GILMORE v. USCB CORPORATION

Filing 32

ORDER DENYING 20 Motion for Judgment on the Pleadings. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 11/9/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PHILLIP GILMORE, on behalf of
himself and others similarly situated,

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Plaintiff,
v.
USCB CORPORATION,
Defendant.

CIVIL ACTION NO. 5:17-CV-119 (MTT)

ORDER
Plaintiff Phillip Gilmore filed a class action complaint against Defendant USCB
Corporation, asserting violations of the Telephone Consumer Protection Act (“TCPA”)
and the Fair Debt Collection Practices Act (“FDCPA”). Doc. 1. The Court granted
Gilmore’s motion to amend his complaint. Doc. 14. After filing an answer, USCB
Corporation moved for judgment on the pleadings on Gilmore’s FDCPA claims pursuant
to Federal Rule of Civil Procedure 12(c). Doc. 20. For the following reasons, USCB
Corporation’s motion (Doc. 20) is DENIED.
I. BACKGROUND
Gilmore asserts that, “[s]ometime in 2017,” USCB Corporation began calling his
cellular telephone number in an attempt to collect an alleged debt. Doc. 13-1 ¶ 22.
Specifically, Gilmore alleges that USCB Corporation placed at least one call on
February 24, 2017 and another on February 28, 2017. Id. ¶ 23. Upon answering the
call on at least one occasion, Gilmore states that a pre-recorded voice asked for a
person named Johnny Lancaster and that he informed USCB Corporation that it had the

wrong number. Id. ¶¶ 29-31. Notwithstanding this conversation, Gilmore alleges USCB
Corporation “placed additional calls to [his] cellular telephone number.” Id. ¶ 24.
Based on USCB Corporation’s continued calls, Gilmore claims a violation of 15
U.S.C. § 1692d of the FDCPA, which prohibits harassment or abuse in connection with
the collection of a debt. Id. ¶ 80. USCB Corporation moved for judgment on the
pleadings, arguing that Gilmore’s amended complaint lacks sufficient facts to establish a
claim under § 1692d(5) and that Gilmore lacks standing to bring such a claim because
he is not a “consumer” as defined by § 1692a(3). Doc. 20-1 at 8.
II. DISCUSSION
A.

Legal Standard under Rule 12(c)
Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are

closed—but early enough not to delay trial—a party may move for judgment on the
pleadings.” “Judgment on the pleadings is appropriate when there are no material facts
in dispute and the moving party is entitled to judgment as a matter of law.” Douglas
Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008) (citing Cannon v. City of
W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)). “A motion for judgment on the
pleadings is subject to the same standard as is a Rule 12(b)(6) motion to dismiss.”
Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 864 F. Supp. 1274, 1278
(N.D. Ga. 1994).
To avoid dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), and
therefore also a Rule 12(c) motion for judgment on the pleadings, a complaint must
contain sufficient factual matter to “‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
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U.S. 544, 570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are
accepted as true, and the reasonable inferences therefrom are construed in the light
most favorable to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261
(11th Cir. 2006) (quotation marks and citation omitted). However, “where the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[C]onclusory
allegations, unwarranted deductions of facts or legal conclusions masquerading as facts
will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002). The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation
marks and citation omitted). Where there are dispositive issues of law, a court may
dismiss a claim regardless of the alleged facts. Marshall Cty. Bd. of Educ. v. Marshall
Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
B.

Claims under Section 1692d
Although not clear, Gilmore seems to assert two claims under § 1692d of the

FDCPA: one for a violation of subsection (5) and one under the section generally.1
Docs. 13-1 ¶ 3; 24 at 5. Section 1692d provides, in relevant part, the following:

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USCB Corporation does not raise the question of whether a plaintiff may bring claims under § 1692d
and § 1692d(5) on the same set of facts, and the Court does not reach that question. See Stirling v.
Genpact Servs., LLC, 2012 WL 952310, at *3 (C.D. Cal.) (noting that allowing the plaintiff to pursue both
a § 1692d claim and a § 1692d(5) claim “based on exactly the same set of facts—without more—would
not only effectively eviscerate the requisite intent contemplated in situations governed by § 1692d(5), but
would also render that entire subsection superfluous. . . . Therefore, the Court finds that the more specific
FDCPA provision, § 1692d(5), governs.”).

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A debt collector2 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. Without
limiting the general application of the foregoing, the following
conduct is a violation of this section:
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with
intent to annoy, abuse, or harass any person at the called
number.
In support of its motion, USCB Corporation cites numerous district court cases holding
that the plaintiffs failed to make out claims under the FDCPA where the defendant
collection agencies made many more calls and at a much greater frequency than in the
present case. Doc. 20-1 at 6-7. However, as Gilmore correctly points out, in all of
those cases, the various district courts decided the issue at the summary judgment
stage of the litigation once the factual records had been established. Doc. 24 at 1. In
the present case, discovery is ongoing, and the number and timing of the calls made to
Gilmore are still under investigation.3 Accordingly, deciding the issue of whether
Gilmore established a violation of the FDCPA as a matter of law would be premature.
Moreover, pursuant to § 1692d(5), Gilmore is only required to plead enough facts
to show that it is plausible that USCB Corporation caused his cellular telephone to ring

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The FDCPA defines a “debt collector” as “any person who uses any instrumentality of interstate
commerce . . . in any business the principal 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). USCB Corporation does not seem to dispute its status as a “debt
collector” within the meaning of the FDCPA.

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Gilmore has attached to his brief USCB Corporation’s responses to his interrogatories. See generally
Doc. 24-1. The Court did not consider such responses in ruling on the present motion. See Brown v.
Brock, 169 F. App’x. 579, 581 (11th Cir. 2006) (“When reviewing a judgment on the pleadings, we will
accept the facts in the complaint as true and view them in the light most favorable to the nonmoving party.
Judgment can be rendered by looking at the substance of the pleadings and any judicially noticed facts.
The only relevant “pleadings” in this case include the [amended] complaint and the answer.”) (quotation
marks, alterations, and citations omitted).

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repeatedly or continuously with the intent to annoy, abuse, or harass. Twombly, 550
U.S. at 570. He has. Taking the facts in the light most favorable to Gilmore, the Court
notes that USCB Corporation, despite being informed it had the wrong number, has
placed more than two calls to Gilmore’s cellular telephone number. While Gilmore does
not provide in his amended complaint the exact number of calls he received or an
explanation as to how the calls constituted harassment, the Court believes the Twombly
standard does not require such detailed factual allegations for a straightforward FDCPA
claim. See Jeter v. Alliance One Receivables Mgmt., 2010 WL 2025213, at *5 (D. Kan.)
(applying the Twombly standard and not requiring the plaintiff to show “the date on
which [he] first received a call, how many calls he received, or the specific content of
those calls, with an explanation as to how they were allegedly false, misleading, or
harassing”). Thus, the Court concludes that Gilmore has stated a claim for relief under
§ 1692d that is plausible on its face.
USCB Corporation also argues that it is entitled to judgment as a matter of law
because Gilmore is not a “consumer” as defined by § 1692a(3) of the FDCPA. Doc. 201 at 8. The Court disagrees. A “consumer” is defined by the FDCPA as “any natural
person obligated or allegedly obligated to pay a debt.” 15 U.S.C. § 1692a(3). While
Gilmore does not allege to be a debtor, that is immaterial. One of the purposes of the
FDCPA is to ensure that every person, including non-debtors, has a right to be treated
in a reasonable manner. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1178 (11th Cir.
1985); see also § 1692k(a) (“Except as otherwise provided by this section, any debt
collector who fails to comply with any provision of this subchapter with respect to any
person is liable to such person. . . .”) (emphasis added). Though some of the FDCPA
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provisions apply only to “consumers,” see, e.g., §§ 1692c(a), 1692g, 1692h, there is no
such limitation under § 1692d. See Meadows v. Franklin Collection Serv., Inc., 414 F.
App’x 230, 234 (11th Cir. 2011) (permitting a claim under § 1692d of the FDCPA based
on telephone calls to a non-debtor). Accordingly, Gilmore has standing to bring his
claims under § 1692d.
III. CONCLUSION
For the foregoing reasons, USCB Corporation’s motion is DENIED.
SO ORDERED, this 9th day of November, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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