Clifford v. MRS BPO, LLC
Filing
25
ORDER granting 12 Defendant, MRS BPO, LLCs, Motion to Dismiss Plaintiffs Amended Complaint. Signed by Judge Jon Phipps McCalla on 4/22/2015. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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EUGENE CLIFFORD,
Plaintiff,
v.
MRS BPO, LLC dba MRS
ASSOCIATES,
Defendant.
No. 2:14-cv-03019-JPM-dkv
ORDER GRANTING DEFENDANT, MRS BPO, LLC’S, MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT
Before the Court is Defendant, MRS BPO, LLC’s, Motion to
Dismiss Plaintiff’s Amended Complaint, filed February 12, 2015.
(ECF No. 12.)
Plaintiff Eugene Clifford filed a Response on
February 24, 2015.
(ECF No. 13.)
On April 2, 2015, the Court held a Telephonic Motion
Hearing attended by counsel for the parties.
(ECF No. 21.)
On
April 10, 2015, the Court Granted Plaintiff’s Motion to Amend
Complaint.
(ECF No. 23.)
For the reasons stated below, Defendant’s Motion is
GRANTED.
In resolving Defendant’s Motion to Dismiss, the Court
has considered the facts as alleged in Plaintiff’s Amended
Complaint as amended by Plaintiff’s Motion to Amend Complaint
(hereinafter referred to as “Second Amended Complaint”) and
those additional facts alleged by Plaintiff’s Counsel, William
A. Cohn, on the record during the Telephonic Motion Hearing.
I.
BACKGROUND
A.
Factual Background
This case concerns whether Defendant MRS BPO, LLC (“MRS”)
violated the Fair Debt Collection Practices Act (“FDCPA”) by
contacting a third party.
MRS is incorporated and headquartered
in New Jersey and is registered to do business in Tennessee.
(Am. Compl. ¶ 2, ECF No. 11.)
At some time before November 26,
2014, MRS attempted to collect a debt from Plaintiff Eugene
Clifford by calling the telephone number (901) 858-9118.
at ¶ 3.)
(Id.
The telephone number, however, belonged to William A.
Cohn, a lawyer with experience in debt collections. (Id. at ¶
5.)
According to Mr. Cohn, MRS contacted him with a local
number and left a message stating that the call was from MRS
with regard to a personal business matter.
16.)
(ECF No. 22 at 7:9-
Mr. Cohn then called the number, where MRS stated who they
were, where they were located, and that they were trying to
contact Eugene Clifford regarding a personal business matter.
(Id. at 8:10-18.)
The call was not recorded.
(Id. at 6:8-9.)
Mr. Cohn began representing Plaintiff sometime after this phone
call.
(See id. at 6:1-4.)
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B.
Procedural Background
On November 26, 2014, Plaintiff Clifford filed his original
complaint in the Court of General Sessions of Shelby County,
Tennessee.
(ECF No. 12-1 at 2.)
MRS removed the suit to the
United States District Court for the Western District of
Tennessee on December 29, 2014.
(ECF No. 1.)
MRS filed a
Motion for a More Definite Statement regarding Plaintiff’s
complaint on January 5, 2015.
(ECF No. 9.)
The Court granted
the Motion for a More Definite Statement on February 2, 2015.
(ECF No. 10.)
On February 7, 2015, Clifford filed an Amended Complaint
and More Definite Statement.
(ECF No. 11.)
The Amended
Complaint alleged that: (1) MRS utilized deceptive practices,
including the use of a local telephone number, to try and
contact Plaintiff; (2) MRS was negligent and failed to conduct
its due diligence to determine Plaintiff’s contact information;
and (3) MRS violated the FDCPA by representing through its
“conduct and actions” that it was trying to collect a debt from
Plaintiff when it contacted Mr. Cohn, a third party.
(Id. at ¶¶
4—8.)
On February 12, 2015, MRS filed a Motion to Dismiss
Plaintiff’s Amended Complaint.
(ECF No. 12.)
The Motion to
Dismiss asserts (1) that Plaintiff failed to allege a proper
FDCPA claim; (2) that the FDCPA does not prohibit the use of a
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local telephone number when placing collection calls; (3) that
the FDCPA does not prohibit calls to third parties; and (4) that
Plaintiff has not alleged facts to support the claim that MRS
told a third party that it was trying to collect a debt from
Plaintiff.
(ECF No. 12-1 at 2.)
On February 24, 2015,
Plaintiff filed a Motion to Amend Complaint, which proposed
certain amendments to the Amended Complaint (ECF No. 11).
(ECF
No. 13.)
On April 2, 2015, the Court held a Telephonic Motion
Hearing regarding MRS’s Motion to Dismiss and Plaintiff’s Motion
to Amend Complaint.
(ECF No. 21.)
On April 7, 2015, the court
reporter filed a Notice of Filing of Official Transcripts of
Telephonic Motion Hearing held on April 2, 2015.
(ECF No. 22.)
On April 10, 2015, the Court granted Plaintiff’s Motion to Amend
Complaint.
(ECF No. 23.)
As of the date of this Order,
Plaintiff has yet to file a subsequent complaint incorporating
the modifications that were proposed in Plaintiff’s Motion to
Amend Complaint (ECF No. 13).
Although a revised Amended
Complaint has not been filed with the Court, this Order will
refer to the Amended Complaint as amended by Plaintiff’s Motion
(ECF No. 13) as the “Second Amended Complaint.”
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II.
LEGAL STANDARD
A.
Rule 12(b)(6) Motion to Dismiss
Under Rule 12(b)(6), a court can dismiss a complaint for
“failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).
“A pleading that states a claim for
relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed. R.
Civ. P. 8(a)(2).
In assessing a complaint for failure to state a claim,
[a court] must construe the complaint in the light
most favorable to the plaintiff, accept all well-pled
factual allegations as true, and determine whether the
complaint
“contain[s]
sufficient
factual
matter,
accepted as true, to state a claim to relief that is
plausible on its face.”
Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 790
(6th Cir. 2012) (second alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“This standard is
not akin to a probability requirement, but it asks for more than
a sheer possibility that defendant has acted unlawfully.”
Williams v. Duke Energy Int’l, 681 F.3d 788, 799 (6th Cir. 2012)
(quoting Iqbal, 556 U.S. at 678) (internal quotation marks
omitted).
The Court, however, “need not accept as true legal
conclusions or unwarranted factual inferences, and [c]onclusory
allegations or legal conclusions masquerading as factual
allegations will not suffice.”
In re Travel Agent Comm’n
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Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (alteration
in original) (citation omitted) (internal quotation marks
omitted); see also Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d
149, 157 (6th Cir. 2014) (“[A] complaint must contain ‘more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.’” (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007))).
“Issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.
It is not
sufficient for a party to mention a possible argument in [a]
skeletal way, leaving the court to put flesh on its bones.”
El-
Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009) (alteration
in original) (internal quotation marks omitted).
Although courts “[g]enerally, at the motion-to-dismiss
stage, . . . consider only the plaintiff’s complaint,” In re
Omnicare, Inc. Securities Litigation, 769 F.3d 455, 466 (6th
Cir. 2014), in the interest of judicial economy, the Court will
consider the allegations set forth in the Second Amended
Complaint (ECF No. 13) and those factual allegations stated on
the record during the Telephonic Motion Hearing on April 2, 2015
(ECF Nos. 21-22) -- construing all such allegations in the light
most favorable to Plaintiff. 1
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Plaintiff did not object to the Court’s indication that it would consider
the statement of facts stated on the record during the Telephonic Motion
Hearing. (See ECF No. 22 at 17:12–24.)
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III. ANALYSIS
In order to establish a claim for damages under the FDCPA:
“(1) [the] plaintiff must be a ‘consumer’ as defined by the Act;
(2) the ‘debt’ must arise[] out of transactions which are
‘primarily for personal, family or household purposes;’ (3)
[the] defendant must be a ‘debt collector’ as defined by the
Act;” and (4) the defendant must have violated one of the
FDCPA’s substantive provisions.
Wallace v. Washington Mut.
Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012) (internal
quotation marks and citations omitted); 15 U.S.C. § 1692k.
MRS challenges the sufficiency of Clifford’s Amended
Complaint on the following grounds: 1) Clifford has failed to
allege that “the underlying debt was for personal, family, or
household purposes;” 2) Clifford has failed to allege that
Defendant is a debt collector; 3) Clifford has failed to allege
sufficient facts to show that MRS communicated with a third
party “in connection with the collection” of a debt.
(ECF No.
12 at 4-8.)
In the Second Amended Complaint (ECF No. 13), Clifford
added the following allegations:
The defendant is a debt collector as that term is used
in the Fair Debt Collection Practices Act, 15 USC 1692
et seq.
The plaintiff had not started a business at the time
of the call and had no business debts. The debt which
the defendant was attempting to collect from the
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plaintiff could only have been, and was in fact, a
consumer debt or a debt for personal, family, or
household purposes.
(ECF No. 13 at 1.)
It was further revealed at the Telephonic
Motion Hearing that MRS identified itself as MRS Associates
Financial Service Company in its statements to Mr. Cohn.
No. 22 at 7:12-13, 8:13-14.)
(ECF
In the aggregate, Plaintiff has
alleged sufficient facts that the underlying debt was a consumer
debt and that Defendant was a debt collector at the time of the
phone call.
Consequently, the remaining issue before the Court
is whether Clifford has alleged sufficient facts to show that
MRS violated one of the substantive provisions of the FDCPA.
A.
15 U.S.C. § 1692c(b)
In the Second Amended Complaint, Clifford alleges MRS
violated § 1692c(b) of the FDCPA.
(ECF No. 13 at 1-2.)
Under
§ 1692c(b), “a debt collector may not communicate, in connection
with the collection of any debt, with any person other than the
consumer, his attorney, a consumer reporting agency if otherwise
permitted by law, the creditor, the attorney of the creditor, or
the attorney of the debt collector.”
The question raised in the instant case is what standard
applies to the determination of whether the content of a
“communication” as defined in the FDCPA is “in connection with
the collection of any debt” in violation of § 1692c(b).
The
FDCPA defines “communication” as “the conveying of information
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regarding a debt directly or indirectly to any person through
any medium.”
15 U.S.C. § 1692a(2).
MRS argues that a debt collector does not violate
§ 1692c(b) where there is no evidence to establish that the debt
collector discussed or referenced the debt in its communication
with the third party.
(See ECF No. 8.)
In support of its
argument, MRS relies on Horkey v. J.V.D.B. & Associates, Inc.,
179 F. Supp. 2d 861, 868 (N.D. Ill. 2002).
In Horkey, the
district court considered whether a debt collector asking a
debtor’s co-worker if the debtor was available violated
§ 1692c(b).
179 F. Supp. 2d at 867-68.
The district court
found that merely inquiring into the debtor’s whereabouts was
insufficient to establish a claim under § 1692c(b).
Id. at 868.
Clifford argues that the term “communication” should be
construed broadly.
(ECF No. 14 at 2.)
Clifford asserts,
“Communication is the total of what is said by the debt
collector, what the person receiving the communication knows at
that time, and what the person receiving the communication
perceives to be the message.”
(Id.)
Clifford concludes that
because Mr. Cohn was able to infer that the phone call was from
a debt collector regarding a consumer debt, MRS “communicated”
with Mr. Cohn in violation of § 1692c(b).
The Court finds that the proper standard for determining
whether a communication is in violation of § 1692c(b) lies
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somewhere in between the parties’ positions.
Given the broad
language of § 1692c(b) and the remedial nature of the FDCPA, a
requirement that the debt collector make an explicit reference
to a consumer debt would result in a standard stricter than that
intended by Congress.
See Brown v. Card Serv. Ctr., 464 F.3d
450, 453 (3d Cir. 2006) (“Because the FDCPA is a remedial
statute, . . . we construe its language broadly, so as to effect
its purpose . . . .”); Clark v. Capital Credit & Collection
Servs., Inc., 460 F.3d 1162, 1176 (9th Cir. 2006); Johnson v.
Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002).
The plain
language of § 1692a(2), however, requires the conveyance of some
information regarding the underlying debt beyond merely
inquiring into the availability of the debtor.
F. Supp. 2d at 868.
See Horkey, 179
It is not the purpose of the FDCPA to
punish debt collectors who merely called a third party by
mistake and the third party was able to surmise that the call
was from a debt collector.
Therefore, to survive a Rule
12(b)(6) motion to dismiss, the plaintiff must allege the
conveyance of some specific information regarding the underlying
debt.
In the instant case, Clifford has failed to allege facts
that show MRS’s contact with Mr. Cohn was anything more than an
inquiry into Clifford’s availability.
The extent of Clifford’s
allegations as to the content of the statements made by MRS to
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Mr. Cohn are as follows: First, Clifford, through his counsel
Mr. Cohn, alleges that MRS called Mr. Cohn and left a voicemail
in which MRS identified itself as MRS Associates Financial
Service Company and stated that the call was with regard to a
“personal business matter.”
(ECF No. 22 at 7:12-16.)
Second,
during Mr. Cohn’s return call, MRS identified itself as MRS
Associates Financial Service Company and stated that “they were
trying to get in touch with Eugene Clifford because it was a
personal business matter.”
(ECF No. 22 at 8:10-18.)
When Mr.
Cohn asked whether MRS was a local company, MRS further stated
that it was located in New Jersey.
(Id. at 8:14-15.)
Significantly, Clifford and Mr. Cohn do not allege that MRS
discussed the content or the existence of a consumer debt with
Mr. Cohn.
Having failed to allege the conveyance of any
specific information regarding the underlying debt, Clifford’s
pleadings fail to state a facially plausible claim under
§ 1692c(b).
See Iqbal, 556 U.S. at 678.
Furthermore, even if a small amount of information
regarding collection of Clifford’s debt was impliedly conveyed
to Mr. Cohn, as Clifford suggests, the FDCPA expressly allows
for calls to third parties in order to locate a debtor.
See 15
U.S.C. § 1692b (allowing a “debt collector [to communicate] with
any person other than the consumer for the purpose of acquiring
location information about the consumer” given certain
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conditions).
The statements made by MRS to Mr. Cohn appear on
their face to be nothing more than an effort to locate Clifford.
Accordingly, the Court DISMISSES all of Plaintiff’s claims
under 15 U.S.C. § 1692c(b).
B.
15 U.S.C. § 1692d
In the Second Amended Complaint, Clifford alleges MRS also
violated 15 U.S.C. § 1692d(6).
Under § 1692d:
A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt. Without
limiting the general application of the foregoing, the
following conduct is a violation of this section:
. . . .
Except as provided in section 1692b of this title, the
placement of telephone calls without meaningful disclosure
of the caller’s identity.
§ 1692d(6).
During the Telephonic Motion Hearing, Mr. Cohn
admitted that MRS identified itself as MRS Associates Financial
Service Company to Mr. Cohn in the voicemail and during the
phone conversation between Mr. Cohn and MRS.
7:12-13, 8:13-14.)
(ECF No. 22 at
Consequently, Clifford has failed to state a
claim on which relief can be granted under § 1692d.
Accordingly, the Court DISMISSES Plaintiff’s § 1692d
claims.
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IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss
Plaintiff’s Amended Complaint (ECF No. 12) is GRANTED.
Plaintiff has been given multiple opportunities to amend his
Complaint in order to state a claim under the FDCPA for which
relief could be granted, but has failed to do so.
Accordingly,
this case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 22nd day of April, 2015.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
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