Jimenez v. Med 1 02 Texas Med Clinic

Filing 40

ORDER granting in part and denying in part 35 Motion to Dismiss for Failure to State a Claim. Count III is DISMISSED without prejudice. Amended Complaint due by 2/13/2017. Signed by Judge Beth Bloom on 2/1/2017. (pes)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-61094-BLOOM/Valle
NATHALIE JIMENEZ,
Plaintiff,
v.
ACCOUNT SERVICES,
Defendant.
__________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court on Defendant Account Services’ (“Defendant”)
Motion to Dismiss, ECF No. [35] (the “Motion”), Plaintiff Nathalie Jimenez’s (“Plaintiff”)
Second Amended Complaint, ECF No. [27]. Plaintiff timely filed a Response, ECF No. [36], and
Defendant timely filed a reply, ECF No. [37]. For the reasons set forth below, Defendant’s
Motion is granted in part and denied in part.
I. BACKGROUND
The Court set forth the facts of this case in its prior Order, ECF No. [26], granting in part
and denying in part Defendant’s first Motion to Dismiss, ECF No. [12]. Given their pertinence to
the Court’s instant analysis, those facts bear repeating.
Like Plaintiff’s First Amended Complaint, ECF No. [23], Plaintiff’s Second Amended
Complaint alleges that Plaintiff ordered credit reports from three Credit Reporting Agencies
(“CRAs”) on or about January 14, 2016, and that each credit report revealed that Defendant,
with whom Plaintiff had no prior relationship, had reported negative information against her –
namely, a debt in the amount of $123.45. ECF No. [27] at ¶ 10. On January 19, 2016, Plaintiff
sent a “debt validation letter” to the entity to which the debt was purportedly owed – Texas

Case No. 16-cv-61094-BLOOM/Valle
MedClinic – and “dispute letters” to each of the CRAs from which she had received a credit
report. 1 Id. at ¶¶ 11-12 (citing ECF No. [10] at Exhs. A-B). 2 Plaintiff sent dispute letters to each
of the CRAs a second time on April 5, 2016. Id. at ¶ 13 (citing ECF No. [10] at Exh. C).
On April 12, 2016, Plaintiff sent a second debt validation letter to Texas MedClinic. Id.
at ¶ 14 (citing ECF No. [10] at Exh. D). On April 25, 2016, Plaintiff received a letter from
Defendant bearing Plaintiff’s name, an account number, a balance in the amount of $123.45, and
a notice that the letter was “an attempt to collect a debt.” Id. at ¶ 15 (citing ECF No. [10] at Exh.
E). Defendant had yet to “validate the debt” at this point. Id.
On May 10, 2016, Plaintiff sent a third debt validation letter to Texas MedClinic, and, on
May 12, 2016, Plaintiff sent a “Notice of Pending Lawsuit” to Texas MedClinic in “an effort to
mitigate damages and settle all claims prior to litigation.” Id. at ¶¶ 16-17 (citing ECF No. [10] at
Exhs. F-G).

On May 28, 2016, Plaintiff received a second letter from Defendant bearing

Plaintiff’s name, an account number, a balance in the amount of $123.45, and a notice that the
letter was “an attempt to collect a debt.” Id. at ¶ 18 (citing ECF No. [10] at Exh. H).
Based on these allegations, Plaintiff, proceeding pro se, filed suit against Defendant on
August 16, 2016, asserting six counts, including violations of the Fair Debt Collection Practices
Act (“FDCPA”) (Counts I-II), violations of the Florida Consumer Collection Practices Act
(“FCCPA”) (Counts III-IV), and violations of the Fair Credit Reporting Act (“FCRA”) (Counts
V-VI). See ECF No. [10]; see also ECF No. [23]. Plaintiff’s First Amended Complaint sought
“$1,000 statutory damages, actual damages, filing fees and cost [sic]” as to each of Counts I-V,
and actual damages, filing fees and costs, and punitive damages as to Count VI. ECF No. [10];
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The Second Amended Complaint alleges that Plaintiff never received from Defendant a response to the
debt validation letter. Id. at ¶ 11.
2
The exhibits referenced herein are referenced in both Plaintiff’s First and Second Amended Complaints,
ECF Nos. [10], [27], and are attached to Plaintiff’s First Amended Complaint, see ECF No. [10] at Exhs.
A-H.

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Case No. 16-cv-61094-BLOOM/Valle
ECF No. [23]. On September 16, 2016, Defendant filed its first Motion to Dismiss, ECF No.
[12], seeking dismissal of Plaintiff’s plea for statutory damages with respect to Counts I-IV of
the First Amended Complaint to the extent that Plaintiff was seeking statutory damages of
$1,000 per violation of the FDCPA and FCCA, as well as dismissal of Counts II and VI of the
First Amended Complaint. The Court granted Defendant’s first Motion to Dismiss in part,
ordering that, with respect to damages, Plaintiff could not recover in excess of $1,000 for any
and all violations of the FDCPA or in excess of $1,000 for any and all violations of the FCCPA,
and dismissing Count VI without prejudice. ECF No. [26].
Plaintiff thereafter filed a Second Amended Complaint on November 7, 2016, asserting
the same two violations of the FDCPA under one Count (Count I), the same two violations of the
FCCPA also under one count (Count II), and only a single violation of the FCRA (Count III).
ECF No. [27]; see also ECF No. [10]. Defendant now moves to dismiss all counts of Plaintiff’s
Second Amended Complaint pursuant to Rule 12(b)(6).
II. LEGAL STANDARD
A pleading in a civil action must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002). While a complaint “does not need detailed factual allegations,” it must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”).

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Nor can a complaint rest on “‘naked

Case No. 16-cv-61094-BLOOM/Valle
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized that “[t]o survive a
motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570); see also
Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee
Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir.
2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D.
Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the
non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal,
556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir.
2005) (“[A] document outside the four corners of the complaint may still be considered if it is
central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While the court is required to accept as true all
allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal
pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’” Magluta v.

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Case No. 16-cv-61094-BLOOM/Valle
Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)).
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). However, “this leniency does not give a court license to serve as de
facto counsel for a party . . . or to rewrite an otherwise deficient pleading in order to sustain an
action.” GJR Inv., Inc. v. Cty of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal
citations omitted).
III. DISCUSSION
A. FDCPA and FCCPA Claims (Counts I-II)
In Count I of the Second Amended Complaint, Plaintiff alleges two separate violations of
the FDCPA. ECF No. [27] at ¶¶ 22-25. Specifically, Count I alleges that Defendant violated the
FDCPA “by falsely representing the character, amount, or legal status of any debt” and “by the
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.” Id. at ¶¶ 22, 24. In Count II of the Second Amended Complaint,
Plaintiff alleges two separate violations of the FCCPA whereby Defendant, on two separate
occasions, “claim[ed], attempt[ed] or threaten[ed] to enforce a debt when [it] knew that the debt
was not legitimate.”

Id. at ¶¶ 29-32.

Defendant argues that Plaintiff’s Second Amended

Complaint fails to state a claim under either the FDCPA or the FCCPA because it does not make
the threshold allegation regarding the nature of the underlying debt – namely, that the alleged
activity at issue arose out of communications related to attempts to collect a “consumer debt.”
ECF No. [35] at 3-4.

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Case No. 16-cv-61094-BLOOM/Valle
In 1977 Congress enacted the FDCPA “to eliminate abusive debt collection practices by
debt collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State action
to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). “To recover under
both the FDCPA and the FCCPA (a Florida state analogue to the federal FDCPA), a plaintiff
must make a threshold showing that the money being collected qualifies as a ‘debt.’”
Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 836-37 (11th Cir. 2010). The FDCPA and the
FCCPA identically define “debt” as “any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money, property, insurance, or services which
are the subject of the transaction are primarily for personal, family, or household purposes,
whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5) (emphasis
added); Fla. Stat. § 559.55(1) (same). Accordingly, the FDCPA and FCCPA apply only to
payment obligations of a (1) consumer arising out of a (2) transaction in which the money,
property, insurance, or services at issue are (3) primarily for personal, family, or household
purposes. Oppenheim, 627 F.3d at 837. “The statute thus makes clear that the mere obligation
to pay does not constitute a ‘debt’ under the FCPA.” Id.
Here, Defendant is correct that the factual allegations presented in Plaintiff’s Second
Amended Complaint are insufficient to establish that Defendant’s activities relate to a “consumer
debt.” Regarding the underlying debt, Plaintiff merely alleges that she had no prior relationship
with Defendant and that she has no contractual obligation to pay Defendant. ECF No. [27] at ¶¶
8-9. By failing to offer any specific facts relating to the debt itself, the Second Amended
Complaint falls short of demonstrating that the underlying debt involves, for example, “a

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Case No. 16-cv-61094-BLOOM/Valle
mortgage, credit card, medical bill, or other consumer debt.” Dunham v. Lombardo, Davis &
Goldman, 830 F. Supp. 2d 1305, 1307 (S.D. Fla. 2011).
Plaintiff attempts to overcome that deficiency by asserting in her Response that “[t]he
debt in question as alleged is . . . related to a Medical bill.” ECF No. [36] at 1. Defendant argues
that Plaintiff is precluded from relying on this allegation as it was omitted from Plaintiff’s
Second Amended Complaint.

ECF No. [37] at 2.

However, though such an allegation

describing the nature of the underlying debt is indeed omitted from the Second Amended
Complaint, the Second Amended Complaint does incorporate by reference an invoice pertaining
to the underlying debt. See ECF No. [27] at ¶ 15 (citing ECF No. [10] at Exh. E). That invoice,
which was issued by Texas MedClinic and was included in a letter sent to Plaintiff by Defendant,
refers to Plaintiff as a “patient” and advises that “[c]harges for this visit are for ancillary services
provided by Texas MedClinic and professional services provided by the physician.” ECF No.
[10] at Exh. E. The Court finds that the contents of the invoice shed light on the nature of the
underlying debt, and in doing so, provide more than a mere recital of the statutory definition of a
consumer debt. Cf. Dunham, 830 F. Supp. 2d at 1307 (denying request for default judgment
where plaintiff failed to plead facts regarding consumer debt and instead “parroted the language
of the FDCPA”). Under the liberal pleading standards governing pro se pleadings, the Court
finds that the invoice and the Second Amended Complaint’s incorporation of it by reference
sufficiently demonstrate that the underlying debt is related to a medical bill and establish
Defendant’s notice of such. Accordingly, the Court declines to dismiss Plaintiff’s FDCPA and
FCCPA claims on the basis that the Second Amended Complaint does not sufficiently allege that
the alleged activity at issue arose out of communications related to attempts to collect a
“consumer debt.”

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B. FCRA Claim (Count III)
In Count III of the Second Amended Complaint, Plaintiff alleges that Defendant violated
section 1681b(f) of the FCRA “by obtaining Plaintiff’s consumer report without a permissible
purpose as defined by 15 U.S.C. § 1681b.” ECF No. [27] at ¶ 40. Defendant argues that
Plaintiff’s Second Amended Complaint fails to state a claim under the FCRA because it does not
allege the absence of an underlying debt or that Defendant was aware that no underlying debt
existed when it requested Plaintiff’s consumer report. ECF No. [35] at 4-5.
The FCRA was enacted “to require that consumer reporting agencies adopt reasonable
procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and
other information in a manner which is fair and equitable to the consumer, with regard to the
confidentiality, accuracy, relevancy, and proper utilization of such information.” 15 U.S.C. §
1681(b). Section 1681b(f) of the FCRA provides in relevant part: “A person shall not use or
obtain a consumer report for any purpose unless—(1) the consumer report is obtained for a
purpose for which the consumer report is authorized to be furnished under this section.” “To
state a FCRA claim of willful or knowing acquisition of a consumer report, a plaintiff must
prove each of the following: (i) that there was a consumer report, (ii) that defendants used or
obtained it, (iii) that they did so without a permissible statutory purpose, and (iv) that they acted
with the specified culpable mental state.”

Brown v. Encore Capital Grp. Inc., 2015 WL

1778380, at *5 (N.D. Ala. Apr. 20, 2015) (citing Shepherd–Salgado v. Tyndall Fed. Credit
Union, 2011 WL 5401993, at *3 (S.D. Ala. Nov. 7, 2011)). A consumer reporting agency is
permitted to furnish a consumer report “to a person which it has reason to believe intends to use
the information in connection with a credit transaction involving the consumer on whom the
information is to be furnished and involving the extension of credit to, or review or collection of

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an account of, the consumer.” 15 U.S.C. § 1681b(a)(3)(A). “In short, it is permissible to obtain
a consumer's credit report for collection purposes.” Brown, 2015 WL 1778380, at 5* (citing
Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 34 (3d Cir.2011)).

That said, “it is not a

permissible purpose to pull a consumer's report where no actual debt exists.” Tacoronte v. Tate
& Kirlin Associates, 2013 WL 5970720, at *9 (M.D. Fla. Nov. 8, 2013).
Here, Plaintiff’s Second Amended Complaint does not dispute the underlying debt and
instead appears to take issue with Defendant’s right to collect it, alleging that Plaintiff “has no
prior or present established relationship with Defendant. . . . [or any] contractual obligation to
pay Defendant.” ECF No. [27] at ¶¶ 8-9; see also ECF No. [36] at 6. Indeed, the Second
Amended Complaint expressly acknowledges “the agreement creating the debt permitted by
law.” ECF No. [27] at ¶ 32 (citing ECF No. [10] at Exh. E). Without an allegation that Plaintiff
did not owe the underlying debt, the Second Amended Complaint fails to support the conclusory
allegation made thereunder that Defendant obtained Plaintiff’s consumer report without a
permissible purpose. See Brown, 2015 WL 1778380, at *5-6 (dismissing complaint where
plaintiff alleged that she was not indebted to debt collector but failed to allege that she did not
owe the debt). Accordingly, Plaintiff’s FCRA claim under Count III of the Second Amended
Complaint will be dismissed without prejudice with leave to amend.
IV. CONCLUSION
For the foregoing reasons, is it hereby ORDERED AND ADJUDGED as follows:
1. Defendant Account Services’ Motion to Dismiss, ECF No. [35], is GRANTED IN
PART and DENIED IN PART.
2. Count III is DISMISSED without prejudice.

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3. Plaintiff is granted leave to amend and is directed to file an amended complaint on or
before February 13, 2017.
DONE AND ORDERED in Miami, Florida this 1st day of February, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

Nathalie Jimenez, pro se
406 NW 68th Avenue
Apt 411
Plantation, FL 33317

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