Meroney v. Pharia LLC et al

Filing 34

Memorandum Opinion and Order (Ordered by Judge John McBryde on 10/19/09) (wrb)

I"
IN

U.S. DISTHIU l'IORTHERN DlSTIHCTOF TEXAS

FILED

JAKE D. MERONEY, Plaintiff,

vs.
PHARIA, LLC, ET AL., Defendants.

NO. 4:09-CV-364-A (Consolidated with NO. 4:09-CV-365-A)

MEMORANDUM OPINION and ORDER Having considered the motion to dismiss filed by defendant Pharia, LLC ("Pharia") and the response of plaintiff, Jake D. Meroney ("Meroney"), the court concludes that the motion should be granted and all causes of action asserted against Pharia should be dismissed.
1.

Nature of the Lawsuit This action stems from two debt collection lawsuits filed in state court by Pharia, a purchaser of consumer debt, against Meroney, a purported debtor.
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In his first amended complaint,

Meroney alleges that the pleadings in those state court lawsuits contained several false, deceptive, and misleading statements, in violation of various provisions of the Fair Debt Collection Practices Act, 15 U.S.C.
§§

l692-l692p ("FDCPA"), the Texas Debt

lMeroney alleges that the state court lawsuits are Cause No. 08-10-721, Pharia, LLC v. Jake D. Meroney, 271st District Court of Wise County, Texas, and Cause No. CV-08-00142-4, Pharia, LLC v. Jake D. Meroney, Justice Court, Precinct 4, Wise County, Texas. Am. Compl. at 4,,-r,-r 9-10.

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Collection Act, Tex. Fin. Code Ann. 2006)

§§

392.001-392.404 (Vernon

("TDCA"), and the Deceptive Trade Practices-Consumer
§§

Protection Act, Tex. Bus. & Com. Code Ann. 2002) ("DTPA"). II. Grounds of the Motion

17.41-17.63 (Vernon

In its motion to dismiss, Pharia argues that Meroney's allegations fail to state a claim under the FDCPA. Pharia notes that if Meroney's claims under the FDCPA are dismissed, only state-law claims will remain against Pharia and argues that the court should therefore surrender supplemental jurisdiction over those claims. III. Applicable Motion to Dismiss Principles The standards for deciding a motion to dismiss for failure to state a claim are well-settled. The court's task is to determine "not 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). Although the reviewing court must normally view all allegations in the complaint in a light most favorable to the plaintiff, it need not credit bare conclusory allegations that are devoid of any factual enhancement. Ashcroft v. Iqbal, 556 U.S. ---, 129 S. Ct. 1937, 1949-50 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007). To survive a motion to dismiss, the complaint must

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contain sufficient factual matter "to state a claim to relief that is plausible on its face." Ashcroft, 129 S. Ct. at 1949 (quoting Bell Atl., 550 U.S. at 570) omi tted) . In adjudicating defendant's motion, the court may consider the complaint and its proper attachments. Collins v. Morgan (internal quotation marks

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The court may also consider documents attached to defendant's motion to dismiss, as long as those documents are referred to in the complaint and are central to plaintiff's claims. IV. Analysis A. FDCPA Claims One of the purposes of the FDCPA is to eliminate the use of abusive, deceptive, and unfair debt collection practices by debt collectors. 15 U.S.C. relevant part, that: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (2) The false representation of--(A) the character, amount, or legal status of any debt; (5) The threat to take any legal action that cannot legally be taken or that is not intended to be taken.
§

Id. at 499.

1692(e). Section 1692e provides, in

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(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or obtain information concerning a consumer. A representation is not false for the purpose of
§

1692e unless

it would mislead the unsophisticated or least sophisticated consumer. Goswami v. Am. Collec