Doucette et al v. GE Capital Retail Bank et al
Filing
28
///ORDER granting 22 Motion for Judgment on the Pleadings. So Ordered by District Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Eugenia Doucette and
John Doucette
v.
Civil No. 14-cv-012-LM
Opinion No. 2014 DNH 215
GE Capital Retail Bank; and
NCO Financial Systems, Inc.
O R D E R
This case arises out of a series of attempts to collect a
credit-card debt.
Eugenia and John Doucette (“the Doucettes”)
have sued GE Capital Retail Bank (“GE”) and NCO Financial
Systems, Inc. (“NCO”).
Against NCO, the Doucettes assert claims
under: (1) New Hampshire’s Unfair, Deceptive, or Unreasonable
Collection Practices Act (“UDUCPA”), N.H. Rev. Stat. Ann. ch.
358-C (Count I); (2) the federal Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p (Count III); and (3) the
federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §
227 (Count V).1
Before the court is NCO’s motion for judgment on
the pleadings as to Count V.
The Doucettes object.
For the
reasons that follow, NCO’s motion for partial judgment on the
pleadings is granted.
The Legal Standard
Motions for judgment on the pleadings, under Rule 12(c) of
the Federal Rules of Civil Procedure, are evaluated under the
1
The case also includes a claim against GE under New
Hampshire’s UDUCPA.
same standard as motions to dismiss under Rule 12(b)(6).
See
Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st
Cir. 2014)) (quoting Marrero-Gutierrez v. Molina, 491 F.3d 1, 5
(1st Cir. 2007)).
Ruling on a motion to dismiss for “failure to state a claim
upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6),
requires the court to conduct a limited inquiry, focusing not on
“whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The heart of that
limited inquiry concerns “whether the complaint contains
sufficient factual matter to state a claim to relief that is
plausible on its face.”
Carrero-Ojeda v. Autoridad de Energia
Electrica, 755 F.3d 711, 717 (1st Cir. 2014) (quoting RodríguezReyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013))
(internal quotation marks and brackets omitted).
To conduct its
limited inquiry, a court must: (1) “isolate and ignore
statements in the complaint that simply offer legal labels an
conclusions or merely rehash cause-of-action elements,” id.
(quoting Schatz v. Republican State Leadership Comm., 669 F.3d
50, 55 (1st Cir. 2012)); and (2) “take the facts of the
complaint as true, ‘drawing all reasonable inferences in
[plaintiff’s] favor, and see if they plausibly narrate a claim
for relief,’” id. (quoting Schatz, 669 F.3d at 55).
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Background
The following facts are drawn from the Doucettes’
complaint.
See Carrero-Ojeda, 755 F.3d at 717.
GE issued Mrs. Doucette a credit card.
She accumulated
debt on the card, and then fell behind on her payments.
In June
of 2013, she “began to receive collection calls” that “were made
by NCO in an attempt to collect payment on the [d]ebt” she owed
GE.
Am. Compl. (doc. no. 13) ¶¶ 18, 20.
“In its debt
collection efforts, NCO was either acting on behalf of or as an
agent [of] or [in the] employ of GE.”
Id. ¶ 23.
NCO “placed
[some of its] Collection Calls using an artificial or
prerecorded voice to [the Doucettes’] residential telephone
line.”
Id. ¶ 104.
In Count V of their amended complaint, the
Doucettes claim that by placing automated collection calls to
their residential phone line, without having gotten their
consent to receive such calls, NCO violated 47 U.S.C. §
227(b)(1)(B).
Discussion
NCO argues that it is entitled to judgment on the pleadings
on Count V because the collection calls at issue here lie beyond
the scope of the TCPA.
The court agrees.
Among other things, the TCPA makes it unlawful for any
person within the United States
to initiate any telephone call to any residential
telephone line using an artificial or prerecorded
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voice to deliver a message without the prior express
consent of the called party, unless the call is
initiated for emergency purposes or is exempted by
rule or order by the [Federal Communications]
Commission under paragraph (2)(B).
47 U.S.C. § 227(b)(1)(B).
Under § 227(b)(2)(B)(ii), Congress
gave the Federal Communications Commission (“FCC”) the authority
to exempt calls made for commercial purposes that: (1) “will not
adversely affect the privacy rights that this section is
intended to protect”; and (2) “do not include the transmission
of any unsolicited advertisement.”
The FCC, in turn, has adopted a rule that bars any person
or entity from
[i]nitiat[ing] any telephone call to any residential
line using an artificial or prerecorded voice to
deliver a message without the prior express written
consent of the called party, unless the call:
. . . .
(iii) 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).
In an order issued during the course of adopting rules
related to the TCPA, including the rule quoted above, the FCC
responded to commentators seeking an express exemption for
collection calls in the following way:
[W]e conclude that an express exemption from the
TCPA’s prohibitions for debt collection calls is
unnecessary because such calls are adequately covered
by exemptions we are adopting here for commercial
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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.
Whether the call is placed by or on behalf of the
creditor, prerecorded debt collection calls would be
exempt from the prohibitions on such calls to
residences as: (1) calls from a party with whom the
consumer has an established business relationship, and
(2) commercial calls which do not adversely affect
privacy rights and which do not transmit an
unsolicited advertisement. . . . Accordingly, we
reject as unnecessary proposals that we provide
specific language for use in prerecorded debt
collection messages.
In re Rules & Regs. Implementing the TCPA of 1991, 7 FCC Rcd.
8752, 8773 ¶ 39 (Oct. 16, 1992); see also In re Rules & Regs.
Implementing the TCPA of 1991, 10 FCC Rcd. 12391, 12400 ¶ 17
(Aug. 7, 1995) (“prerecorded debt collection calls are
adequately covered by exemptions adopted in our rules [which]
explicitly exempt calls made either by a party with whom the
subscriber has an established business relationship or calls
that do not transmit an unsolicited advertisement and are made
for a commercial purpose”); In re Rules & Regs. Implementing the
TCPA of 1991, 23 FCC Rcd. 559, 561 ¶ 5 (Jan. 4, 2008)
(“prerecorded debt collections calls are exempted from Section
227(b)(1)(B) of the TCPA”); see also id. ¶ 14 n.49 (“Debt
collectors may use autodialing technology to call wireline
numbers.
Debt collection calls fall within the exemption for
prerecorded calls that are commercial, but do not include an
unsolicited advertisement.”) (citation omitted).
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Based upon the foregoing, it is clear that the FCC, acting
pursuant to its authority under 47 U.S.C. § 227(b)(2)(B), has
enacted a rule, and has issued several orders, exempting debtcollection calls from the prohibition stated in § 227(b)(1)(B).
Because the Doucettes’ TCPA claim is based upon the debtcollection calls they received from NCO, they have failed to
state a claim for relief that is plausible on its face.
See
Meadows v. Franklin Collection Serv., Inc., 414 F. App’x 230,
235 (11th Cir. 2011) (granting debt collector’s motion for
summary judgment and holding that “prerecorded debt-collection
calls are exempt from the TCPA’s prohibitions on [prerecorded]
calls to residences”); Zehala v. Am. Express, No. 2:10-cv-848,
2011 WL 4484297, at *5 (Sept. 26, 2011) (granting motion to
dismiss TCPA claim and explaining that “[p]rerecorded telephone
calls made for the purpose of debt collection have consistently
been found to fit both exemptions for calls not containing
‘unsolicited advertisement or constitute telephone solicitation’
and calls made to a recipient ‘with whom the caller has an
established business relationship’”) (citation omitted).
The Doucettes attempt to evade the reach of 47 U.S.C. §§
227(b)(1)(B) & (b)(2)(B)(ii) and 47 C.F.R. § 64.1200(a)(3)(iii)
by arguing that because discovery is not yet complete, “there is
no evidence that the [automated] calls [they received] did not
also include an unsolicited advertisement or a telephone
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solicitation.”
unavailing.
Pl.’s Obj. (doc. no. 24) 3.
That argument is
When ruling on a motion for judgment on the
pleadings, as when ruling on a motion to dismiss under Rule
12(b)(6), the court bases its analysis on the well-pleaded facts
in the complaint.
See Carrero-Ojeda, 755 F.3d at 717.
Here,
virtually every reference to NCO in the amended complaint
describes NCO as making collection calls.
More specifically, in
its TCPA claim against NCO, the Doucettes allege that “NCO
willfully and/or knowingly placed Collection Calls using an
artificial or prerecorded voice to Plaintiffs’ residential
telephone line.”
Am. Compl. (doc. no. 13) ¶ 104.
In each of
the next four paragraphs, the amended complaint refers to NCO’s
“Collection Calls.”
See id. ¶¶ 105-08.
Nowhere in Count V, or
in the rest of the complaint, do the Doucettes ever allege that
they received any other kind of call from NCO, much less a call
transmitting an unsolicited advertisement.
Accordingly, the
Doucettes’ amended complaint does not state a plausible claim
for relief under the TCPA.
See Plumbers’ Union Local No. 12
Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 771
(1st Cir. 2011) (citing Maldonado v. Fontanes, 568 F.3d 263, 266
(1st Cir. 2009)); González-Maldonado v. MMM Healthcare, Inc.,
693 F.3d 244, 247 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
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Conclusion
For the reasons described above, the Doucettes’ claim that
NCO violated 47 U.S.C. § 227(b)(1)(B) by subjecting them to
automated debt-collection calls is not a plausible claim for
relief.
Accordingly, NCO’s motion for partial judgment on the
pleadings, document no. 22, is granted.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
October 2, 2014
cc:
R. Matthew Cairns, Esq.
Aaron R. Easley, Esq.
Jonathan Eck, Esq.
Michael T. Racine, Esq.
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