Coleman v. Northland Group, Inc.

Filing 18

MEMORANDUM AND ORDER re: 12 ORDERED that the Motion to Dismiss [Doc. No. 12] is granted. FURTHER ORDERED that Plaintiff is given 14 days within which to file an Amended Complaint. ( Response to Court due by 9/4/2014.). Signed by District Judge Henry Edward Autrey on 8/21/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMIE L. COLEMAN,

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Plaintiff,
v.
NORTHLAND GROUP, INC.,
Defendant.

Case No.: 4:13CV2459 HEA

MEMORANDUM AND ORDER
This matter is before the court on Defendant’s Motion to Dismiss, [Doc. No.
12]. For the reasons set forth below, the motion is granted.
FACTS AND BACKGROUND
This consumer-protection dispute arises out of certain collection letters received
by Plaintiff regarding her credit card debt at J.C. Penney. Plaintiff alleges that she
received collection letters from Defendant in an attempt to collect the unpaid credit
card debt. According to Plaintiff, she received at least five letters from Defendant
over the course of the year 2013. Plaintiff claims that none of the letters disclosed
that interest was accruing on her debt. The debt which Plaintiff claims to owe is
$300, whereas, the letters she received reflected balances of over $700, increasing
with each later letter. Plaintiff alleges she telephoned Defendant regarding the
increasing amount and was advised that the reason the balance increased was the
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20% interest rate that was being assessed. Plaintiff’s single count petition1 claims
that the failure to advise Plaintiff of the assessment of interest on the debt and
failure to include safe harbor language in the letters were violations of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692(d), (e) and (f). Defendant moves
to dismiss the FDCPA claim.
DISCUSSION
Standard of Review
To survive a motion to dismiss for failure to state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th
Cir.2009) (citations and internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff [has pleaded] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). Although a complaint need not contain
detailed factual allegations, it must raise a right to relief above the speculative
level. See Twombly, 550 U.S. at 555. “[L]abels and conclusions or a formulaic
recitation of the elements of a cause of action” are not sufficient to state a claim.
Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted).
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Plaintiff’s suit was originally filed in the Circuit Court of Jefferson County, Missouri and was removed to this
Court based upon the Court’s federal question jurisdiction.

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The court does not consider matters outside the pleadings under Rule 12(b)(6).
See Fed.R.Civ.P. 12(d). The court, however, may consider matters of public
record and materials that do not contradict the complaint, as well as materials that
are “necessarily embraced by the pleadings.” See Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir.1999) (citations and internal quotation marks
omitted).
FDCPA
Plaintiff alleges Defendant violated the FDCPA by failing to include in the
letters that interest was accruing and the safe harbor language recommended by the
Seventh Circuit for validation notices. Miller v. McCalla, Raymer, Padrick, Cobb,
Nichols, and Clark, LLC., 214 F.3d 872, 876 (7th Cir. 2000). “A violation of the
FDCPA is reviewed utilizing the unsophisticated-consumer standard which ...
protects the uninformed or naive consumer, yet also contains an objective element
of reasonableness to protect debt collectors from liability for peculiar
interpretations of collection [attempts].” Strand v. Diversified Collection Serv.,
Inc., 380 F.3d 316, 317–18 (8th Cir.2004) (citations and internal quotation marks
omitted). “The unsophisticated consumer test is a practical one, and statements that
are merely susceptible of an ingenious misreading do not violate the FDCPA.”
Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1056 (8th Cir.2002) (citations
and internal quotation marks omitted).
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Plaintiff argues that Defendant’s Motion is a premature attempt at summary
judgment which impermissibly challenges the merits of her claims. Plaintiff
claims that the February 2013 letter, which Defendant submits in support of its
motion, was not received by Plaintiff and that she intends to establish that it is
“dubious” that the letter was sent.2 Plaintiff disputes the authenticity of the letter.
Accordingly, the Court cannot, under the Federal Rules of Civil Procedure
construe Defendant’s submission of the February 2013 letter as “necessarily
embraced by the pleadings.” Porous Media, 186 F.3d at 1079.
Notwithstanding, Plaintiff’s Petition fails to notify Defendant the precise section
of the FDCPA which Plaintiff contends has been violated. While Plaintiff admits
in her response that she is challenging Defendant’s actions under Section
1692e(2)(A), the Petition fails to so specify, leaving Defendant questioning which
provisions of the FDCPA Plaintiff actually contends were violated. As such, the
Petition does not satisfy Rule 12(b)(6) requirements.
Moreover, Section 1692e(A) provides that a “debt collector may not use any
false, deceptive, or misleading representation or means in connection with the
collection of any debt, [including]. . .[t]he false representation of the character,
amount, or legal status of any debt.” The false statement, however, must be
material in order to be actionable under the FDCPA. Camarena v. Wells Fargo
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With this statement in mind, the Court reminds counsel of the provisions of Rule 11 of the Federal Rules of Civil
Procedure.

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Bank, N.A., 2014 WL 4055631, 1 -2 (D.Minn. 2014). Representations are material
if they “frustrate a consumer's ability to intelligently choose his or her response.”
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir.2010) (citation
omitted). Here, Plaintiff has not pleaded that any misrepresentation affected her
ability to intelligently choose her response. For this additional reason, dismissal of
the FDCPA claim is warranted.
CONCLUSION
Based upon the foregoing, the Court concludes that Plaintiff’s Petition fails to
satisfy Twombly and Iqbal.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss [Doc. No. 12] is
granted.
IT IS FURTHER ORDERED that Plaintiff is given 14 days within which to
file an Amended Complaint.
Dated this 21st day of August, 2014.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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