Eason v. Covington Credit
Filing
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OPINION AND ORDER adopting Magistrate Judge Catherine M. Salinas' Non-Final Report and Recommendation 11 and granting Defendant's Motion for Partial Dismissal of Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) 5 . Plaintiff's alleged violations of the FDCPA and FBPA are dismissed. Signed by Judge William S. Duffey, Jr on 10/13/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICKY EASON,
Plaintiff,
v.
1:17-cv-1830-WSD-CMS
COVINGTON CREDIT,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Catherine M. Salinas’
Non-Final Report and Recommendation (“Non-Final R&R”) [11] on Defendant
Covington Credit’s (“Defendant”) Motion for Partial Dismissal of Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(6) [5] (“Motion for Partial
Dismissal”).
I.
BACKGROUND
On May 19, 2017, Plaintiff Ricky Eason (“Plaintiff”) filed this action
asserting claims for violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii); the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692d(5); and the Georgia Fair Business Practices Act
(“FBPA”), O.C.G.A. § 10-1-393(a). (Complaint [1] at 1). Plaintiff alleges that on
September 23, 2016, he received a phone call on his cellular phone from Defendant
attempting to collect a debt relating to a Covington Credit personal loan.
(Compl. ¶¶ 12, 14). Plaintiff alleges that at that time he verbally advised
Defendant to stop calling his cellular phone and revoked any prior express consent
to contact Plaintiff via cellular phone or any other form of communication.
(Compl. ¶¶ 14-15).
Plaintiff claims that from September 23, 2016 through the filing of his
Complaint on May 19, 2017, Defendant continued to call Plaintiff’s cellular phone
up to four times per day, despite Plaintiff’s express revocation of consent to be
contacted. (Compl. ¶¶ 16, 19-20, 28). Plaintiff argues that he did not initiate any
communication, that Defendant used an automatic telephone dialing system and/or
artificial or pre-recorded voice to contact him, and that some of the calls included
delays in time before the call was transferred to a live representative.
(Compl. ¶¶ 23-24).
On June 14, 2017, Defendant filed its Motion for Partial Dismissal, under
Fed. R. Civ. P. Rule 12(b)(6), arguing that Plaintiff’s claims relating to violations
of the FDCPA and FBPA should be dismissed for failure to state a claim.
([5] at 1). On June 28, 2017, Plaintiff filed his Opposition to Defendant’s Motion
for Partial Dismissal [6] (“Response”) in which he conceded that his claim for
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violations of the FDCPA should be dismissed but that his claim relating to
violations of the FBPA are viable.
On September 21, 2017, the Magistrate Judge issued her Non-Final R&R
and recommended granting Defendant’s Motion for Partial Dismissal. Plaintiff
does not object to the Non-Final R&R.
II.
LEGAL STANDARD
A.
Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.”
Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)).
The Court also is not required to accept as true conclusory allegations and legal
conclusions. See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th
Cir. 2010) (construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)); see also White v. Bank of America, NA,
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597 F. App’x 1015, 1018 (11th Cir. 2014) (“[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will not prevent
dismissal.”) (quoting Oxford Asset Mgmt., Ltd. V. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002)).
“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.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly,
550 U.S. at 570).1
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Federal Rule of Civil Procedure 8(a)(2) requires the plaintiff to state “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). In Twombly, the Supreme Court recognized the liberal
minimal standards imposed by Federal Rule 8(a)(2) but also acknowledged that
“[f]actual allegations must be enough to raise a right to relief above the speculative
level . . . .” Twombly, 550 U.S. at 555.
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B.
Standard of Review on a Magistrate Judge’s R&R
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied,
459 U.S. 1112 (1983). A district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings
and recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Petitioner did not file
objections to the R&R, and the Court thus reviews it for plain error.
III.
DISCUSSION
A.
Analysis
The FBPA provides a private right of action to a “party who suffers injury or
damages as a result of ‘[u]nfair or deceptive acts or practices in the conduct of
consumer transactions and consumer acts or practices in trade or commerce.’”
Henderson v. Gandy, 623 S.E.2d 465, 467 (Ga. 2005) (quoting O.C.G.A.
§ 10-1-393); Kinzy v. Wells Fargo Bank, N.A., 1:13-CV-357-CAP, 2013 WL
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12068984, at *2 (N.D. Ga. Nov. 4, 2013). To state a claim for a violation of the
FBPA, a plaintiff must allege that the defendant engaged in deceptive or unfair
practices that have the potential to harm the general consuming public. Friedlander
v. PDK Labs, Inc., 59 F.3d 1131, 1132 (11th Cir. 1995).
The Magistrate Judge found that Plaintiff’s Complaint failed to sufficiently
allege the requisite element of deceptive or unfair practices. ([11] at 6). The
Magistrate Judge stated in her Non-Final R&R that “[w]hile Plaintiff [] certainly
alleged that the calls were annoying, he [did] not allege[] that they were also
deceptive or unfair.” (Id.). The Magistrate Judge also held that the FBPA does not
apply in this situation since the Defendant’s alleged conduct—harassing calls to a
cellular phone—is sufficiently regulated by the TCPA. (Id.; see also Chancellor v.
Gateway Lincoln-Mercury, Inc., 502 S.E.2d 799, 805 (Ga. Ct. App. 1998) (“The
General Assembly intended the Georgia FBPA have a restricted application only to
the unregulated consumer marketplace and that [the] FBPA not apply in regulated
areas of activity, because regulatory agencies provide protection or the ability to
protect against the known evils in the area of the agency’s expertise.”).
The Court finds no error with the findings and recommendations in the
Magistrate Judge’s Non-Final R&R.
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IV.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Catherine M. Salinas’
Non-Final Report and Recommendation [11] is ADOPTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Partial
Dismissal of Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) [5] is
GRANTED and Plaintiff’s alleged violations of the FDCPA and FBPA are
DISMISSED.
SO ORDERED this 13th day of October, 2017.
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