Clark v. Pinnacle Credit Services Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Ga.November 14, 2016

Active 29721864v1 234091.000103 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION ROBERT CLARK, Plaintiff, v. PINNACLE CREDIT SERVICES, VERIZON WIRELESS, and DOES 1-10 Inclusive. Defendants. CIVIL ACTION NO. 5:16-cv-00221-MTT DEFENDANTS’ MOTION TO DISMISS Pursuant to 12(b)(6) of the Federal Rules of Civil Procedure, Defendants Pinnacle Credit Services and Verizon Wireless (collectively “Defendants”) submit this Memorandum of Law in Support of Their Motion to Dismiss Plaintiff’s Complaint. In support of this Motion, Defendants rely upon their Memorandum of Law in Support of Defendants’ Motion to Dismiss, filed contemporaneously herewith, and all pleadings of record. This 14th day of November, 2016. /s/ Alexandria J. Reyes Alexandria J. Reyes Georgia Bar No. 428936 Troutman Sanders LLP 600 Peachtree Street, Suite 5200 Atlanta, GA 30308 404-885-3828 alex.reyes@troutmansanders.com Counsel for Defendants Case 5:16-cv-00221-MTT Document 12 Filed 11/14/16 Page 1 of 2 Active 29721864v1 234091.000103 CERTIFICATE OF SERVICE I hereby certify that on this day, I have electronically filed the foregoing Defendants’ Motion to Dismiss with the Clerk of Court using the CM/ECF system, which will automatically send notice of such filing to all counsel of record. This 14th day of November, 2016. /s/ Alexandria J. Reyes Alexandria J. Reyes Georgia Bar No. 428936 Case 5:16-cv-00221-MTT Document 12 Filed 11/14/16 Page 2 of 2 Active 29484989v3 234091.000103 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION ROBERT CLARK, Plaintiff, v. PINNACLE CREDIT SERVICES, VERIZON WIRELESS, and DOES 1-10 Inclusive. Defendants. CIVIL ACTION NO. 5:16-cv-00221-MTT MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS COME NOW Defendants Pinnacle Credit Services (“PCS”) and Verizon Wireless (“Verizon”; collectively “Defendants”) and, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, submit this Memorandum of Law in Support of Their Motion to Dismiss. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Robert Clark (“Plaintiff”) contends that “for years” Defendants made “multiple collection communications” to his cellular telephone number ending in -69601 regarding his cell phone bill from Verizon, without his permission. (Compl. ¶¶ 1, 19, 25-26, 42.) Plaintiff contends that he did not give his cellular telephone number to Defendants, and that he “expressly told them not to call in the beginning when the calls began.” (Compl. ¶¶ 33, 29.) He also contends that he “revoked any assumed authority that Defendant[s] might have thought they had 1 Plaintiff’s counsel has represented to Defendants’ counsel that this phone number identified in the Complaint is incorrect. Although Plaintiff’s counsel has not amended the Complaint, Plaintiff’s counsel contends that the correct phone numbers at issue end in -3043 and -7663. Defendants’ arguments in this Motion are the same with respect to the phone number identified in the Complain, as well as those provided by Plaintiff’s counsel. Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 1 of 9 2 Active 29484989v3 234091.000103 when he told them to stop calling the cell, but they continued calling the cell phone without permission.” (Compl. ¶ 34.) According to Plaintiff, the calls were made “[w]ithin four years immediately preceding the filing of this lawsuit,” meaning sometime between June 2012 and June 2016. (Compl. ¶ 24.) Plaintiff also contends that the calls were made to the cell phone number at issue via an Automated Telephone Dialer System (“ATDS”), and that many of the calls contained a pre- recorded and/or synthesized message. (Compl. ¶¶ 25-27.) Plaintiff filed his Complaint in this Court on June 14, 2016, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.; the Telephone Consumer Protection Act (“TCPA), 47 U.S.C. § 227 et seq.; the Georgia Fair Business Practices Act (“GFBPA”), O.C.G.A. § 10-1-390, et seq.; as well as claims for “invasion of privacy by intrusion upon seclusion,” “unreasonable collection practices,” “right to be left alone,” and punitive damages. (See Compl. ¶¶ 45-88.) STANDARD OF REVIEW “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 8(a)(2) (pleading must contain “short and plain statement of the claim showing that the pleader is entitled to relief”). A claim is “factually plausible” when the claimant pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1949-50. (emphasis Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 2 of 9 3 Active 29484989v3 234091.000103 added). Indeed, “[l]egal conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). ARGUMENT AND CITATION OF AUTHORITY I. Plaintiff Fails State a Claim for Violation of the FDCPA. Plaintiff attempts to assert a claim against PCS (not Verizon) for violation of the FDCPA. In support of this claim, he makes various vague allegations to a disputed credit report. He claims that the Defendants misreported the date of his report, and refused to mark his report as disputed. (See Compl. ¶¶ 47-48.) Without any factual content related to the purportedly disputed credit report, Plaintiff fails to state an FDCPA claim related to the report. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (A claim is “factually plausible” when the claimant pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). To the extent Plaintiff’s FDCPA claim is based on the credit report, it should be dismissed. Even if Plaintiff could allege a FDCPA claim against PCS, it would be time-barred. FDCPA claims must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). FDCPA case law disfavors the notion of a continuing violation or other doctrines that would permit later-in-time conduct to resurrect otherwise time-barred violations. See McNorrill v. Asset Acceptance, LLC, No. 1:14-cv-210, 2016 U.S. Dist. LEXIS 95216, *6 (S.D. Ga. July 21, 2016) (citing Gajewski v. Ocwen Loan Serv., Fed. App’x. , 2016 U.S. App. LEXIS 9548 (7th Cir. May 25, 2016)). Here, the alleged phone calls which purportedly give rise to Plaintiff’s FDCPA claim have occurred “for years” (Compl., ¶ 1), which necessarily means that any part of his claim Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 3 of 9 4 Active 29484989v3 234091.000103 based on the calls is time-barred. Plaintiff also alleges that Defendant erroneously marked his “credit report as opened in 2014.” (Compl., ¶ 47-48). Hence, to the extent Plaintiff’s FDCPA claim is based on this credit reporting issue, it is time-barred as well. Finally, there is no allegation in Complaint stating that Plaintiff’s debt was in default when PCS made the alleged phone calls or erroneously marked his credit report as opened in 2014. Without this necessary allegation, Plaintiff has failed to state a claim under the FDCPA. See, e.g., Church v. Accretive Health, Inc., Civil Action No. 14-57-WS-B, 2014 U.S. Dist. LEXIS 173199, *10-11 (S.D. Ala. Dec. 16, 2014) (“In conducting such a case-by-case analysis, courts have required (as a necessary but not a sufficient condition) that a pleading allege the debt to have been in default when the defendant acquired it, in order to state a viable claim under the FDCPA.”). II. Plaintiff Fails to Sufficiently Plead a Violation of the TCPA. Plaintiff fails to plead sufficient facts so as to substantiate his TCPA claim. His allegation that “the Defendants made numerous calls to the Plaintiff’s cellular telephone using an automatic telephone dialing system in violation of the TCPA” (Compl. ¶ 51) merely follows the language of the statute, but the Complaint wholly fails to provide any identifying information regarding the nature of the calls at issue. See, e.g., Speidel v. JP Morgan Chase & Co., No: 2:13- cv-852-FtM-29DNF, 2014 U.S. Dist. LEXIS 18437, *5-6 (M.D. Fla. Feb. 13, 2014) (dismissing plaintiff’s TCPA claim for failure to allege adequate factual support). It does not include any allegations related to the number of calls, the timing of the calls, or that the calls prevented Plaintiff from using his phone for other purposes. Therefore, Plaintiff’s TCPA claim is due to be dismissed. Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 4 of 9 5 Active 29484989v3 234091.000103 III. Plaintiff Fails to Plead Sufficient Facts to Support a Claim for Invasion of Privacy. In Count III of the Complaint, Plaintiff claims that Defendants “intentionally and/or negligently interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of these [sic] Plaintiff” by repeatedly calling Plaintiff in an attempt to collect a debt. (Compl. ¶ 63.) Plaintiff further alleges that these purported calls “invaded Plaintiff’s privacy especially after being told to stop calling.” (Compl. ¶ 64.) In Georgia, the tort of “intrusion upon seclusion” involves an intrusion into a person’s private concerns that would be offensive or objectionable to a reasonable person. Yarbray, 261 Ga. at 705 (citations omitted). Although highly personal questions or demands by “a person in authority” may be regarded as an intrusion on psychological solitude and therefore constitute an invasion of privacy, “there are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.” Id. (citations and punctuation omitted.) However, the nature of the intrusion need not be determined by this Court, as, in order to substantiate such an invasion of privacy claim, Plaintiff must allege facts that he was subjected to “a physical intrusion analogous to a trespass, as would be required to recover for an intrusion upon seclusion.” Davis v. Emmis Publ’g Corp., 244 Ga. App. 795, 797 (2000); see also Kobeck v. Nabisco, Inc., 166 Ga. App. 652, 654 (1983) (“…Georgia cases require that the intrusion must be physical, analogous to a trespass”); Cox Comm. v. Lowe, 173 Ga. App. 812, 814 (1985) (“…a physical intrusion analogous to a trespass [is] required to recover for an intrusion upon seclusion…”). The only conduct by Defendants that Plaintiff identifies as intruding upon his seclusion is “repeatedly and unlawfully attempting to collect a debt by calling Plaintiff’s cellular telephone[.]” (Compl. ¶ 63.) This allegation falls far short of meeting the type of Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 5 of 9 6 Active 29484989v3 234091.000103 “unreasonable” behavior that Georgia courts have found necessary to substantiate an intrusion upon seclusion claim. See Cabaniss v. Hipsley, 114 Ga. App. 367, 371 (1966) (examples of the type of unreasonable conduct required to substantiate an intrusion upon seclusion claim includes, e.g., intruding into a plaintiff’s hotel room by the house detective who mistakenly believed that unauthorized people were present; unauthorized and unlawful entry into a plaintiff’s house; placing eavesdropping equipment in a plaintiff’s hospital room for the purpose of listening to her conversations with her husband and others; mistaken identity in the making of an arrest without a warrant; and, upon wrongfully suspecting a plaintiff of having stolen certain goods, entering his house, breaking in and removing the goods) (citations omitted). While a complaint need not include elaborately detailed factual allegations, it must contain “more than a formulaic recitation of the elements of a legal cause of action.” Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, court is “not bound to accept as true a legal conclusion couched as a factual allegation”). Plaintiff’s invasion of privacy claim is exactly the type of formulaic recitation of the elements of a legal cause of action that the Supreme Court sought to eliminate in Twombly and utterly fails to allege the requisite intrusion necessary to substantiate their invasion of privacy claim. As Plaintiff has failed to make any factual allegations to support his invasion of privacy claim, or any factual allegations to support that Defendants’ conduct was anywhere near the type of “unreasonable” behavior necessary to support the claim, his invasion of privacy claim must be dismissed. IV. Plaintiff’s Georgia FBPA Claim Is Barred. The Georgia Fair Business Practices Act (“FBPA”) provides that, at least thirty days prior to the filing of any action under the FBPA, the plaintiff must send “a written demand for relief, Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 6 of 9 7 Active 29484989v3 234091.000103 identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered.” O.C.G.A. § 10-1-399(b). It is a statutory prerequisite to the filing of a FBPA suit that adequate written notice be timely sent, and failure to follow this requirement forecloses a party’s right to recover under the Act. Walker v. JPMorgan Chase Bank, N.A., 987 F. Supp. 2d 1348, 1354 (N.D. Ga. 2013) (dismissing FBPA claim with prejudice where plaintiff did not provide ante litem notice). Plaintiff has not alleged or shown that he provided such notice. Therefore, any purported FBPA claim fails and must be dismissed. Also, the FPBA provides that no action may be brought “[m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation.” O.C.G.A. § 10-1-401. To the extent that Plaintiff attempts to assert an FBPA claim for phone calls made prior to June 14, 2014, the FPBA’s statute of limitations bars the claim. V. Plaintiffs’ Claims for “Unreasonable Collection Practices” and “Right to Be Left Alone” Also Fail. Plaintiff’s purported claims for “unreasonable collection practices” (Count V, Compl. at ¶¶ 77-81) and “right to be left alone” (Count VI, id. at ¶¶ 82-86) are characteristic of what the Eleventh Circuit has termed a “shotgun pleading.” The Eleventh Circuit has identified several characteristics that typify shotgun pleadings including complaints that “contain[] several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts . . . contain irrelevant factual allegations and legal conclusions” Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) and combine “multiple claims together in one count,” Ledford v. Peeples, 568 F.3d 1258, 1278 (11th Cir. 2009). Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 7 of 9 8 Active 29484989v3 234091.000103 Plaintiff’s claims for “unreasonable collection practices” and “right to be left alone” do not, in fact, appear to be recognized causes of action in Georgia.2 Further, like the complaint in Strategic Income Fund, Plaintiff’s claims for “unreasonable collection practices” and “right to be left alone” claims all contain identical paragraphs that are inconsequential to the elements of some (if not all) of the relative causes of actions, to the extent those causes of action exist. The Eleventh Circuit has specifically instructed district courts to prohibit similar shotgun pleadings as fatally defective. See B.L.E. ex rel. Jefferson v. Georgia, 335 Fed. App’x 962, 963 (11th Cir. 2009); Guthrie v. Wells Fargo Home Mortg., N.A., 2014 U.S. Dist. LEXIS 102777, *22-23 (N.D. Ga. July 7, 2014) (dismissing shotgun pleading because plaintiffs’ shotgun complaint was inadequately and improperly pled, but allowing plaintiffs to amend because they were pro se). Counts V and VI of Plaintiff’s Complaint are similarly defective, and should be dismissed. CONCLUSION For the foregoing reasons, Defendants PCS and Verizon respectfully request that their Motion to Dismiss be granted and that Plaintiff’s Complaint be dismissed with prejudice. This 14th day of November, 2016. /s/ Alexandria J. Reyes Alexandria J. Reyes Georgia Bar No. 428936 Troutman Sanders LLP 600 Peachtree Street, Suite 5200 Atlanta, GA 30308 404-885-3828 alex.reyes@troutmansanders.com Counsel for Defendants 2 At best, courts have found that “the right to be left alone” is synonymous with the combined “invasion of privacy” torts. See Harris v. Thigpen, 727 F. Supp. 1564, 1571 (M.D. Ala. 1990) (describing the conglomerate of the four ‘right to privacy’ torts as the right ‘to be left alone’”) (citing Restatement (Second) of Torts, § 652 B (1977); 62 Am. Jur. 2d 718, Privacy § 26; Prosser, Torts 3rd ed., p. 832, § 112). That claim is due to be dismissed for the reasons discussed above in section III. Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 8 of 9 9 Active 29484989v3 234091.000103 CERTIFICATE OF SERVICE I hereby certify that on this day, I have electronically filed the foregoing Memorandum of Law in Support of Defendants’ Motion to dismiss with the Clerk of Court using the CM/ECF system, which will automatically send notice of such filing to all counsel of record. This 14th day of November, 2016. /s/ Alexandria J. Reyes Alexandria J. Reyes Georgia Bar No. 428936 Case 5:16-cv-00221-MTT Document 12-1 Filed 11/14/16 Page 9 of 9