Jones v. Halsted Financial Services

Filing 11

ORDER granting 3 Motion to Dismiss. Plaintiff Charisma Jones' claims are DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Signed by Judge Charles Goodwin on 08/28/2024. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHARISMA JONES,
Plaintiff,

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v.
HALSTED FINANCIAL SERVICES,
Defendant.

Case No. CIV-23-1175-G

ORDER
On December 22, 2023, Plaintiff Charisma Jones, appearing through counsel, filed
a Complaint (Doc. No. 1), bringing claims against Defendant Halsted Financial Services
for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et
seq.
Now before the Court is Defendant’s Motion to Dismiss (Doc. No. 3), seeking
dismissal of Plaintiff’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See id.; see also Def.’s Br. (Doc. No. 4). Plaintiff has filed a Response (Doc.
No. 10).
I.

Plaintiff’s Allegations
In her Complaint, Plaintiff alleges that she is currently employed at the University

of Central Oklahoma, working Monday through Friday, 8:00 a.m. to 5:00 p.m. See Compl.
at 2. Plaintiff further alleges that Defendant is an entity that is engaged in the collection of
debt from consumers and is a “debt collector” as defined by the FDCPA. Id. at 2, 11.

On May 29, 2023, at 3:29 p.m., Plaintiff “[m]issed a telephone call from
Defendant.” Id. ¶ 7.
On or about June 30, 2023, at 3:04 p.m., Plaintiff received a telephone call from
Defendant. Id. ¶ 8. “Defendant indicated that it was attempting to collect on an alleged
debt . . . in the amount of $1,085.78.” Id. Plaintiff informed Defendant’s representative:
“I’m at work[,] and it’s not a good time to talk.” Id. Defendant responded, “just call[] us
back for payment arrangement or settlement for you to pay this off once and for all.” Id.
On or about July 18, 2023, at 3:22 p.m., Defendant called Plaintiff while Plaintiff
was at work. Id. ¶ 9. When Plaintiff missed the call, Defendant left a voicemail
“attempting to collect the alleged debt” and requesting that Plaintiff call back. Id.
On or about July 21, 2023, at 3:26 p.m., Plaintiff returned Defendant’s call. Id. ¶
10. Defendant quickly informed Plaintiff that the call was “an attempt to collect a debt.”
Id. Plaintiff replied, “I’m at work[,] and it’s not a good time to talk.” Id.
II.

Standard of Review
In analyzing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court “accept[s] as true all well-pleaded factual allegations in the complaint
and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec.
Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). “[T]o withstand a Rule
12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as
true, ‘to state a claim to relief that is plausible on its face.’” Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). While the Rule 12(b)(6) standard does not require that a plaintiff establish a
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prima facie case in the pleading, the court discusses the essential elements of each alleged
cause of action to better “determine whether [the plaintiff] has set forth a plausible claim.”
Id. at 1192.
A complaint fails to state a claim on which relief may be granted when it lacks
factual allegations sufficient “to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare legal conclusions in a
complaint are not entitled to the assumption of truth; “they must be supported by factual
allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III.

Defendant’s Motion to Dismiss
Plaintiff asserts that Defendant’s telephone call of July 18, 2023, was made in

violation of 15 U.S.C. § 1692c(a)(1) and (a)(3). See Compl. ¶¶ 9-10, 12-17. Plaintiff
requests an award of statutory and actual damages based upon Defendant’s illegal
collection communications. See id. at 12, 14.
To establish a claim for violation of the FDCPA, a plaintiff generally must show:
(1) that he or she is a natural person and “consumer” within the meaning of the statute; (2)
the subject debt is an “obligation or alleged obligation to pay money arising out of a
transaction” that is primarily to “personal, family, or household purposes”; (3) the
defendant is a “debt collector” as defined by the statute; and (4) the defendant’s act or
omission in connection with collecting the debt violated the statute. Heejoon Chung v.
U.S. Bank, 250 F. Supp. 3d 658, 680 (D. Haw. 2017); Ator v. Performant Recovery, Inc.,

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No. 1:19-cv-02329, 2020 WL 13442029, at *1-2 (D. Colo. Oct. 1, 2020); 15 U.S.C. §
1692a(3), (5), (6).
Defendant attacks the pleading as to the fourth element, contending that the
Complaint fails to present factual allegations plausibly showing that Defendant’s
communications with Plaintiff violated either § 1692c(a)(1) or § 1692c(a)(3). See Def.’s
Br. at 2-3, 4-11. The Court agrees.
A. 15 U.S.C. § 1692c(a)(1)
Pursuant to 15 U.S.C. § 1692c(a)(1):
Without the prior consent of the consumer given directly to the debt collector
or the express permission of a court of competent jurisdiction, a debt
collector may not communicate with a consumer in connection with the
collection of any debt-(1) at any unusual time or place or a time or place known or which should
be known to be inconvenient to the consumer. In the absence of
knowledge of circumstances to the contrary, a debt collector shall assume
that the convenient time for communicating with a consumer is after 8
o’clock antemeridian and before 9 o’clock postmeridian, local time at the
consumer’s location[.]
15 U.S.C. § 1692c(a)(1).
As excerpted above, Plaintiff alleges in relevant part that on or about June 30, 2023,
at 3:04 p.m., Plaintiff received a telephone call from Defendant, that Defendant informed
her it was attempting to collect on an alleged debt, and that Plaintiff informed Defendant
that she was “at work and it’s not a good time to talk.” Compl. ¶ 8. Defendant responded
by asking that Plaintiff call Defendant back. Id. Then, on or about July 18, 2023, at 3:22
p.m., Defendant called Plaintiff while Plaintiff was at work. Id. ¶ 9. When Plaintiff missed

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the call, Defendant left a voicemail “attempting to collect the alleged debt” and requesting
that Plaintiff call back. Id.
Even construed in Plaintiff’s favor, these allegations do not plausibly establish that
Defendant’s 3:22 p.m. call of July 18, 2023, was placed at “a time or place known or which
should [have been] known to be inconvenient to” Plaintiff. 15 U.S.C. § 1692c(a)(1).
Plaintiff does not allege that she informed Defendant that communication at that
“presumptively convenient” time or on that day would be inconvenient or otherwise
present any basis to find that Defendant knew or should have known of the alleged
inconvenience. Ator, 2020 WL 13442029, at *3. And Plaintiff’s Response, which is less
a brief than a disjointed series of bare legal holdings, fails to provide the requisite factual
detail to allow a plausible inference of such knowledge on the part of Defendant. See, e.g.,
Pl.’s Resp. at 8 (“As alleged in the Complaint Plaintiff told the Defendant twice ‘I’m
currently at work so it’s not a good time to talk’ this action is untimely [sic] a material fact
question left for a jury Plaintiff has put Defendant on notice of the illegal conduct violating
1692c(a)(1), (3) of the FDCPA.”).
Because the Complaint fails to “nudge[] [this] claim[] across the line from
conceivable to plausible,” it must be dismissed pursuant to Rule 12(b)(6). Twombly, 550
U.S. at 570; see Ator, 2020 WL 13442029, at *3 (granting judgment to debt collector on §
1692c(a)(1) claim where the plaintiff never “suggested or expressly communicated to [the
debt collector] it was calling at inconvenient times or places”).

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B. 15 U.S.C. § 1692c(a)(3)
Section 1692c(a)(3) prescribes that, without prior approval, “a debt collector may
not communicate with a consumer in connection with the collection of any debt . . . at the
consumer’s place of employment if the debt collector knows or has reason to know that the
consumer’s employer prohibits the consumer from receiving such communication.” 15
U.S.C. § 1692c(a)(3).
Plaintiff’s allegations, set forth above, fail to establish that Defendant’s calls were
made to or “at [Plaintiff’s] place of employment.” Id. The Complaint more plausibly
reflects that the calls were made to Plaintiff’s own cell phone at a time when Plaintiff
happened to be at work. See Compl. ¶¶ 8-10. Several federal district courts have rejected
claims for violation of 15 U.S.C. § 1692c(a)(3) for debt collector calls made to the
plaintiff’s personal cell phone, rather than to an employer’s landline or a work cell phone.
See, e.g., Levy v. Client Servs., Inc., No. 2:23-cv-01099, 2024 WL 2185737, at *3 (D. Nev.
May 15, 2024) (“Calls made to a personal cell phone that are received at work are not calls
made to a place of employment within the FDCPA’s meaning.” (citing cases)). The Court
finds these decisions persuasive and concludes that Plaintiff has failed to allege a claim for
violation of § 1692c(a)(3) upon which relief can be granted.
In addition, Plaintiff’s allegations do not show that Defendant knew or had reason
to know that Plaintiff’s employer “prohibit[ed] [Plaintiff] from receiving such
communication.” 15 U.S.C. § 1692c(a)(3). To the contrary, Plaintiff’s allegation that she
checked her voicemail and returned Defendant’s phone call during a time that she stated
she “was at work” more plausibly establishes that Plaintiff was permitted to engage in such
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communications while at her place of employment. See Compl. ¶¶ 9-10. Plaintiff’s claim
is likewise subject to dismissal under Rule 12(b)(6) on this basis. See Castellanos v.
JPMorgan Chase & Co., No. 09-CV-00969, 2009 WL 1833981, at *7-8 (S.D. Cal. June
23, 2009).
CONCLUSION
For the foregoing reasons, Defendant Halsted Financial Services’ Motion to Dismiss
(Doc. No. 3) is GRANTED. Plaintiff Charisma Jones’ claims are DISMISSED WITHOUT
PREJUDICE pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A separate judgment shall be entered.
IT IS SO ORDERED this 28th day of August, 2024.

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