Kopp v. Consumer Adjustment Company, Inc. et al

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's First Amended Complaint (#11), filed without leave of court, is stricken from the record. IT IS FURTHER ORDERED that defendants Motion to Dismiss (#9) is GRANTED. IT IS FINALLY ORDERED THAT Plaintiff's Complaint (#1) is DISMISSED with prejudice. Signed by District Judge Stephen N. Limbaugh, Jr on 2/6/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TYSON KOPP,
Plaintiff,
v.
CONSUMER ADJUSTMENT COMPANY,
INC. and ROGER WEISS,
Defendants.

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Case No. 4:13CV2196 SNLJ

MEMORANDUM AND ORDER
Plaintiff filed this lawsuit alleging defendants violated the Fair Debt Collection Practices
Act (FDCPA). Defendants filed a motion to dismiss (#9) arguing that the allegations made by
plaintiff in his complaint do not constitute violations of the FDCPA. Plaintiff did not file a
response to the motion and the time for doing so has expired.
As a preliminary matter, this Court notes that after the time for filing a response to the
motion to dismiss had expired, plaintiff filed an untimely first amended complaint (#11) without
leave of court as required under Federal Rule of Civil Procedure 15(a). Plaintiff’s first amended
complaint does not address the issues raised in the motion to dismiss, but instead, makes new
allegations under the Fair Credit Reporting Act. Plaintiff’s first amended complaint, filed
without leave of court, shall be stricken from the record. The Court will proceed to take up the
motion to dismiss, which is ripe for disposition.
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the
legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their
legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial
and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (quoting

Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). A complaint must be dismissed for failure to
state a claim if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). The Court must “accept the
allegations contained in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party.” Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting
Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)). However, “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)).
In his complaint, plaintiff alleges that defendants Consumer Adjustment Company, Inc.
and Roger Weiss violated § 1692g of the FDCPA because they did not provide plaintiff with an
initial communication before they reported a “negative entry on his credit.” Plaintiff further
alleges that this is a violation of § 1692d of the FDCPA because the “natural consequence [of
reporting] is to harass, oppress, or abuse [plaintiff].” Defendants argue plaintiff’s complaint
should be dismissed with prejudice because it fails to state a claim under the FDCPA.
Specifically, defendants maintain that they did not commit a FDCPA violation by reporting a
“negative entry” because they did not have an obligation to do so under § 1692(g) in the absence
of an initial communication, and they had a right to report plaintiff’s debt to a credit bureau.
Plaintiff alleges a violation of § 1692(g), which provides that “[w]ithin five days after the
initial communication with a consumer in connection with the collection of any debt, a debt
collector shall . . . send the consumer a written notice.” 15 USC § 1692(g)(a). Nowhere in
§ 1692(g) does it require the debt collector to have an initial conversation with a consumer. By
the clear language of this section, it only applies when the debt collector has already had an

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initial communication with the consumer. Id. Here, plaintiff’s complaint is that there was no
initial communication. As a result, § 1692(g) was not triggered and defendants’ action, or lack
thereof, did not violate that section of the FDCPA.
Additionally, plaintiff alleges that by “reporting a negative entry on his credit,”
defendants violated § 1692(d). Plaintiff pleads that defendants harassed, oppressed, and abused
him because that is the “natural consequence” of reporting a negative entry on a consumer’s
credit. The FDCPA prohibits actions against consumers by debt collectors that result in the
harassment or abuse of those consumers. 15 USC § 1692(d). That section identifies, without
limitation, actions that can be considered a violation. 15 USC § 1692(d)((1)-(6). Specifically,
one violation is “[t]he publication of a list of consumers who allegedly refuse to pay debts,
except to a consumer reporting agency . . . .” 15 USC § 1692(d)(3) (emphasis added). A debt
collector can report debts to a credit bureau unless “such reporting has been prohibited by the
creditor and the debt collector makes it appear that such reporting has in fact been authorized by
the creditor.” Campbell v. Credit Protection Ass’n, L.P., 4:12CV289 AGF, 2013 WL 1282348,
at *8 (E.D. Mo. March 27, 2013). Plaintiff alleges a violation simply by the reporting of the
“negative entry on his credit.” Simply reporting that debt to a credit bureau is not, absent other
allegations, a violation of § 1692(d). As a result, defendants’ reporting of the debt was not a
violation of §1692(d).
In sum, Plaintiff seeks relief from this Court based on alleged actions by defendants that,
even if presumed to be true, do not give rise to a cause of action under the FDCPA. Defendants
did not violate §1692(d) or § 1692(g) by reporting a “negative entry” to a credit bureau without
an initial communication with plaintiff.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s First Amended Complaint (#11), filed
without leave of court, is stricken from the record.
IT IS FURTHER ORDERED that defendants Motion to Dismiss (#9) is GRANTED.
IT IS FINALLY ORDERED THAT Plaintiff’s Complaint (#1) is DISMISSED with
prejudice.
Dated this 6th day of February, 2014.

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STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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