Eaton v. Caine & Weiner, Inc.

Filing 3

SUMMARY ORDER re 1 Complaint. Plaintiff to respond as outlined on or before April 4, 2013. Failure to comply with this order will result in dismissal of the complaint for failure to state a claim. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Tony Eaton
v.

Civil No. 13-cv-121-JL

Caine & Weiner, Inc.
SUMMARY ORDER
Plaintiff Tony Eaton, who is represented by counsel, filed
this action against Caine & Weiner, Inc. (“C&W”), alleging
violations of the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq. (“FDCPA”), and state consumer protection laws.
Eaton’s complaint, quoting 15 U.S.C. § 1692a(5) verbatim, alleges
that C&W “is attempting to collect on . . . an alleged obligation
of a consumer to pay money arising out of a transaction in which
the money, property, insurance or services which are the subject
of the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has been
reduced to judgment.”
this point.

It provides no further factual detail on

The remainder of the complaint is similarly bereft

of meaningful facts.

The entirety of its allegations concerning

C&W’s allegedly wrongful conduct consist of obtuse accusations
that C&W, “within one (1) year preceding the date of this
Complaint, . . . continued to contact Plaintiff after being
informed that Plaintiff is not the alleged debtor that Defendant
is trying to locate” and “attempted to communicate with Plaintiff

numerous times and with such frequency as to harass and abuse the
Plaintiff.”
These allegations are, in the court’s view, insufficient to
meet Eaton’s burden, under Federal Rule of Civil Procedure
8(a)(2), to plead “a short and plain statement of the claim
showing that the pleader is entitled to relief.”

As the Supreme

Court has explained:
[T]he pleading standard Rule 8 announces does not
require detailed factual allegations, but it demands
more than an unadorned, the-defendant-unlawfullyharmed-me accusation. A pleading that offers labels
and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid
of further factual enhancement.
. . .
[A] complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility
when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)) (internal quotation marks
and citations omitted).

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Eaton’s complaint falls far short of this standard.

Many of

its allegations–-such as its allegation regarding the nature of
the debt, quoted above–-offer nothing more than “labels and
conclusions or a formulaic recitation of the elements of a cause
of action.”

And what little factual matter appears in the

complaint creates only “a sheer possibility” that C&W violated
the FDCPA or state law.

While, to be sure, it might have been

unlawful for C&W to “continu[e] to contact Plaintiff after being
informed that Plaintiff is not the alleged debtor,” that conduct
on its own does not violate either the FDCPA or the state laws
upon which Eaton relies.

Nor do those statutes prohibit

contacting an alleged debtor “numerous times” or “with
frequency”; only when the number, frequency, or nature of the
contacts become harassing, abusive, or oppressive do they become
actionable.

As noted, however, the complaint tells the court

nothing about how many times or how often C&W contacted or
attempted to contact Eaton.

Its allegations “are merely

consistent with” C&W’s liability, and do not meet Rule 8’s
plausibility requirement.
Accordingly, on or before April 4, 2013, Eaton shall file
either (a) a memorandum showing cause why this action should not
be dismissed for failure to state a claim; or (b) an amended
complaint supplying “sufficient factual matter, accepted as true,

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to state a claim to relief that is plausible on its face” in
accord with Rule 8’s standard.

Failure to comply with this order

will result in dismissal of the complaint for failure to state a
claim.
SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

March 21, 2013

Anthony S. Augeri, Esq.

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