Beckles v. Aldridge & Connors, LLP
Filing
10
ORDER AND OPINION adopting the Magistrate Judge's alternative recommendation in the 8 Report and Recommendation and denying 4 Defendant's Motion to Dismiss. Signed by Judge Julie E. Carnes on 9/23/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANDRE BECKLES,
Plaintiff,
CIVIL ACTION NO.
v.
1:12-cv-3377-JEC-WEJ
ALDRIDGE & CONNORS, LLP,
Defendant.
ORDER AND OPINION
This case is before the Court on the Magistrate Judge’s Report
and Recommendation [8] recommending granting defendant’s Motion to
Dismiss [4] and dismissing the complaint without prejudice.
No
objections to the Report and Recommendation [8] have been filed.
In his Report and Recommendation (“R&R”), the magistrate judge
has done a thorough job analyzing the complaint and the defendant’s
arguments in support of its motion to dismiss plaintiff’s claim
under
the
Fair
Debt
Collection
Practices
Act
(“FDCPA”).
The
magistrate judge has initially concluded that the plaintiff has not
adequately
alleged
that
the
defendant
law
firm
was
a
“debt
collector,” which is an element of the claim, because he has failed
to
allege
that
the
defendant
is
engaged
in
the
business
of
collecting debts or that defendant regularly attempts to collect
debts.
AO 72A
(Rev.8/82)
((R&R [] at 11-12.)
The magistrate judge notes that this deficiency in pleading is
sufficient to prompt a dismissal without prejudice of the complaint,
which would allow the plaintiff to refile a complaint that properly
alleges
the
above
facts.
In
so
recommending,
however,
the
magistrate judge notes that plaintiff was perhaps not alerted to
this deficiency, as the defendant did not focus on it in its motion
to dismiss.
Further, the magistrate judge suggests that the above
allegation is certainly one that the plaintiff could plausibly make,
as the defendant has appeared on the docket of this court in a
“significant number” of foreclosure cases.1
Id.
at 14.
Accordingly, the magistrate judge notes that the undersigned may
choose not to dismiss the claim on this ground.
Id.
The magistrate
judge correctly prognosticated the Court’s leaning on this issue.
The Court concludes that the claim should not be dismissed based on
this deficiency in pleadings.
1
Likewise, this Court has gone onto the web site of the
defendant and notes that, as of September 23, 2013, the section of
the site
that is “About the Firm,” indicates that the firm
“represents financial institutions, including banks, mortgage
servicing concerns and institutional investors, in connection with
mortgage defaults....Aldridge Connors’ comprehensive mortgage default
practice, includes, but is not limited to, residential and commercial
foreclosure
and
eviction
proceedings.”
See
http://aclawllp.com/about_us.html.
While this would likely be
insufficient to prove that defendant regularly attempts to collect
debt, it is sufficient to allow an inference that plaintiff might be
able to demonstrate that fact after discovery.
2
AO 72A
(Rev.8/82)
Having correctly predicted that the Court might conclude that
the plaintiff has sufficiently alleged that defendant is a debt
collector, the magistrate judge went on to analyze the arguments
made by defendant in support of its motion to dismiss, and rejects
those arguments.
(Id. at 14-19.)
The Court agrees with the
magistrate judge’s reasoning and his alternative recommendation to
deny defendant’s motion to dismiss.
Accordingly,
the
Court
ADOPTS
the
Magistrate
Judge’s
alternative recommendation in his Report and Recommendation [8] and
DENIES defendant’s Motion to Dismiss [4]
SO ORDERED, this 23rd day of SEPTEMBER, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
3
AO 72A
(Rev.8/82)
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