Weiner v. LVNV Funding, LLC

Filing 26

ORDER granting 23 Motion to Dismiss 18 Amended Complaint; Dismissing without prejudice 18 Amended Complaint; Granting Plaintiff Leave to Amend by 3/14/2015. Signed by Judge Beth Bloom on 3/4/2015. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-CIV-62535-BLOOM/Valle
ERIC WEINER,
Plaintiff,
v.

LVNV FUNDING, LLC,
Defendant.
_________________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came before the Court on Defendant LVNV Funding, LLC’s
(“Defendant”) Motion to Dismiss, ECF No. [23] (the “Motion”) Plaintiff Eric Weiner’s
(“Plaintiff”) Amended Complaint, ECF No. [18]. The Court has carefully reviewed the Motion,
all opposing and supporting filings, and the record in this case, and for the reasons set forth
below, GRANTS the Motion.
Plaintiff filed his Amended Complaint after this Court granted Defendant’s motion to
dismiss his original Complaint, but granted Plaintiff leave to amend. See ECF No. [16] (Order);
Weiner v. LVNV Funding, LLC, 2015 WL 252286 (S.D. Fla. Jan. 20, 2015). As the Court
explained, “[w]hile the notice pleading standard is not burdensome, Plaintiff’s Complaint [was]
so devoid of factual support that it fail[ed] to meet it.” Order at 2. Plaintiff’s Amended
Complaint does not fare much better.
Familiarity with the factual and procedural background, legal principles and law of the
case set forth in the Order is assumed. Plaintiff’s one-count complaint seeks actual and statutory
damages for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.

(“FDCPA”).

Specifically, Plaintiff claims that Defendant violated section 1692e(8), which

provides that “[c]ommunicating or threatening to communicate to any person credit information
which is known or which should be known to be false, including the failure to communicate that
a disputed debt is disputed” constitutes “false, deceptive, or misleading representation or means
in connection with the collection of any debt” in violation of the statute. 15 U.S.C. § 1692e(8).
Plaintiff again alleges that “Plaintiff is alleged to have incurred a financial obligation to
Citibank South Dakota, N.A.” and that “[s]uch financial obligation is a ‘debt’ as defined by 15
U.S.C. §1691a(5).” Am. Compl. ¶ 7. He again alleges that he sent Defendant a “dispute letter”
on May 7, 2014, and that such letter was received by Defendant. Id. ¶¶ 8-9. Plaintiff now
includes one additional factual allegation:
On, or about, June 9, 2014, the Defendant communicated with third parties,
including, but not limited to, Equifax Information Services, Inc., and Experian
Information Solutions, and upon information and belief, provided such third
parties with consumer information via electronic means relating to the Plaintiff,
however, Defendant failed to also communicate the existence and nature of the
dispute contained in the Plaintiff’s May 7, 2014 letter to such third parties.
Am. Compl. ¶ 10.
The Court reemphasizes that a complaint cannot survive based only on “‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original)).
“[T]he factual allegations” in the complaint “must be enough to raise a right to relief above the
speculative level.” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). Furthermore,
“conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as
facts will not prevent dismissal.” Jackson v. BellSouth Telecommunications, 372 F.3d 1250,
1262-63 (11th Cir. 2004) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002)).
2

Plaintiff again asserts, without even the barest minimum of factual enhancement, that he
may have incurred a financial obligation, and offers the legal conclusion (which the Court
affords no weight) that that financial obligation is a “debt” within the meaning of the FDCPA.
The precise nature of Plaintiff’s “debt” may not be necessary to successfully plead a FDCPA
violation. But some factual allegations supporting the existence of a debt are required to raise
the complaint above the merely speculative level. Further, as the Eleventh Circuit explains,
“courts may infer from the factual allegations in the complaint ‘obvious alternative explanations’
which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court
to infer.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting
Iqbal, 556 U.S. at 680). Plaintiff asserts only that “Plaintiff is alleged to have incurred a
financial obligation.” The Court may equally infer that the underlying allegation of debt was
baseless, rendering Plaintiff’s FDCPA claim meritless.
Plaintiff states that he sent Defendant a “dispute letter.”

This amounts to a legal

conclusion that whatever Plaintiff may have communicated to Defendant was information within
the ambit of section 1692e(8) (“that a disputed debt is disputed”). Ironically, Plaintiff alleges
that Defendant “failed to also communicate the existence and nature of the dispute contained in
the Plaintiff’s May 7, 2014 letter to [the] third parties” to whom Defendant allegedly provided
“consumer information via electronic means relating to the Plaintiff.” Am. Compl. ¶ 10. But
Plaintiff, who purportedly sent the May 7, 2014 letter, again provides absolutely no information
about its contents in the Amended Complaint. Again, the allegations Plaintiff provides are
conclusory.

3

As the Court noted, Plaintiff may lack access to all the details of Defendant’s allegedly
improper communications with third parties.

As such, his barebones allegations as to

Defendant’s communications with Equifax and Experian are sufficient. But Plaintiff, if his
allegations have any basis in truth, should have access to information regarding his asserted
“financial obligation” and “dispute letter.” Failing to provide any factual enhancement to those
assertions does not provide the Defendant “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).
In addition, Plaintiff is admonished going forward to strictly adhere to deadlines imposed
by the Court and all applicable rules of procedure. Failure to do so will result in appropriate
sanctions.1
Based on the foregoing, it is ORDERED AND ADJUDGED that:
1.

Defendant’s Motion to Dismiss, ECF No. [23], is GRANTED.

2.

Plaintiff’s Amended Complaint, ECF No. [18], is DISMISSED without
prejudice. Plaintiff is granted leave to amend by or before March 14,
2015.

DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 4th day of
March, 2015.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

1

The Court notes that Defendant has not shown that it was prejudiced by Plaintiff’s two-day-late-filed
Amended Complaint.

4

cc:

counsel of record

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