insufficient. In re Lamb, 409 B.R. 534, 541 (N.D. Fla. 2009) (citations
omitted); Munch v. Credit Protection Ass’n, LP, No. 8:13-CV-1179-T-17EAJ, 2015 WL
1243201, at *2–3 (M.D. Fla. Mar. 18, 2015) (citations omitted); Locke v. Wells Fargo
Home Mortg., No. 10-60286-CIV, 2010 WL 4941456, at *2–3 (S.D. Fla. Nov. 30, 2010)
(citations omitted). The complaint must instead include basic facts to support the
complaint’s allegations.

Nardolilli

v. Bank of

Am.,

No. 12-81312-CIV-

MIDDLEBROOKS/BRANNON, 2013 WL 12154541, at *3 (S.D. Fla. Dec. 5, 2013)

15

(citations omitted).
Mr. Smith alleges Community Hospital violated Sections 559.72(3), 559.72(5),
559.72(6), 559.72(7), 559.72(9). 559.72(14), and 559.72(18) of the FCCPA. (Doc. 1).
The court will analyze whether Mr. Smith’s complaint plausibly alleges claims for
relief under each section of the FCCPA.
1.

Claim under Section 559.72(3) of the FCCPA

Section 559.72(3) states that a person must not do the following:
(3) Tell a debtor who disputes a consumer debt that he or she or any
person employing her or him will disclose to another, orally or in writing,
directly or indirectly, information affecting the debtor’s reputation for
credit worthiness without also informing the debtor that the existence
of the dispute will also be disclosed as required by subsection (6).
Fla. Stat. § 559.72(3). Mr. Smith’s complaint alleges no facts showing Community
Hospital told Mr. Smith that it would tell others about Community Hospital’s lien on
Mr. Smith’s outstanding medical bill. Therefore, Mr. Smith failed to state a plausible
claim for relief under Section 559.72(3) of the FCCPA.
2.

Claim under Section 559.72(5) of the FCCPA

Section 559.72(5) states that a person must not do the following:
(5) Disclose to a person other than the debtor or her or his family
information affecting the debtor’s reputation, whether or not for credit
worthiness, with knowledge or reason to know that the other person
does not have a legitimate business need for the information or that the
information is false.
Fla. Stat. § 559.72(5). Mr. Smith’s complaint alleges Community Hospital “filed and
posted in the public records of Hillsborough County” its lien on Mr. Smith’s medical
bill. (Doc. 1, p. 3). But his complaint alleges no facts showing Community Hospital

16

knew others had no legitimate business need for that information. Therefore, Mr.
Smith’s complaint fails to state a plausible claim for relief under Section 559.72(5) of
the FCCPA.
3.

Claim under Section 559.72(6) of the FCCPA

Section 559.72(6) states that a person must not do the following:
(6) Disclose information concerning the existence of a debt known to be
reasonably disputed by the debtor without disclosing that fact. If a
disclosure is made before such dispute has been asserted and written
notice is received from the debtor that any part of the debt is disputed,
and if such dispute is reasonable, the person who made the original
disclosure must reveal upon the request of the debtor within 30 days the
details of the dispute to each person to whom disclosure of the debt
without notice of the dispute was made within the preceding 90 days.
Fla. Stat. § 559.72(6). Mr. Smith’s complaint fails to allege facts showing Community
Hospital disclosed information about its lien on Mr. Smith’s medical bill knowing Mr.
Smith reasonably disputed the lien.

Nor does Mr. Smith’s complaint allege

Community Hospital failed to disclose the fact that Mr. Smith disputed Community
Hospital’s lien. Therefore, Mr. Smith’s complaint fails to allege a plausible claim for
relief under Section 559.72(6) of the FCCPA.
4.

Claim under Section 559.72(7) of the FCCPA

Section 559.72(7) states that a person must not do the following:
(7) Willfully communicate with the debtor or any member of her or his
family with such frequency as can reasonably be expected to harass the
debtor or her or his family, or willfully engage in other conduct which
can be reasonably be expected to abuse or harass the debtor or any
member of her or his family.
Fla. Stat. § 559.72(7). Mr. Smith’s complaint contains no facts showing Community
Hospital communicated with him or his family “with such frequency as can
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reasonably be expected to harass” Mr. Smith or his family. A complaint alleging a
violation under Section 559.72(7) must include enough facts to “satisfy the purpose
and frequency elements of a statutory claim under the FCCPA.” Locke, 2010 WL
4941456, at *2; see also Munch, 2015 WL 1243201, *2 (finding conclusory allegations
insufficient to state a claim under Section 559.72(7)).
Besides the notification letter and “Hospital Claim of Lien” Community
Hospital sent Mr. Smith, Mr. Smith’s complaint contains no other facts showing
Community Hospital communicated with him about its lien. Therefore, his complaint
fails to state a plausible claim for relief under Section 559.72(7) of the FCCPA.
5.

Claim under Section 559.72(9) of the FCCPA

Section 559.72(9) states that a person must not do the following:
(9) Claim, 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.
Fla. Stat. § 559.72(9). Mr. Smith’s complaint contains no facts showing Community
Hospital knew its lien on Mr. Smith’s medical bills is not legitimate. Conclusory
allegations that track statutory language are insufficient to state a claim under
Section 559.72(9). Munch, 2015 WL 1243201, at *3. Mr. Smith’s complaint simply
claims Community Hospital violated Section 559.72(9) and tracks that statute’s
language. So, his complaint fails to state a claim for relief under Section 559.72(9).
6.

Claim under Section 559.72(14) of the FCCPA

Section 559.72(14) states that a person must not do the following:
(14) Publish or post, threaten to publish or post, or cause to be published
or posted before the general public individual names or any list of names
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of debtors, commonly known as a deadbeat list, for the purpose of
enforcing or attempting to enforce collection of consumer debts.
Fla. Stat. § 559.72(14). Mr. Smith’s complaint alleges Community Hospital “filed and
posted in the public records of Hillsborough County” a copy of its lien on Mr. Smith’s
medical bill. (Doc. 1, p. 3).3 These allegations state a plausible claim for relief under
Section 559.72(14) of the FCCPA.
7.

Claim Under Section 559.72(18) of the FCCPA

Section 559.72(18) states that a person must not do the following:
(18) Communicate with a debtor if the person knows that the debtor is
represented by an attorney with respect to such debt and has knowledge
of, or can readily ascertain, such attorney’s name and address, unless
the debtor’s attorney fails to respond within 30 days to a communication
from the person, unless the debtor’s attorney consents to a direct
communication with the debtor, or unless the debtor initiates the
communication.
Fla. Stat. § 559.72(18). Mr. Smith’s complaint alleges Community Hospital sent him
the notification and “Hospital Claim of Lien” despite knowing he was represented by
counsel. (Doc. 1, p. 3). But this type of conclusory language is not entitled to a
presumption of truth. See Nardolilli, 2013 WL 12154541, at *4 (dismissing claims
under FCCPA, including Section 559.72(18), because the claims simply tracked the
FCCPA’s statutory language). Mr. Smith’s complaint includes no basic facts showing
Community Hospital knew he was represented by counsel. Therefore, Mr. Smith’s

Although Section 28-142 of Hillsborough County’s Code of Ordinances allows
hospitals to file and post liens for medical bills, Community Hospital cites no state
law that allows hospitals to file and post liens for medical bills. See also Shimek, 374
F.3d at 1012 (holding that the FDCPA allows debt collectors to contemporaneously
file a lien and send a demand letter to debtor “so long as the initial filing of that lien
is permitted by state law”) (emphasis added).
3

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complaint fails to state a claim under Section 559.72(18) of the complaint.
8.

Review of Mr. Smith’s FCCPA Claims

Mr. Smith’s complaint fails to allege plausible claims for relief under Sections
559.72(3), 559.72(5), 559.72(6), 559.72(7), 559.72(9), and 559.72(18) of the FCCPA.
But Mr. Smith’s complaint sufficiently alleges Community Hospital violated Section
559.72(14) of the FCCPA.
9.

Supplemental Jurisdiction over Mr. Smith’s FCCPA Claims

A district court may decline to exercise supplemental jurisdiction over state
law claims if the court dismisses all claims over which it has original jurisdiction. 28
U.S.C. § 1367(c); Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1352–53
(11th Cir. 1997) (stating that state law claims are best resolved by state court s when
the district court dismisses all federal law claims before trial) (citations omitted).
When determining whether to exercise supplemental jurisdiction under Section 1367,
the district court considers judicial economy, convenience, fairness, and comity.
Baggett, 117 F.3d at 1353 (citations omitted). The decision to exercise supplemental
jurisdiction is within the court’s discretion. Raney v. Allstate Ins. Co., 370 F.3d 1086,
1088–89 (11th Cir. 2004) (citation omitted).
Mr. Smith’s complaint currently fails to state a cause of action under federal
law, namely the FDCPA. The only claim sufficiently pleaded at this time is Mr.
Smith’s claim under Section 559.72(14) of the FCCPA. The court will allow Mr. Smith
to amend his complaint. If he fails to amend, or if his amended complaint fails to
state a cause of action under federal law, the court will decline to exercise jurisdiction

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over his FCCPA claim.
IV.

CONCLUSION
Mr. Smith failed to allege a plausible claim for relief under Sections 1692e,

1692f, and 1692d of the FDCPA because he failed to show Community Hospital is a
debt collector. Further, Community Hospital’s actions, as a matter of law, were not
connected or related to debt collection under Sections 1692e, 1692f, and 1692d .
Mr. Smith failed to state a claim for relief under Section 1692c(b) of the FDCPA
because he failed to show Community Hospital is a debt collector and that
Community Hospital’s actions are prohibited by Section 1692c(b). But Mr. Smith
pleaded enough facts to show Community Hospital actions were connected or related
to debt collection under Section 1692c(b) of the FDCPA.
Mr. Smith failed to allege a plausible claim for relief under Sections 559.72(3),
559.72(5), 559.72(6), 559.72(7), 559.72(9), and 559.72(18) of the FCCPA. But he
pleaded enough facts to show a plausible claim for relief under Section 559.72(12) of
the FCCPA. Therefore, Community Hospital’s motion for judgment on the pleadings
(Docs. 23, 24) is GRANTED-IN-PART and DENIED-IN-PART as follows:
1.

Community Hospital’s motion for judgment on the pleadings is
GRANTED with respect to Mr. Smith’s claims brought under Sections
1692e, 1692f, and 1692d of the FDCPA. Those claims are DISMISSED.

2.

Community Hospital’s motion for judgment on the pleadings is
GRANTED with respect to Mr. Smith’s claim brought under Section
1692c(b) of the FDCPA. To proceed on his Section 1692c(b) claim, Mr.

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Smith’s amended complaint must allege a plausible claim for relief
consistent with this order.
3.

Community Hospital’s motion for judgment on the pleadings is
GRANTED with respect to Mr. Smith’s claims under Sections
559.72(5), 559.72(6), 559.72(7), 559.72(9), and 559.72(18) of the FCCPA.

4.

Community Hospital’s motion for judgment on the pleadings is
DENIED with respect to Mr. Smith’s claim under Section 559.72(12) of
the FCCPA.

5.

Consistent with paragraphs 2 and 4, Mr. Smith may submit an amended
complaint. If he chooses to amend his complaint, Mr. Smith must
submit his amended complaint by January 31, 2019. Failure to submit
an amended complaint by January 31st will result in the court entering
a judgment consistent with this order and declining to exercise
jurisdiction over the one remaining state law claim.

ORDERED in Tampa, Florida, on January 7, 2019.

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