Schlattmann v. Portfolio Recovery Associates, LLC
MEMORANDUM AND ORDER re: 22 MOTION to Dismiss :Amended Complaint filed by Defendant Portfolio Recovery Associates, LLC, 24 MOTION to Compel filed by Plaintiff Robert Schlattmann. IT IS HEREBY ORDERED that defendant' ;s motion to dismiss (#22) is DENIED. IT IS FURTHER ORDERED that plaintiff's motion to compel is (#24) DENIED in part and GRANTED in part.IT IS FURTHER ORDERED that the motion to compel is granted with respect to Interrogatories 2, 3, 5, 6, 7, a nd 13, and Requests for Production 1, 2, 3, and 5. IT IS FURTHER ORDERED that the parties shall submit a proposed protective order as described herein. IT IS FINALLY ORDERED that the motion to compel is denied with respect to Interrogatories 8 and 10 and Requests for Production 8, 11, 12, and 17. Signed by District Judge Stephen N. Limbaugh, Jr on 2/16/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:16cv1183 SNLJ
MEMORANDUM AND ORDER
Plaintiff Robert Schlattmann brings this case under the Fair Debt Collection
Practices Act (“FDCPA”) and Telephone Consumer Protection Act (“TCPA”) against
defendant Portfolio Recovery Associates, LLC (“PRA”), alleging that PRA called him
more than 100 times for a debt that Schlattmann did not owe. Defendant moves to
dismiss Count II of plaintiff’s amended complaint (#22), and plaintiff moves to compel
certain discovery disclosures from defendant (#24). The motions have been fully briefed.
Motion to Dismiss (#22)
Defendant has moved to dismiss plaintiff’s Count II for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). 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 deigned 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) (citing Neitzke v. Williams, 490
U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim must be facially
plausible, meaning that the ‘factual content. . . allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Cole v. Homier Dist.
Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The Court must “accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the nonmoving party.” Id. (quoting Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)). However, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” will not pass
muster. Iqbal, 556 U.S. at 678.
Plaintiff alleges that defendant began calling plaintiff’s residential telephone
number, ending in -8996, from several different telephone numbers on December 1,
2014. The phone calls continued through June 11, 2016 and totaled over one hundred in
number; however, the defendant’s phone calls were allegedly intended to collect on a
debt that plaintiff did not owe. Plaintiff alleges that he never entered into an agreement
by which he consented to be contacted by telephone by defendant, and he did not have a
preexisting or current business relationship with defendant.
Plaintiff’s Count II claims that defendant’s conduct violated the TCPA, 47 U.S.C.
§ 227, et seq. and 47 C.F.R. 61.1200, et seq., by knowingly and willfully placing nonemergency prerecorded telephone calls to plaintiff’s phone without express authorized
consent of plaintiff, without an established business relationship, and without an
exemption and/or without a commercial purpose in violation of 47 U.S.C. §
Defendant moves to dismiss Count II because it says its actions were exempted
from the TCPA provision relied upon by plaintiff. The TCPA provision prohibits
initiating “any telephone call to any residential telephone line using an artificial or
prerecorded voice to deliver a message without the prior express consent of the called
party, unless the call is initiated for emergency purposes, is made solely pursuant to the
collection of a debt owed to our guaranteed by the United States, or is exempted by rule
or order by the [Federal Communications] Commission under paragraph (2)(B).” 47
U.S.C. § 227(b)(1)(B). Paragraph (2)(B) provides that the “Commission shall prescribe
regulations to implement the requirements of this subsection,” and the Commission’s
regulations provide that § 227(b)(1)(B) does not apply to a call if it is “made for a
commercial purpose but does not include or introduce an advertisement or constitute
telemarketing.” 47 C.F.R. § 64.1200(a)(3)(iii). Numerous other courts have held that
this regulation exempts collection calls made to non-debtors because they are commercial
calls that do not include an unsolicited advertisement. See Hoover v. Monarch Recovery
Mgmt., Inc., 888 F. Supp. 2d 589, 604 (E.D. Pa. 2012); Vandiver v. Glob. Credit &
Collection Corp., Inc., 4:14-CV-00011 KGB, 2015 WL 11108884, at *4 (E.D. Ark. Mar.
30, 2015); Corson v. Accounts Receivable Mgmt., Inc., Case No. 1:13-cv-1903, 2013 WL
4047577, at *10 (D. N.J. Aug. 9, 2013); see also In re Rules & Regulations Implementing
Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8773 (1992) (finding “debt
collection calls ... are adequately covered by exemptions we are adopting here for
commercial calls which do not transmit an unsolicited advertisement and for established
business relationships.... [T]hese exemptions would also apply where a third party places
a debt collection call on behalf of the company holding the debt.”); In Re Rules &
Regulations Implementing Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1834
(2012) (“Because the Commission determined that debt collection calls are not
telemarketing calls, it concluded that a specific exemption for debt collection calls was
Although plaintiff suggests he does not know what defendant’s business is or for
what purpose it called him, he at the same times alleges that the defendant called plaintiff
“as a debt collector to collect a consumer debt.” (#17 at ¶ 26.) The complaint does
suggest, in the alternative, that defendant was calling plaintiff “as a non-debt collector,
but for an unlawful purpose, including for an unsolicited advertisement or telephone
solicitation.” (Id. at ¶ 32.) Such an allegation would remove defendant’s conduct from
the regulatory exemption. However, defendant characterizes that alternative allegation as
a “single, contradictory conclusion” that cannot state a claim and urges this Court to
adopt the reasoning in Doucette v. GE Capital Retail Bank, which involved a nearly
identical situation in which the plaintiff attempted to fashion a TCPA claim from a
collection calls made to a non-debtor. No. 14-CV-012-LM, 2014 WL 4955675, at *2
(D.N.H. Oct. 2, 2014). There, as here, the plaintiffs argued that “there is no evidence that
the [automated] calls [they received] did not also include an unsolicited advertisement or
a telephone solicitation.” Id. Relying on law well-established in the Eighth Circuit as
well as in the First Circuit, the court there held that it must “base its analysis on the
well-pleaded facts in the complaint.” Id. Indeed, as the Supreme Court has held, “Nor
does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 557 (2007)). Plaintiff’s conclusion that the calls were by a “non-debt collector” is
not supported by the necessary facts to escape the TCPA exemption because he does not
allege that the calls “include[d] or introduce[d] an advertisement or constitute[d]
telemarketing.” 47 C.F.R. § 61.1200(a)(3)(iii). Instead, nearly every allegation involves
defendant’s making collection calls, not advertising or telemarketing calls. Although
plaintiff complains of “factual uncertainty” (#26 at 5) as to the purpose of defendant’s
calls and the need for discovery, plaintiff had the burden to plead a plausible claim. The
plaintiff’s TCPA claim is not plausible on its face and will be dismissed. See id.
Motion to Compel (#24)
Plaintiff contends that defendant’s responses to certain of plaintiff’s discovery
requests have been inadequate. In particular, plaintiff seeks complete responses to his
Interrogatories No. 2, 3, 5, 6, 7, 8, 10, and 13 and Requests for Production No. 1, 2, 3, 5,
8, 11, 12, and 17.
The general rule regarding discovery is that parties may “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.
R. Civ. P. 26(b)(1); WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d
1032, 1039 (8th Cir. 2011).
The disputed discovery requests will be discussed in turn.
Interrogatory 2: agreements between defendant and the original
Request for Production 5: all documents related to the assignment or
sale of this account from the original creditor to defendant
Defendant states it has no responsive documents because defendant interprets the
request as relying on an incorrect premise that defendant filed a lawsuit to collect a debt.
The Court does not agree that such a premise underlies the request. Further, defendant
states that the agreement between the original creditor and defendant has no relevance to
this case. This Court disagrees. The agreement between defendant and the creditor for
whom defendant was attempting to collect a debt is relevant to the issues in this case.
Further, with respect to Request for Production 5, defendant protests that it “does not
contend Plaintiff owes an account” to defendant; defendant apparently misunderstands
plaintiff’s intention. It is clear to this Court that plaintiff is describing the account about
which defendant was (apparently mistakenly) communicating with plaintiff. Defendant’s
objections are overruled.
Interrogatory 3: defendant’s file for the debtor and what they were
trying to collect
Interrogatory 5: all collection activity taken by defendant against
plaintiff and the debtor
Interrogatory 6: all communication defendant had with plaintiff and
Interrogatory 7: identification of all recordings with debtor and
plaintiff, if any
Request for Production 1: all communication defendant had with
plaintiff and debtor
Request for Production 2: the complete file on plaintiff and debtor
Defendant states that it has produced the call history for the account, a dialer
report for plaintiff’s phone number, and a sample voicemail. Defendant also responds
that it has told plaintiff that it does not have recordings or written communications with
plaintiff. Defendant also revealed that it had one call with the actual debtor, which was in
2010. Defendant has offered to obtain a court order permitting production of the actual
debtor’s personal information sufficient to identify him or her. Plaintiff states that it
seeks the complete file for the debtor, and not merely identifying information, because
plaintiff needs to prove that the debt at issue is a consumer debt under the FDCPA.
Defendant has offered to stipulate that it was seeking to collect a credit card account
opened by the debtor with HSBC/Orchard Bank, which is a third party, but plaintiff says
that is insufficient. Plaintiff expects the information it seeks to show a variety of things,
including the type of debt, correspondence from the parties, disputes on the account,
whether defendant was acting as a debt collector under the FDCPA, debtor’s contact
information, and potentially other unknown but potentially helpful information.
Defendant states that it has no information about how the actual debtor used the loan
proceeds because defendant is merely an assignee of the account.
does not describe what is in the “complete file” sought by plaintiff. The parties have not
explained why, if personal identifying information can be arranged for production, the
“complete file” pertaining to the debtor and the account cannot be produced. Surely
some protective order would be adequate to protect the interests involved. The parties
should craft an appropriate protective order to do so.
Interrogatory 8: all disputes made on the account by plaintiff, debtor,
and another relevant third party
Interrogatory 10: information related to procedures defendant uses to
collect on accounts
Interrogatory 13: similar lawsuits brought against defendant within
the last 5 years for the type of violations at issue here
Requests for Production 8 and 12: documents related to any dispute
regarding the account and all demands for payment made by the
original creditor and defendant to plaintiff and debtor.
Plaintiff explains that those requests seek to show that defendant’s violation was
intentional and defendant does not have reasonable procedures adapted to avoid
repeatedly contacting non-debtors. Plaintiff argues that those requests and interrogatories
will assist plaintiff in proving that defendant is a debt collector who was wrongfully
contacting plaintiff in an attempt to collect a consumer debt. The requests and
interrogatories also seek information relevant to defendant’s affirmative defenses,
including the “bona fide error” defense, which offers debt collectors a narrow exception
to the strict liability imposed by the FDCPA if the defendant can show that the violation
was not intentional and resulted from bona fide error notwithstanding its maintenance of
procedures reasonably adapted to avoid such error. See 15 U.S.C. § 1692k(c).
With respect to Interrogatory 8 and Requests for Production 8 and 12, the
defendant expresses confusion due to the Interrogatories’ definition of “account,” which
means “the account that [defendant] contends the Plaintiff owes in this lawsuit as well as
the account that is listed on Plaintiff’s credit report under [defendant’s] name as
identified in the lawsuit.” Defendant admits that plaintiff does not owe account 9992 --the account which is apparently the subject of this lawsuit --- but defendant also says that
it was never attempting to collect that account from plaintiff. That of course begs the
question: what debt or account was defendant trying to collect when it contacted
plaintiff? Regardless, defendant points out that the complaint did not include allegations
about an account on his credit report. That appears to be true. As the Court explained
above, the plaintiff’s intended definition of “account” seems rather clear, but, because the
request is likely duplicative of plaintiff’s other requests regarding the file and
communications with plaintiff and debtor, the Court will sustain defendant’s objection to
Interrogatory 8 and Requests for Production 8 and 12.
Defendant objects to Interrogatory 10 because of its overbreadth --- it appears to
seek information about all of defendant’s procedures, not just those related to the alleged
wrong in this case. Defendant responds that it has produced all documents and policies
relevant to the bona fide error defense, including policies and procedures related to
placing calls, being told a call was placed to a wrong number, receiving do not call
requests, and complying with the FDCPA generally. The Court will sustain defendant’s
Defendant objects to Interrogatory 13 because similar lawsuits filed against
defendant in the last five years are irrelevant to the issues in this case. Plaintiff responds
that the information would show that the FDCPA violation was not unintentional and that
defendant’s procedures are not reasonable. Defendant’s objection is overruled.
Request for Production 3: all letters sent to debtor and plaintiff in
collection of this debt
Defendant has stated that it sent no letters to plaintiff and that letters sent to the
debtor are irrelevant because they would not be relevant to whether defendant called
plaintiff, whether defendant has a bona fide error defense, whether the account was for a
consumer debt, or whether defendant was a “debt collector in connection with account
9992.” (#27 at 6.) The Court presumes these letters would be part of the “complete file”
sought by plaintiff, however, and it should be disclosed as described above.
Request for Production 11: copies of defendant’s telephone bills as it
corresponds to the times they contacted plaintiff
Request for Production 17: all telephone bills from defendant where
you called plaintiff from two particular phone numbers
Defendant objects because it believes these requests are confusing. To the extent
plaintiff wanted phone records for calls placed to number -8996, defendant has produced
that call history and dialer report. Defendant objects that its general telephone bills are
irrelevant. Plaintiff essentially argues that the bills as they correspond to the times they
contacted plaintiff are relevant, but plaintiff does not explain what the bills would offer
that has not already been disclosed through defendant’s call history and dialer report
productions. The objection will be sustained.
Defendant’s motion to dismiss will be denied. Plaintiff’s motion to compel is
denied in part and granted in part as stated herein.
IT IS HEREBY ORDERED that defendant’s motion to dismiss (#22) is
IT IS FURTHER ORDERED that plaintiff’s motion to compel is (#24) DENIED
in part and GRANTED in part.
IT IS FURTHER ORDERED that the motion to compel is granted with respect
to Interrogatories 2, 3, 5, 6, 7, and 13, and Requests for Production 1, 2, 3, and 5.
IT IS FURTHER ORDERED that the parties shall submit a proposed protective
order as described herein.
IT IS FINALLY ORDERED that the motion to compel is denied with respect to
Interrogatories 8 and 10 and Requests for Production 8, 11, 12, and 17.
Dated this 16th day of February, 2017.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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