Brown v. Apoian

Filing 20

ORDER DENYING Defendants' Motion to Dismiss [Doc. 9]. Signed by Judge Staci M. Yandle on 1/4/2016. (mah).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

MARY C. BROWN,

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Plaintiff,
vs.
H. GARY APOIAN, ATTORNEY AT
LAW INDIVIDUALLY AND D/B/A
APOIAN LAW GROUP, LLC AND
APOIAN, ROSS & FUNK, P.C.,

Case No. 15-CV-695-SMY-DGW

Defendants.

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff filed suit against Defendants H. Gary Apoian, Attorney at Law individually and
d/b/a Apoian Law Group, LLC and Apoian, Ross & Funk (“Defendants”) pursuant to the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Defendants now move to
dismiss Plaintiff’s Complaint (Doc. 9). For the following reasons, the motion is DENIED.
In the three paragraph motion to dismiss, Defendants assert that they had no prior
knowledge of nor involvement in the conduct alleged in Plaintiff’s Complaint. Specifically,
Defendants assert that they never attempted to collect money from Plaintiff and that Defendants
are not corporate or in house counsel to a collection agency (Doc. 9). The motion cites no rules,
statutes or any other authority supporting dismissal. However, the Court construes Defendants’
motion as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal of Civil Procedure.
When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court accepts as true all facts alleged in the complaint and construes all
reasonable inferences in favor of the plaintiff.

Savory v. Lyons, 469 F.3d 667, 670 (7th

Cir.2006). To state a claim upon which relief can be granted, a complaint must contain a “short
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and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “Detailed factual allegations” are not required, but the plaintiff must allege facts that
when “accepted as true ... state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “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, 129
S.Ct. 1937.
Here, Plaintiff’s Complaint alleges that she incurred a consumer debt and fell behind on
payments, that the original creditor hired Defendants to collect the debt and that Defendants sent
a dunning letter that violated the FDCPA through its debt collection efforts (see Doc. 1).
Drawing inferences in Plaintiff’s favor, her allegations are sufficient to meet Rule 8's liberal
pleading requirements. Dismissal for failure to state a claim is proper only if the plaintiff can
prove no set of facts in support of her claims which would entitle her to relief. Here, there are
sufficient factual allegations in Plaintiff’s Complaint to allow her FDCPA claim to proceed
against the Defendants. Accordingly, Defendants’ motion to dismiss is DENIED.
IT IS SO ORDERED.
DATED: January 4, 2016

s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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