Mesa v. Transworld Systems Inc et al

Filing 48

ORDER granting 26 Motion to Dismiss for Failure to State a Claim. Amended Complaint due by 6/12/2017. Signed by Senior Judge Paul C. Huck on 5/18/2017. (ah01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.:

16-CV-24447-HUCK

RENE MESA,

Plaintiff,
vs.
AMERICAN EXPRESS EDUCATIONAL
ASSURANCE COMPANY,
AMERICAN EXPRESS, and
TRANSWORLD SYSTEMS IN CORPORATED,

Defendants.

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ORDER

THIS CAUSE is before the Court upon American Express Company and American
Express Educational Assurance Company's Motion to Dismiss ... ("Motion") [ECF No. 26], filed
February 22, 2017. Plaintiff Rene Mesa ("Mesa") filed a Motion in Opposition 12(B)(6)
... ("Response") [ECF No. 29] on March 15, 2017. Defendants American Express Company
("Amex") and American Express Educational Assurance Company ("AEEAC") filed their Reply
Memorandum ... ("Reply") [ECF No. 35] on March 28,2017. The Court has carefully considered
the parties' submissions, the record, and applicable law.
I. BACKGROUND 1

Mesa filed his Amended Complaint on February 7, 2017 [ECF No. 22], in which he alleges
eight separate violations: Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692d
(Count I); FDCPA, 15 U.S.C. § 1692e(2) (Count II); FDCPA, 15 U.S.C. § 1692e(8) (Count III);
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The Court takes the allegations from the Amended Complaint [ECF No. 22], the operative complaint in this case, as
true for purposes of a Motion to Dismiss. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369
(11th Cir. 1997).

FDCPA, 15 U.S.C. § 1692e(10) (Count IV); 2 FDCPA, 15 U.S.C. § 1692e(11) (Count V); Florida
Consumer Collection Practices Act ("FCCPA"), Fla. Stat. § 559 (Count VI); Telephone Consumer
Protection Act ("TCPA"), 47 U.S.C. § 227 (Count VII); and Negligent Hiring and Supervision
(Count VIII). Counts VI, VII, and VIII are the only allegations against Amex and AEEAC.
Mesa alleges that he received calls to his cellular telephone "several times within the last
four years, by use of an automated telephone dialing system." (Am. Compl.

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31). The caller

represented that the call was on behalf of Defendant Transworld Systems Inc. ("Transworld"), but
"failed to provide meaningful identification as debt collector at the inception of the calls." (!d.
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32). "Plaintiff received several telephone calls from different telephone numbers." (!d.). Plaintiff

received these calls "after numerous requests to cease and desist" and after settling a federal
lawsuit against Defendant NCO Financial Systems3 in case 13-cv-23131-UU. (!d. ~ 33). The final
call Mesa received from Transworld was on or about October 22, 2015. (!d.

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34).

When Mesa returned the telephone calls, Transworld did not advise him that it was
attempting to collect a debt nor did Transworld identify itself as a debt collector. (!d.

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35).

Although Mesa did not consent to being recorded during the phone calls, the representative
indicated that she could not tum off the recorder. (!d.

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36). Only after obtaining Mesa's private

information did the representative indicate that she was a debt collector. (!d.). The Transworld
representative refused to identify herself as a debt collector until after Mesa provided his
identification information. (!d.

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37). Mesa subsequently called Transworld various times, and a

different representative informed Mesa that he owed $10,945.85. (!d.

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39). The representative

Misa mistakenly labels this "Count VI" instead of"Count IV."

3

The Court dismissed Defendant NCO Financial Systems from this case without prejudice on March 21, 2017 [ECF
No. 32].

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told Mesa that if he made late payments, "those late payments would not appear on the credit
report." (!d.). However, "[t]he late payments did appear on Plaintiffs credit report." (!d.). Plaintiff
"expressed his frustration" to a supervisor regarding late payments on his credit report "that never
took place." (!d.

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40).

The Transworld supervisor informed Mesa that the original lender for the loan was
AEEAC and that "further inquiry regarding the false late payments that appeared in [the] credit
report should be taken up with them." (!d.

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41 ). Plaintiff sent Transworld a notice of dispute

regarding the "false late payments" on his credit report, and Transworld "failed to list the debts as
disputed." (/d.). Mesa alleges that "[b ]y reporting misleading information regarding the nature
and/or status of said alleged debt with respect to such matters as the identity of the original
creditor, the relevant dates and ages of said alleged debt, and other matters which these Defendants
knew or should have known would mislead," Defendants violated the law. (!d.). The late payment
entries were removed from the credit report after several months. (!d.).
Mesa's credit report provided that he had "missed 14 payments within the last four (4)
years," when in fact "[t]hese were defaulted student loans and no payment was ever made on
them." (ld.

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43). The Defendants AEEAC, Amex, and Transworld "knowingly, willfully[,] and

with malice listed seventy-two (72) false and derogatory entries in Plaintiffs credit with Equifax,
Experian[,] and Transunion ... in order to coerce payment." (!d.). Mesa did not consent to receive
calls from Transworld. (!d.

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44). AEEAC, Amex, and Transworld "engaged in a knowingly,

willfully[,] and with malice attempt to collect a debt by providing knowing false and deceptive
credit information to the Credit Bureaus in an attempt to collect a debt." (!d.

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45). Mesa's

telephone number is unlisted, he does not do business with Transworld, and he never consented to
Transworld's use of his private financial information and telephone number. (See id. ~~ 44, 463

47).
Mesa alleges that AEEAC "controls, directs, manages, oversees, supervises, profits from[,]
and engages in debt collection directly and indirectly through" Transworld and is "responsible to
the acts of their agents under agency." (See id.

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48). As such, AEEAC "is required to make certain

that their employees, agents[,] and servants engage in collection efforts that are compliant with the
TCPA, FDCPA[,] and the FCCPA." (See id.). Likewise, Mesa alleges that Amex "controls,
directs, manages, oversees, supervises, profits from[,] and engages in debt collection directly and
indirectly through" Transworld and is "responsible to the acts of their agents under agency." (See
id.

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49).
II. LEGAL STANDARD

"To 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."' Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard "does not require 'detailed factual allegations,' ... it demands more than an
unadorned, the defendant-unlawfully-harmed-me accusation." !d. (alteration added) (quoting
Twombly, 550 U.S. at 555). Pleadings must contain "more than labels and conclusions, and a

formulaic recitation ofthe elements of a cause of action will not do." Twombly, 550 U.S. at 555
(citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a
motion to dismiss." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this
"plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." !d. at 678 (citing
Twombly, 550 U.S. at 556).

When reviewing a motion to dismiss, a court must construe the complaint in the light most
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favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross
& Blue Shield ofF/a., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). However, pleadings that "are no

more than conclusions are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556
U.S. at 678.
III. ANALYSIS

Mesa contends that Amex and AEEAC are legally responsible for telephone calls that
Transworld allegedly made to him. (Am. Compl. ,-r,-r 31--41, 48--49). He alleges that AEEAC and
Amex control, direct, manage, oversee, supervise, profit from, and engage in debt collection
directly and indirectly through their agent Transworld. (See id. ,-r,-r 48--49). Defendants AAEAC
and Amex argue that the claims against them should be dismissed "because there are no
well-pleaded facts supporting the alleged existence of their agency relationship with" Transworld.
(Mot. 5). Rather, Defendants maintain that Mesa's "conclusory agency allegations do not rise
beyond the speculative level" and that Counts VI, VII, and VII "should accordingly be dismissed
for failure to state a claim." (!d.).
"As a general rule, a principal may be held liable for the acts of its agent that are within the
course and scope of the agency." Roessler v. Novak, 858 So. 2d 1158, 1161 (Fla. 2d DCA 2003).
"Although some agencies are based upon an express agreement, a principal may be liable to a third
party for acts of its agent which are within the agent's apparent authority." !d. "Apparent authority
is authority which a principal knowingly tolerates or permits, or which the principal by its actions
or words holds the agent out as possessing." !d. "An apparent agency exists only if all three of the
following elements are present: (a) a representation by the purported principal; (b) a reliance on
that representation by a third party; and (c) a change in position by the third party in reliance on the

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representation." Id "Apparent authority does not arise from the subjective understanding of the
person dealing with the purported agent or from appearances created by the purported agent
himself." Id at 1162. "Rather, apparent authority exists only where the principal creates the
appearance of an agency relationship." ld "For actual authority to exist such that the principal is
bound, there must be an agency relationship, which requires: ( 1) the principal to acknowledge that
the agent will act for it; (2) the agent to manifest an acceptance of the undertaking; and (3) control
by the principal over the actions ofthe agent." Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d
1067, 1077 (11th Cir. 2003).
Mesa has alleged very little factually with respect to the purported agency relationship
between Amex and Transworld or AEEAC and Transworld. First, Mesa alleges that Kirsten
Balko, a Transworld supervisor, informed him that AEEAC "was the original lender and that
further inquiry regarding the false late payments that appeared in [his] credit report should be taken
up with them." (Am. Compl. ~ 41 ). Then, Mesa makes conclusory allegations regarding Amex and
AEEAC's control, management, oversight, and supervision of the debt collection activities of
Transworld. (See id.

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48-49). Mesa has made no factual allegations to support either an apparent

or an actual agency relationship between Amex and Transworld or AEEAC and Transworld. The
only non-conclusory allegation remotely related to the relationship between Amex and Transworld
or AEEAC and Transworld is the Transworld supervisor's statement regarding AEEAC as the
original lender, and even construing that statement broadly, it provides no support for agency, as
appearances of agency "created by the purported agent" are not sufficient to create apparent
authority. "Apparent authority does not arise from the subjective understanding of the person
dealing with the purported agent or from appearances created by the purported agent himself."
Roessler, 858 So. 2d at 1162.

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While it is true that "[t]he existence of an agency relationship is normally one for the trier
of fact to decide," Villazon v. Prudential Health Care Plan. Inc., 843 So. 2d 842, 853 (Fla. 2003),
Plaintiff is also required at the pleading stage of his case to raise a right to relief beyond mere
speculation. See Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mesa must allege "more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do." See id. In fact, Mesa has not even attempted to allege the elements of the agency relationship
here. While the Court recognizes that Plaintiff is proceeding in this case pro se, Plaintiff is not new
to the federal court system. Indeed, Plaintiff has filed numerous cases in this Court over the
previous three or four years. Therefore, the Court holds Plaintiff to a higher standard than if this
were Plaintiffs first exposure to the rules of this Court. And pro se parties are not exempt from
following the law and procedures of the Court.

IV. CONCLUSION
Having failed to state a viable cause of action against Defendants Amex and AEEAC,
Plaintiffs claims against these Defendants are dismissed under Federal Rule 12(b)(6). The Court
shall provide Plaintiff with one final opportunity to amend his complaint to assert sufficient
allegations against Amex and AEEAC, only if such factual allegations can be made in good faith.
In the interest of clarity, Plaintiff is advised to allege and identify specific facts to support each
element of each alleged violation in each count. Plaintiff should provide a "short and plain
statement" of the claims and include only those facts relevant to each claim. See Fed. R. Civ. P.
8(a). Plaintiff is further admonished to write clearly and concisely, avoiding tangential history
lessons or extraneous information. Any reference to exhibits, attachments, or law must be clearly
cited within the complaint whenever possible. Failure to comply with these requirements may

result in striking some or all of Plaintiff's claims. Accordingly, it is
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ORDERED AND ADJUDGED that Amex and AEEAC's Motion to Dismiss Plaintiffs
Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted [ECF No.
26] is GRANTED. This action is DISMISSED without prejudice as to as to Counts VI, VII,

and VIII against Defendants Amex and AEEAC. Plaintiff is granted leave to file an
amended complaint on or before Monday, June 12, 2017. Plaintiff shall not be granted any
further opportunities to amend the complaint after that time. If Plaintiff chooses to file an amended
complaint by the deadline, Plaintiff shall comply with the Federal Rules of Civil Procedure and the
Local Rules of the Southern District of Florida. Moreover, in determining whether to file an
amended complaint, Plaintiff should take into consideration his obligations under Rule 11 of the
Federal Rules of Civil Procedure.

DONE AND ORDERED in Miami, Florida this 18th day of May, 2017.

Paul C. Huck
United States District Judge

Copies furnished to:
All Counsel of Record
Rene Mesa, Pro Se
7014 NW 1691h St
Miami, FL 33015
305-744-6134
theforexdoctor@yahoo. com

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