Mesa v. Transworld Systems Inc et al
ORDER granting 27 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
AMERICAN EXPRESS EDUCATIONAL
AMERICAN EXPRESS, and
TRANSWORLD SYSTEMS INCORPORATED,
THIS CAUSE is before the Court upon Transworld Systems Incorporated's Motion to
Dismiss ... ("Motion") [ECF No. 27], filed February 28,2017. PlaintiffRene Mesa ("Mesa") filed
a Motion in Opposition ... ("Response") [ECF No. 34] on March 28, 2017. Defendant Transworld
Systems Inc. ("Transworld") filed its Reply ... ("Reply") [ECF No. 45] on April 14, 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);
FDCPA, 15 U.S.C. § 1692e(l0) (Count IV); 2 FDCPA, 15 U.S.C. § 1692e(11) (Count V); Florida
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).
Misa mistakenly labels this "Count VI" instead of"Count IV."
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). Mesa brings all eight counts against Transworld.
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. ~ 31). The caller
represented that the call was on behalf of Defendant Transworld, but "failed to provide meaningful
identification as debt collector at the inception of the calls." (!d. ~ 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 Systems 3 in case 13-cv-23131-UU. (!d. ~ 33). The final call Mesa received from
Transworld was on or about October 22, 2015.
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.
Although Mesa did not consent to being recorded during the phone calls, the representative
indicated that she could not tum off the recorder. (!d.
36). Only after obtaining Mesa's private
information did the representative indicate that she was a debt collector. (Jd.). The Transworld
representative refused to identify herself as a debt collector until after Mesa provided his
identification information. (!d.
3 7). Mesa subsequently called Transworld various times, and a
different representative informed Mesa that he owed $10,945.85. (!d.
39). The representative
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
The Court dismissed Defendant NCO Financial Systems from this case without prejudice on March 21, 2017 [ECF
"expressed his frustration" to a supervisor regarding late payments on his credit report "that never
took place." (!d.
The Transworld supervisor informed Mesa that the original lender for the loan was
American Express Educational Assurance Company ("AEEAC") and that "further inquiry
regarding the false late payments that appeared in [the] credit report should be taken up with
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." (Id.). 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
43). The Defendants AEEAC, American Express Company ("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.
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.
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.
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.
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 oftheir agents under agency." (See
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 of the 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
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.
Transworld contends that Mesa "has failed to plead a single fact to support any of his
alleged causes of action" and that Mesa's claims fail as a matter oflaw (Mot. 4).
A. FDCPA Claims
In Counts I through V, Mesa alleges that Transworld violated the FDCP A under § 1692d
(harass, oppress, or abuse any person in connection with the collection of a debt), § 1692e(2) (false
representation of debt), § 1692e(8) (communicating false credit information), § 1692e(10) (false
representation or deceptive means to collect debt or obtain consumer information), and
§ 1692e(ll) (failure to disclose debt collector status in initial communication). (Am. Compl.
73, 77, 81, 85, 89). Namely, Mesa alleges that Transworld (1) called his unlisted telephone
number and harassed him "despite being asked to cease the calls and reporting false information
with the credit bureaus"; (2) "report[ed] late payments that never took place on [his] credit
reports"; (3) "provide[d] the credit bureaus with false late payments"; (4) "call[ed] [his] unlisted
telephone number and harass[ ed] him despite being asked to cease the calls[,] report[ ed] false
information with the credit bureaus, fail[ ed] to provide a mini-miranda[,] and fail[ ed] to
meaningfully identify themselves"; and (5) "obtain[ed] location information while failing to
provide [Mesa] the mini-miranda." (Jd.).
The purpose of the FDCP A "is to ensure that communications initiated by the debt
collector (not the consumer) are not abusive, deceptive, or unfair." See Gorham-Dimaggio v.
Countrywide Home Loans, Inc., No. 1:05-CV-0583, 2005 WL 2098068, at *2 (N.D.N.Y. Aug. 30,
2005); see also Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) ("The FDCPA was passed
to protect consumers from deceptive or harassing actions taken by debt collectors."). To state a
claim under the FDCP A, the complaint must allege that "( 1) the plaintiff has been the object of
collection activity arising from a consumer debt; (2) the defendant is a debt collector as defined by
the statute; and (3) the defendant has engaged in an act or omission prohibited by the FDCP A."
Eke v. FirstBank Fla., 779 F. Supp. 2d 1354, 1357 (S.D. Fla. 2011). Claims under the FDCPA
must be brought "within one year from the date on which the violation occurs." See 15 U.S.C.
Here, Mesa's FDCP A claims rest on the core allegations of a prior cease and desist request,
failure to properly disclose debt collector status during telephone calls, and knowingly reporting
false credit report information. While Mesa argues that he received calls from the Defendants
"several times within the last four years," he also concedes that the final call he received from
Transworld was on October 22, 2015. (See Am. Compl.
34). As Mesa filed his initial complaint
on October 21, 2016, only those alleged actions by Transworld that occurred within the one-year
statute of limitations period can be considered for Mesa's FDCPA claims. Mesa argues that his
previous lawsuit against NCO Financial Systems (Case No. 13-cv-23131-UU) somehow placed
Transworld on notice to cease and desist collection of the debt in the present case. Absent some
factual allegation of a relationship between NCO Financial Systems and Transworld, and how that
relationship gave rise to that notice, the Court is unable to conclude that Mesa has pled a claim of
harassment or abuse in debt collection here with respect to the alleged previous cease and desist
Additionally, the only alleged call from Transworld within the limitations period appears
to be the final call on October 22, 2015. Mesa's factual allegations regarding his phone calls with
Transworld principally rely on his own return phone calls to Transworld, rather than calls initiated
by Transworld. (See, e.g., Am. Compl.
35, 39). As the FDCPA pertains to "communications
initiated by the debt collector (not the consumer)," Gorham-Dimaggio, 2005 WL 2098068, at *2,
it is doubtful that the FDCP A is meant to apply to this type of phone call initiated by Mesa.
However, even if the FDCPA does apply to these return phone calls, Mesa's FDCPA claims fail
for another reason. Meaningful disclosure requires "that a debt collector must, when viewing the
call in its totality, disclose enough information so as not to mislead the recipient as to the purpose
ofthe call." See Hart v. Credit Control, LLC, 214 F. Supp. 3d 1259 (M.D. Fla. 2016) (citation and
internal quotation marks omitted) (emphasis added); accord Reeders v. Gulf Coast Collection
Bureau, Inc., 432 F. App'x 918, 919 (11th Cir. 2011) (finding no clear error where the district
court determined that the entirety of a voice mail message, which included the term "Collection
Bureau," adequately disclosed to an "unsophisticated consumer" that the call pertained to debt
collection). Mesa argues that he did not receive the required "mini-miranda" disclosure from
Transworld that it was a debt collector until after Transworld collected his personal information
following several return phone calls to Transworld. (Am. Compl.
35-39). However, Mesa has
failed to point to an authority that such debt collector disclosure is required at the beginning of the
phone call. Instead, the law of this circuit is to look at the call in its totality, and it is clear from the
facts as pled that Transworld disclosed its status as a debt collector during the calls, even if it did
not do so at their inception.
Finally, regarding the reporting to Mesa's credit report, the complaint includes the contents
of the allegedly false entry, which does not show any action by Transworld but rather by the U.S.
Department of Education. (See id.
42). Transworld's name does not appear in the credit report
entry. Additionally, the last credit report date of the entry referenced here was October 3, 2015.
(!d.). As this alleged violation occurred outside the one-year FDCPA statute of limitations, the
FDCPA claims pertaining to the false credit report must be dismissed under Mesa's facts as pled.
Given the deficiencies addressed above, dismissal of Counts I through Vis appropriate and
required. The Court shall provide Plaintiff with one final opportunity to amend his complaint to
assert sufficient allegations for his FDCP A claims within the statute of limitations period.
B. FCCPA Claims
In Count VI, Mesa alleges that AEEAC, Amex, and Transworld "engaged and instructed
others to violated [sic] § 559.72(9) by asserting the existence of some other legal right when such
person knows that the right does not exist." (Am. Compl.
93). Further, "[t]hese Defendants did
not have legal right to call Plaintiffs unlisted telephone number, harass the Plaintiff after being
asked to cease calls or reporting false information to the credit bureaus," and "Defendants engaged
in unlawful activity knowing that the activity was in violation of state and federal law and not
legally allowed to be taken." (!d.
Florida Statute Section 559.72(9) provides that "[i]n collecting consumer debts, no person
shall [c]laim, 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." "In contrast to the FDCP A, Section 559. 72(9) of the FCCPA requires a plaintiff to
demonstrate that the debt collector defendant possessed actual knowledge that the threatened
means of enforcing the debt was unavailable." LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1192 n.12 (11th Cir. 201 0). "Thus, for example, a plaintiff may establish a violation of section
559.72(9) by showing that the debt collector ... attempted to collect a debt that had already been
satisfied." Read v. MFP, Inc., 85 So. 3d 1151, 1155 (Fla. 2d DCA 2012). In such a case, "the debt
collector asserted specific legal rights concerning the collection of the debt at issue when it did not
legally possess those rights." !d.
Here, Mesa has not pled that Transworld had actual knowledge that it was not permitted to
call him nor that Transworld attempted to enforce a debt it knew was illegitimate. In fact, Mesa
alleges that he did not dispute the alleged "false late payments" in his credit report until after the
initial Transworld phone call. (See Am. Compl.
41 ). The Court shall provide Plaintiff with one
final opportunity to amend his complaint to assert sufficient allegations for his FCCP A claim.
C. TCP A Claim
In Count VII, Mesa alleges that Transworld, AEEAC, and Amex "violated
§ 227(b)(l)(A)(iii) [of the TCPA] by making one or more telephone calls to Plaintiffs cellular
telephone, which were initiated by an electronic autodialing device not legally permitted under any
provision to the aforementioned statute and for non-emergency purposes." (Am. Compl. ~ 98).
The TCPA provides in relevant part that "[i]t shall be unlawful for any person ... to make
any call (other than a call ... made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded voice to any telephone number
assigned to a ... cellular telephone service ... unless such call is made solely to collect a debt
owed to or guaranteed by the United States." See 47 U.S.C. § 227(b)(l)(A)(iii). The TCPA creates
a private right of action for a person to bring "an action to recover for actual monetary loss from
such a violation, or to receive $500 in damages for each such violation, whichever is greater." !d.
§ 227(b )(3)(B). "The TCPA is essentially a strict liability statute" that "does not require any intent
for liability except when awarding treble damages." See A lea London Ltd. v. Am. Home Servs.,
Inc., 638 F.3d 768, 776 (11th Cir. 2011):
Here, Mesa provides a barebones allegation that "[s]omeone called representing that they
were calling on behalf of [Transworld] by use of an automated dialer, but did not provide their
name." (Am. Compl. ~ 32). Transworld argues that Mesa is required to plead his cellular telephone
number to adequately allege a claim under the TCP A. (Mot. 9). However, other courts in this
circuit have not found it necessary that a plaintiff plead the specific cellular telephone number. See,
e.g., Manfred v. Bennett Law, PLLC, No. 12-CV-61548, 2012 WL 6102071, at *2 n.2 (S.D. Fla.
Dec. 7, 2012) ("Contrary to (Defendant's] contention, Plaintiff need not allege his specific cellular
telephone number."); Weaver v. Wells Fargo Bank N.A., No. 8:15-CV-1247-T-23TGW, 2015 WL
4730572, at *2 (M.D. Fla. Aug. 10, 2015) (citing the numerous district courts that have concluded
that pleading an actual cellular telephone number is not necessary).
Transworld also argues that Mesa has insufficiently alleged the use of an automatic
telephone dialing system. (Mot. 9-1 0). This Court agrees. Mesa's only factual allegation regarding
the use of the automatic telephone dialing system is that someone from Transworld called "by use
of an automatic dialer," but Mesa fails to provide any other details regarding the contents of the
message. "(A] bare allegation that defendants used an [automated telephone dialing system] is not
enough. Instead, well-pled allegations of an [automated telephone dialing system] rely on indirect
allegations, such as the content of the message, the context in which it was received, and the
existence of similar messages to raise an inference that an [automated telephone dialing system]
was used. Gragg v. Orange Cab Co., 942 F. Supp. 2d 1111, 1114 (W.D. Wash. 2013) (citation and
internal quotation marks omitted); accord McGinity v. Tracfone Wireless, Inc., 5 F. Supp. 3d 1337,
1340 (M.D. Fla. 2014); see also Speidel v. JP Morgan Chase & Co., No. 2:13-CV-852-FTM-29,
2014 WL 582881, at *2 (M.D. Fla. Feb. 13, 2014) (dismissing TCPA claim for "lack[ing] adequate
factual support" where the plaintiffs "allegations merely follow[ ed] the language of the statute"
and "failed to identify the nature of the calls"). Because Mesa has alleged insufficient facts that
Transworld made the call with an automatic telephone dialing system, the TCP A claim is
dismissed without prejudice. See Duran v. Wells Fargo Bank, N.A., 878 F. Supp. 2d 1312, 1316
(S.D. Fla. 2012) (dismissing TCPA claim without prejudice where the complaint was "devoid of
any factual allegations" to support the use of an automatic telephone dialing system). The Court
shall provide Plaintiff with one final opportunity to amend his complaint to assert sufficient
allegations for his TCP A claim.
D. Negligent Hiring and Supervision Claim
In Count VIII, Mesa alleges that AEEAC, Amex, and Transworld negligently hired,
trained, and/or supervised their employees and staff and that such actions violated the duty of
reasonable care in supervision the employees' activity to "make certain that their acts are
compliant with state and federal law resulting in Plaintiffs harassment and fraudulent items being
added to his credit report." (See Am. Compl.
"Negligent hiring occurs when, prior to the time the employee is actually hired, the
employer knew or should have known of the employee's unfitness." Garcia v. Duffy, 492 So. 2d
435, 438 (Fla. 2d DCA 1986). "Negligent supervision occurs when during the course of
employment, an employer becomes aware or should have become aware of problems with an
employee that indicate his unfitness, and the employer fails to take further actions such as
investigation, discharge, or reassignment." Warner v. CBRE, Inc., No. 13-CV-80055, 2013 WL
12084301, at *3 (S.D. Fla. Dec. 11, 2013) (citation omitted). A "negligent supervision and
retention claim ... requires that the actions ofthe employee be outside the course and scope of the
employee's employment." City of Boynton Beach v. Weiss, 120 So. 3d 606, 610 (Fla. 4th DCA
2013 ). Where a plaintiff fails to provide factual support for contentions that the defendants acted
unreasonably in hiring or supervising employees, such "complete inadequacy" of the pleading
requires the court to dismiss the claim. See Warner v. CERE, Inc., No. 13-CV-80055, 2013 WL
12084301, at *3 (S.D. Fla. Dec. 11, 2013).
Mesa has provided no factual allegations that Transworld knew or should have known that
a specific employee was unfit for employment. Absent any factual support, therefore, "the Court
dismisses this claim onfacts alleged." See Warner, 2013 WL 12084301, at *3. The Court shall
provide Plaintiff with one final opportunity to amend his complaint to assert sufficient allegations
for his negligent hiring and supervision claim.
Having failed to state a viable cause of action against Defendant Transworld, Plaintiffs
claims against Transworld 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
Transworld. However, Plaintiff should only assert such factual allegations if they 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
ORDERED AND ADJUDGED that Transworld Systems Incorporated's Motion to
Dismiss Amended Complaint [ECF No. 27] is GRANTED. This action is DISMISSED without
prejudice as to all counts against Defendant Transworld. 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 ofMay, 2017.
Paul C. Huck
United States District Judge
Copies furnished to:
All Counsel of Record
Rene Mesa, Pro Se
7014 NW 169th St
Miami, FL 33015
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?