Rivera v. Louisiana Recovery Services, Inc.

Filing 12

RULING denying 5 Motion to Dismiss.. Signed by Judge James J. Brady on 2/17/2012. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DWIGHT RIVERA
CIVIL ACTION
VERSUS
NO. 11-CV-663
LOUISIANA RECOVERY SERVICES, INC.
RULING ON MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed by Defendant,
Louisiana Recovery Services, Inc. (“LRS”). (Doc. 5). Plaintiff Dwight Rivera
(“Rivera”) filed an opposition. (Doc. 7). LRS did not file a reply. The Court has
jurisdiction under 15 U.S.C. 1692k(d).

For the following reasons, the motion is

DENIED.
This suit arises under the Fair Debt Collection Practices Act (“FDCPA” or
“the Act”).

Defendant is a debt collection agency.

Plaintiff’s wife allegedly

incurred a bill for medical services. Rivera does not mention the nature of the
debt in his Complaint, nor does he refer to Regina Rivera—who LRS claims is his
wife. He only mentions her in his brief in order to restate LRS’s allegation. At a
certain point, it appears this bill was then turned over to LRS for collection.
Thereafter, Plaintiff contends he was subjected to repeated calls at home
demanding payment of the debt, approximately three calls per day. (Doc. 1 at 2).
Rivera claims he asked LRS to stop calling, but LRS did not stop. He then
brought suit under the FDCPA alleging “conduct the natural consequence of

which is to annoy, harass and oppress” him through the repeated phone calls.
Id. at 2-3. LRS brought this motion, claiming Rivera does not have standing to
bring his suit as he is not a “consumer” as defined by the statute and has not
properly alleged he is responsible for the debt at issue.
Rule 12(b)(6) provides for dismissal for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). In reviewing the complaint, courts
accept all well-pleaded facts in the complaint as true. C.C. Port, Ltd. v. DavisPenn Mortg. Co., 61 F.3d 288, 289 (5th Cir. 1995). Courts do not, however,
accept as true all legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). Instead, “the complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Id. (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That is, a plaintiff must
provide sufficient factual content for the court to reasonably infer that the plaintiff
is entitled to relief based upon the context of the case and the court’s “judicial
experience and common sense.” Id. at 1949-50. Courts, therefore, must first
identify the conclusory allegations, which do not receive a presumption of truth,
and then determine whether the remaining factual allegations plausibly give rise
to an entitlement of relief. Id. at 1950. Courts may consider not only the complaint
itself, but also documents attached to the complaint or documents incorporated
into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

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U.S. 308, 322-23 (2007). The facts in the complaint are viewed collectively, not
scrutinized in strict isolation. Id.
The purpose of the FDCPA is to “eliminate abusive debt collection
practices by debt collectors . . . and to protect consumers against debt collection
abuses. “ 15 U.S.C. § 1692(e). “Consumer” is defined as “any natural person
obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3). Further,
the Act provides for civil liability for “any debt collector who fails to comply with
any provision of this subchapter with respect to any person . . . .” 15 U.S.C. §
1692k(a) (emphasis added). One of the provisions of the subchapter provides
that debt collectors may not cause “a telephone to ring or engage[] any person in
telephone conversation repeatedly or continuously with intent to annoy, abuse, or
harass any person at the called number.”

15 U.S.C. § 1692d(5) (emphasis

added).
The Court need not determine at this time whether or not Rivera is a
consumer as defined by the statute. That is because the Court finds the plain
language of the statute clearly provides relief for any person who is subjected to
the abusive debt collection practices proscribed by the Act. This finding is in
accord with the case law from the circuits that have faced this question. See
Meadows v. Franklin Collection Service, Inc., 414 Fed. Appx. 230 (11th Cir.
2011) (allowing claim by debtor’s mother to survive summary judgment); Baker v.

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G.C. Services Corp., 677 F.2d 775, 777 (9th Cir. 1982) (plaintiff has standing
“whether or not he owes the debt”).
Turning to the Complaint and the attached call logs, the Court finds Rivera
has stated a claim upon which relief can be granted.

The Court finds the

following well pleaded facts are entitled to the presumption of truth: LRS is a debt
collection agency; LRS calls Rivera’s home number every day, up to three times
a day; LRS makes the calls from the same Lafayette number; LRS is seeking to
collect a debt. The Court agrees with LRS that the blank call logs attached are of
no value.

When granted the presumption of truth for purposes of this motion

only, the Court finds that from these facts it is plausible that Rivera could recover
under the statutory provisions discussed above. Upon these facts, it is plausible
that the trier of fact could find the intent of LRS in making these calls was to
harass, annoy, or abuse Rivera. Therefore, the motion to dismiss is denied.
CONCLUSION
For these reasons, the Defendant’s motion (doc. 5) is DENIED.
Signed in Baton Rouge, Louisiana, on February 17, 2012.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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