Scheffler v. Alltran Financial, LP

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS - Magistrate Judge Leo I. Brisbois's August 13, 2018 Report and Recommendation (Doc. No. 29 ) is ADOPTED. Defendant Alltran Financial, LP's Motion to Dismiss (Doc. No. 9 ) is GRANTED. Plaintiff Troy K. Scheffler's Complaint (Doc. No. 1 ) is DISMISSED WITHOUT PREJUDICE. (Written Opinion). Signed by Judge Donovan W. Frank on 1/3/2019. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Troy K. Scheffler,

Civil No. 18-415 (DWF/LIB)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Alltran Financial, LP,
Defendant.

The above matter comes before the Court upon pro se Plaintiff Troy K. Scheffler’s
Objection (Doc. No. 31) to the Report and Recommendation of United States Magistrate
Judge Leo I. Brisbois dated August 13, 2018 (Doc. No. 29) insofar as it recommends that
Defendant Alltran Financial, L.P.’s Motion to Dismiss be granted and Plaintiff’s
Complaint be dismissed without prejudice. 1 Defendant responded to Plaintiff’s
opposition on September 19, 2018. (Doc. No. 34.)
The factual background for the above-entitled matter is clearly and precisely set
forth in the Report and Recommendation and is incorporated by reference. In the Report
and Recommendation, the Magistrate Judge explained that: (1) the voicemails at the
heart of Plaintiff’s Complaint, which included only the name of the caller, the name of
the debt collection company, the fact that the call was from a debt collector, and a
callback number, were not “communications” under the FDCPA; (2) Plaintiff’s claim

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Plaintiff requested oral argument with respect to his filed objection. The Court,
however, is prepared to issue this Order without such an argument as the matter has been
sufficiently presented on the papers.

under Minnesota Statute § 323.37 fails because that statute does not provide a private
right of action; (3) to the extent that Plaintiff asserts a claim under 15 U.S.C. § 1692e(14)
for failing to use the “LP” in identifying itself as Alltran Financial, that claim fails
because a reasonable mind could not conclude that such a failure was materially
deceptive, misleading, or unfair, even to an unsophisticated consumer; and (4) Plaintiff’s
claim under 15 U.S.C. § 1692c(b) for leaving voicemails on Plaintiff’s cell phone fails
because this was not a “third-party communication” as contemplated and prohibited by
the statute. Plaintiff objects to the Magistrate’s Report and Recommendation, arguing
that the Magistrate Judge improperly relied exclusively on Zortman v. J.C. Christensen &
Assoc., Inc., 870 F. Supp. 2d 694, 705 (D. Minn. 2012), Zortman is distinguishable from
the present case, and the voicemail at issue was a “communication.” In addition,
Plaintiff argues that Minnesota Statute § 323.37 does allow for a private right of action
and Defendant violated it by not reciting its name on the voicemail.
The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of the parties, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). After careful review of the Plaintiff’s objections, the Court finds no reason
to depart from the Magistrate Judge’s recommendation.

Based upon the Report and

Recommendation of the Magistrate Judge and upon all of the files, records, and
proceedings herein, the Court now makes and enters the following:

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ORDER
1.

Magistrate Judge Leo I. Brisbois’s August 13, 2018 Report and

Recommendation (Doc. No. [29]) is ADOPTED.
2.

Defendant Alltran Financial, LP’s Motion to Dismiss (Doc. No. [9]) is

GRANTED.
3.

Plaintiff Troy K. Scheffler’s Complaint (Doc. No. [1]) is DISMISSED

WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

January 3, 2019

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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