McLemore v. Portfolio Recovery Associates, LLC et al (TV2)

Filing 12

ORDER granting 8 Defendant's Motion to Strike Pattern and Practice Allegations. The Plaintiff SHALL FILE an amended complaint removing the pattern and practice allegations from paragraphs 15, 22, 23, 24, 25, 26, 29, 30, 31, 54, 62, and 63, on or before October 29, 2012. Thereafter, the Defendants shall have up to and including November 19, 2012, to file a responsive pleading or motion. Signed by Magistrate Judge C Clifford Shirley on October 17, 2012. (AYB)

UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CHRISTINA MCLEMORE,
Plaintiff,

V.
PORTFOLIO RECOVER ASSOCIATES, LLC,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 2:12-CV-337
(VARLAN/SHIRLEY)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and the order of the District Judge [Doc. 10] referring the Motion to Strike Pattern and Practice
Allegations from Complaint [Doc. 8], filed by Defendants Portfolio Recovery Associates LLC
and Anita Bray (“the Defendants”), to the undersigned for disposition or report and
recommendation as may be appropriate.
Plaintiff alleges that Defendants violated the Fair Debt Collections Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., in their attempts to collect a debt from Plaintiff.
Specifically, Plaintiff claims that Portfolio Recovery Associates filed a collection lawsuit against
Plaintiff without first obtaining evidence of the existence or amount of the debt between the
original creditor and Plaintiff. [Doc. 1, ¶¶ 17-21]. Plaintiff also alleges that Defendants failed to
include certain information in communications with Plaintiff, [id. at ¶¶ 70-75], failed to comply
with certain state laws applicable to collection services, [id. at ¶¶ 76-92], and filed a civil warrant
that contained false, deceptive, and misleading statements regarding the debt owed by Plaintiff
[id. at ¶ 39].

In the Motion to Strike, Defendants allege that Plaintiff’s Complaint includes several
paragraphs of allegations that purport to establish an alleged pattern and practice on the part of
Defendants of filing collection lawsuits without obtaining proper evidence in support of their
claims. [Doc. 8 at 2]. Defendants also allege that Plaintiff’s Complaint contains generalized
allegations of Defendants’ alleged practices and actions allegedly taken by Defendants against
third parties, and do not mention any acts taken with regard to Plaintiff. [Id.]. The Defendants
move the Court to strike paragraphs 15, 22-26, 29-31, 54, 62, and 63 as impertinent, immaterial,
and scandalous pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. [Id. at 3].
The Defendants cite the undersigned to Shelton v. Encore Capital Group, Inc., No. 2:12CV-23 (E.D. Tenn. July 5, 2012), and Howze v. Encore Capital Group, Inc., No. 2:12-CV-12
(E.D. Tenn. July 5, 2012), wherein the Honorable Dennis Inman, United States Magistrate Judge,
granted a similar motion to strike pattern and practice allegations. 1
The Plaintiff has not responded in opposition to the relief requested by the Defendants.
The time for responding has expired. See E.D. Tenn. L.R. 7.1; Fed. R. Civ. P. 6(d), 5(b)(2)(E).
The Court may treat this failure to respond as acquiescence to the relief sought. See E.D. Tenn. L.R.
7.2; see also Campbell v. McMinn County, 2012 WL 369090 (E.D. Tenn. 2012) (Curtis, C.J.)

(“Plaintiff’s failure to respond effectively waives any objections that he may have had on this
matter.”).
The Court has considered the Defendants’ requested relief and the arguments presented in
support of the relief. The Court finds that Shelton v. Encore Capital Group, Inc., No. 2:12-CV-23

(E.D. Tenn. July 5, 2012), and Howze v. Encore Capital Group, Inc., No. 2:12-CV-12 (E.D.
Tenn. July 5, 2012), provide persuasive authority in this case. Moreover, the Court finds that the
Plaintiff has failed to present any opposition to the relief requested.

2

Accordingly, the Court finds that the Motion to Strike Pattern and Practice Allegations
[Doc. 8] is well-taken, and it is GRANTED. The Plaintiff SHALL FILE an amended complaint
removing the pattern and practice allegations from paragraphs 15, 22, 23, 24, 25, 26, 29, 30, 31,
54, 62, and 63, on or before October 29, 2012. Thereafter, the Defendants shall have up to and
including November 19, 2012, to file a responsive pleading or motion.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

3