Asiel-Dey v. Santander Consumer USA, Inc. et al

Filing 16

ORDER granting 10 Motion to Dismiss. Defendant SC's motion to dismiss is granted due to Plaintiff's failure to state a claim upon which relief can be granted. Should Plaintiff wish to proceed forward with this case, Plaintiff shall file his amended complaint by the close of business on March 15, 2018. Signed by Chief Judge J. Randal Hall on 02/22/2018. (thb)

IN THE UNITED
FOR THE

STATES DISTRICT

COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

MIN.

NEGUS

KWAME

FAHIM

*

ASIEL-DEY,

*

Plaintiff,

*

v.

*

SANTANDER CONSUMER USA,

INC.,

CV

117-006

*

Defendant.

*

ORDER

Plaintiff,1

January

11,

proceeding

2017.

(Doc.

pro

1.)

se,

initiated

In his

this action

complaint,

on

Plaintiff

alleges violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq.

USA, Inc.

("SC").

("FDCPA") by Defendant Santander Consumer

While Plaintiff's factual allegations are not

a model of clarity, he appears to assert that Defendant SC sent
him letters on December

these

FDCPA.2

letters

and/or

(Id. II 3,

1,

2015 and January 12, 2016

their

6-7.)

contents

were

violation

of

the

On June 9, 2017, Defendant SC filed

1 Plaintiff is also known as Ronnie Theodis Demmons.

2 In his complaint,

in

and that

(See Doc. 1, at 4.)

Plaintiff also alleged various state and federal 1

aw

claims against another defendant, Verley Matthew Craps.
(Doc. 1, 11 4-5.)
On April 21, 2017, the United States Magistrate Judge entered an Order in
which he directed Plaintiff to explain his failure to timely serve Defendant

Craps.
(Doc. 5.)
On May 8, 2017, Plaintiff filed his response to the
Magistrate Judge's Order, in which he stated tnat he sent Defendant Craps a
waiver of service form on April 11, 2017 and requested additional time to

serve Defendant Craps.

(Doc. 8.)

On May 19, 2017, the Magistrate Judge

its

present

complaint

motion

failed

granted.

to

to

(Doc.

dismiss

state

10.)

a

on

the

claim

Plaintiff

grounds

upon
did

that

which

not

Plaintiff's

relief

file

be

response

a

could

in

opposition to Defendant SC's motion to dismiss.

In
Civil

of

considering

Procedure

the

prevail
(1974) .

complaint
most

312

the

not

merits.

the

to

dismiss

Court

whether

tests

the

Scheuer

v.

under
the

Federal
legal

plaintiff

Rhodes,

of

sufficiency

will

416

Rule

ultimately

U.S.

232,

236

The Court must accept as true all facts alleged in the

and construe

favorable

F.3d

motion

12(b)(6),

complaint,

on

a

to

1222,

the

1225

all

reasonable

plaintiff.

(11th

Cir.

inferences

See

in the

Hoffman-Pugh

2002).

v.

Conversely,

light

Ramsey,

the

Court

need not accept the complaint's legal conclusions as true - only

its well-pleaded facts.

Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009).

"To

survive

a

motion to dismiss,

sufficient factual matter,

a

complaint must

accepted as true,

to relief that is plausible on its face.'"

to

contain

'state a claim

Id. at 678

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

(quoting
"A claim

granted Plaintiff until June 19, 2017 to serve Defendant Craps and explicitly
warned Plaintiff that his failure to timely serve Defendant Craps would
result in a recommendation that Defendant Craps be dismissed from this case.

(Doc. 9.)
Plaintiff failed to provide the Court with proof of service on
Defendant Craps or otherwise explain the failure of service thereon.
(See
Doc. 11, at 2.) Accordingly, on June 26, 2017, the Magistrate Judge entered

his Report and Recommendation ("R&R") wherein he recommended that Plaintiff's
claims against Defendant Craps be dismissed without prejudice. (Id^ at 2-3.)
Plaintiff did not file any objections to the •R&R.

(See Doc.

13,

at 1.)

Accordingly, on July 17, 2017, the Court adopted the R&R as its opinion,
dismissed Plaintiff's claims against Defendant Craps for failure to timely
effect service, and dismissed Defendant Craps from this case.
(Id. )
2

has

facial

content

that

plausibility

that

the

allows

defendant

the

is

when
court

liable

U.S.

the
to

draw

for

at

plaintiff

the

566).

the

pleads

reasonable

misconduct

(citing Twombly,

550

"The

is not akin to a

^probability requirement,'

factual
inference

alleged."

plausibility

Id.

standard

but it asks for more

than a sheer possibility that a defendant has acted unlawfully."
Id.

And

"[w]hile

standards

judge
permit

trial

assessing pro

in

the

a

final

product

judge

is

to

employ

se pleadings

of

lawyers,

than

this

stringent

would be

leniency

the district court to act as counsel

rewrite deficient pleadings."

less

used to

does

not

for a party or to

Lampkin-Asam v. Volusia Cty. Sch.

Bd. , 261 F. App'x 274, 276-77 (11th Cir. 2008); see also Moon v.
Newsome,

863

F.2d

835,

regardless of wealth,
courts.

837

(11th

Cir.

1989)

("All

persons,

are entitled to reasonable access to the

. . . Still, once a pro se . . . litigant is in court,

he is subject to the relevant law and rules of court, including
the

Federal

Letters
2000)

to

Rules

Fed.

("[C]ourts

litigants

not

education.

of

Civil

Judges,
do

120

and

Procedure.");

F.

Supp.

should

show

2d
a

In

1073,

even

in

the

case

of

Unsolicited

1074

lenience

enjoyed by those with the

Yet

re

pro

benefit
se

(S.D.
to

Ga.

pro

se

of a legal

litigants

this

leniency does not give a court license to serve as

de

counsel

deficient

for

a

party,

or to

rewrite

an

otherwise

facto

pleading in order to sustain an action." (citations omitted)).

Here,

Plaintiff

relief under the

a

plausible

has

failed

to

state

a

FDCPA against Defendant SC.

claim

for

relief

under

the

v.

Ellis,

prior

2012);

consent

collector

or

Ratterree

see also

of
the

jurisdiction,

a

the

& Adams,

consumer

express

debt

collector

678

directly

of

may

a

not

See Reese

F.3d 1211,

§ 1692c(a)

given

permission

of

Plaintiff must allege,

LLP,

15 U.S.C.

for

provisions

"that the defendant is a debt collector."

Painter,

(11th Cir.

claim

In order to state

relevant

the FDCPA cited in Plaintiff's complaint,
inter alia,

plausible

1216

("Without the

to

the

of

competent

court

communicate

consumer in connection with the collection of any debt

debt

with

a

. . . ."

(emphasis added)); 15 U.S.C. § 1692e ("A debt collector may not
use any false,

deceptive,

or misleading representation or means

in

with

collection

connection

added));
initial

15

U.S.C.

the

§

communication

collection

1692g(a)
with

of any debt,

a

of

any

("Within

consumer

a debt

debt."

five

in

(emphasis

days

after

the

with

the

unless

the

connection

collector

shall,

following information is contained in the initial communication
or the consumer has paid the debt,

send the consumer a written

notice containing . . . ." (emphasis added)).

The FDCPA defines

a "debt collector" as "any person who uses any instrumentality
of

interstate

commerce

or

the

mails

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

another."

15

owed

U.S.C.

or

§

due

1692a(6).

of "debt collector," however,

or

asserted

to

be

owed

Excluded from this

or

due

definition

is:

(A) any officer or employee of a creditor while, in
the name of the creditor, collecting debts for such
creditor;
(B)
any person while acting as
a debt
collector for another person, both of whom are related
by
common
ownership
or
affiliated
by
corporate

control, if the person acting as a :debt collector does
so only for persons to whom it i is so related or
affiliated and if the principal business of
such

person is not the collection of debts; (C) any officer
or employee of the United States or any State to the
collect

any

debt is in the performance of his official duties;

extent

that

collecting

or

attempting

to

(D)

any person while serving or attempting to serve legal
process on any other person in connection with the
judicial enforcement of any debt; (E) any nonprofit
organization which,
at the request
of consumers,
performs bona fide consumer credit counseling and
assists consumers in the liquidation of their debts by

receiving
payments
from
such
consumers
and
distributing such amounts to creditors; and (F) any
person collecting or attempting to collect any debt
owed or

due

or

asserted to be

owed or

due

another to

the extent such activity (i) is incidental to a bona
fide fiduciary obligation or a bona
fide escrow

arrangement; (ii) concerns a debt which was originated
by such person; (iii) concerns a debt which was not in
default at

(iv)

the time it was obtained by such person;

concerns

secured

party

a

debt

in

a

obtained

by

commercial

such

credit

person

or

as

a

transaction

involving the creditor.

Id. ; but
clause

(F)

see id.
of the

("Notwithstanding

the exclusion

provided

last sentence of this paragraph,

by

the term

includes any creditor who, in the process of collecting his own

debts,

uses any name other than his own which would indicate

that a third person is collecting or attempting to collect such
debts.").

In

his

complaint,

"[t]o the best of
. . is a debt

."

any

Iqbal,

true

1,

of

at

the

inapplicable

to

elements

a

of

statements,

SI

belief and information,

3.)

factual

556 U.S.

all

Notably,

support

678

for these

allegations

legal
cause

however,

alleges

[Defendant SC]
§

1692(a)(6)

Plaintiff

legal

that,
.

. .

does

not

conclusions.

See

("[T]he tenet that a court must accept as

contained

conclusions.
of

action,

do not suffice."

Papasan v.

conclusorily

collector as defined in 15 U.S.C.

(Doc.

provide

[his]

Plaintiff

Allain, 478 U.S.

in

a

Threadbare

supported

complaint

recitals

by

mere

is

of

the

conclusory

(citing Twombly,

550 U.S. at 555));

265,

("Although for the

286 (1986)

purposes of this motion to dismiss we must take all the factual
allegations in the complaint as true, we are not bound to accept
as true a legal conclusion couched as a factual allegation.").
For

example,

Defendant

SC

Plaintiff

does

attempted to

creditor for these debts,

not

describe

collect,3

the

debts

identify the

originating

or state whether these debts

default at the time they were obtained by Defendant SC.
Plaintiff

engages

does

in

collection

not

even

"business
of

any

conclusorily

the

debts"

principal
or that

allege

that

purpose

of

that

were

Indeed,

Defendant

which

it ; "regularly

in

is

collects

SC

the
or

3 Such description would be necessary to ensure that they are in fact "debts"
cognizable under the FDCPA. See 15 U.S.C. § 1692a(5) ("The term *debt^ means

any obligation or alleged obligation of a consumer to pay money arising out

of a transaction in which the money, property, |insurance, or services which
are the subject of the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has been reduced to
judgment.") .

attempts
or

to

collect,

asserted

1692a(6).

to

Defendant

his

SC

the

owed

is

misconduct

indirectly,

debts

another."

See

Plaintiff

indeed

from

a

content

inference

alleged"

and

his

ORDERED

GRANTED

the

that

due

foregoing
Defendant

to

and
SCs

Plaintiff's

relief can be granted.

Court

or

Plaintiff
would

infer

failed

§

that

liable

to

Court

is

due

relevant

otherwise

this

SC]

or

U.S.C.

any

can

has

allow

[Defendant

claims

is

owed
15

attached

the

collector

that

that

not

which

debt

therefore subject to dismissal.
Upon

has

Accordingly,

factual

reasonable

or
due

or

complaint

FDCPA.

sufficient

the

be

Moreover,

exhibits

under

to

directly

plead

"to

draw

for

the

Defendant

against

liable

SC

are

See Iqbal, 556 U.S. at 678.
due

consideration,

motion

failure

to

to

dismiss

state

a

IT

IS

(doc.

HEREBY
10)

is

claim upon which

The Court, however, recognizes Plaintiff

is proceeding pro se and will therefore give him an opportunity

to

attempt

complaint

to
with

cure

his

regards

FURTHER ORDERED that,

with this

case,

pleading deficiencies
to

Defendant

SC.

by amending his

Accordingly,

IT

IS

should Plaintiff wish to proceed forward

Plaintiff SHALL FILE his

the close of business on MARCH 15, 2018.4

amended complaint by

Plaintiff's failure to

4 Plaintiff's amended complaint must be typed or printed legibly so that the

Court may discern Plaintiff's claims, and it will supersede and replace in
its entirety the previous pleadings filed by Plaintiff; no portion of any
prior pleading shall be incorporated into his amended complaint by reference.
See Hoeflinq v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016); Lowery
v. Alabama Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007) ("an amended

complaint supersedes the initial complaint and becomes the operative pleading
in the case"). While Plaintiff may attach exhibits to his amended complaint,
he shall not incorporate them by reference as a means of providing the

timely

file

deficiencies
dismissal
and the

his

amended

identified

with

closure

ORDER ENTERED
February,

herein

prejudice
of

this

at

complaint

of

case

as

his
-

and

directed

claims

without

Augusta,

address
may

result

against

further

Georgia,

the

pleading
in

Defendant

the
SC

-

notice.

this

j^^^K day

of

2018.

hall;
states

chief judge

district

court

soutj/ern district of georgia

factual basis for his pleading.

For example,

Plaintiff should not simply

state, "see attached documents," as the Court will not independently examine
exhibits

that Plaintiff does not specifically reference

page number) in his amended complaint.

(by the exhibit's

Moreover, Plaintiff shall submit only

one amended complaint in accordance with the terms of this Order.

Therefore,

Plaintiff shall state in the single amended complaint filed in accordance
with the terms of this Order all claims that he wishes the Court to consider
as a basis for awarding the relief sought.
8