Jones v. Medical Data Systems, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Tenn.October 19, 2016

28341581 v1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENVILLE WILMA JONES, on behalf of plaintiff and the class defined herein, Plaintiff, v. MEDICAL DATA SYSTEMS, INC., d/b/a MEDICAL REVENUE SERVICE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:16-cv-00250-TRM-MCLC MEDICAL DATA SYSTEMS, INC.’S MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT THEREOF Alan D. Leeth (BPR # 022358) J. Christopher Suedekum (BPR # 034462) BURR & FORMAN LLP 420 North 20th Street, Suite 3400 Birmingham, Alabama 35203 Telephone: (205) 251-3000 Facsimile: (205) 458-5100 aleeth@burr.com BURR & FORMAN LLP 511 Union Street, Suite 2300 Nashville, Tennessee 37219 Telephone: (615) 724-3237 Facsimile: (615) 724-3337 csuedekum@burr.com Attorneys for Defendant MEDICAL DATA SYSTEMS, INC. Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 1 of 29 PageID #: 331 ii 28341581 v1 TABLE OF CONTENTS PAGE I. INTRODUCTION..................................................................................................................... 1 II. FACTUAL BACKGROUND.................................................................................................. 2 III. ARGUMENT AND CITATION OF AUTHORITY........................................................... 5 A. Legal Standard ........................................................................................................ 5 B. Plaintiff has failed to state a valid claim against MDS under the FDCPA. ............ 6 1. MDS’s July 29, 2015 Letter was not required to include the specific term “creditor” to comply with section 1692g(a)(2). .......................................... 8 2. Credit reporting to Experian and TransUnion did not trigger any obligation for MDS to provide a section 1692g(a) validation notice......................... 13 3. Plaintiff’s section 1692e claims based on MDS’s use of a licensed trade name in the July 29, 2015 Letter to Plaintiff fail as a matter of law......... 17 a. MDS’s use of a licensed trade name in the July 29, 2015 Letter to Plaintiff was not “materially” false or misleading. ....................... 17 b. Plaintiff’s section 1692e claims are time-barred. ......................... 24 IV. CONCLUSION..................................................................................................................... 25 Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 2 of 29 PageID #: 332 28341581 v1 MEDICAL DATA SYSTEMS, INC.’S MOTION TO DISMISS FIRST AMENDED CLASS ACTION COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT THEREOF Pursuant to Fed. R. Civ. P. 8 and 12(b), defendant Medical Data Systems, Inc., d/b/a Medial Revenue Service (“MDS”), by and through its undersigned counsel, hereby submits its Motion to Dismiss the First Amended Class Action Complaint filed by plaintiff Wilma Jones (the “Plaintiff”). In support of its Motion to Dismiss, MDS respectfully states as follows: I. INTRODUCTION In her First Amended Class Action Complaint (ECF No. 9) against MDS, Plaintiff purports to assert a number of counts against MDS, all based on alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the “FDCPA”). Yet, at the core of these claims are several patently false legal assumptions, including: (1) that in identifying the hospital to which Plaintiff allegedly owes the $87.00 medical debt at issue in this case, MDS was required to include the specific term “creditor” to comply with section 1692g(a)(2) of the FDCPA (as opposed to what the statute actually requires, i.e. “the name of the creditor”); (2) that MDS’s credit reporting to a consumer reporting agency somehow qualifies as “the initial communication with a consumer” for purposes of section 1692g(a) of the FDCPA; and (3) that it is allegedly “false, deceptive, and misleading” under section 1692e of the FDCPA for MDS to use its “assumed” trade name in a letter regarding the $87.00 medical debt when it uses its incorporated name to report credit information for the same $87.00 debt, as the “assumed” name creates (in some unexplained way) confusion as to whether Plaintiff “owes two separate debts.” As shown below, none of Plaintiff’s claims have merit. First, nothing in the FDCPA required MDS to use the specific term “creditor” when identifying the hospital to which Plaintiff owed the medical debt. Instead, section 1692g(a)(2) required only that MDS provide her with “the name of the creditor,” which MDS undoubtedly satisfied. Second, a credit reporting agency Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 3 of 29 PageID #: 333 2 28341581 v1 is not a “consumer” as defined by the FDCPA. Thus, as a matter of law, MDS’s credit reporting to a consumer reporting agency cannot constitute “the initial communication with a consumer” for purposes of section 1692g(a). Third and finally, the FDCPA does not prohibit creditors and debt collectors from using an assumed name, registered trade name, or name under which the entity regularly does business. To the contrary, numerous federal courts have specifically condoned the practice. As such, it is not “materially” false or misleading under section 1692e for MDS to use its licensed trade name in a letter to Plaintiff concerning the $87.00 medical debt even if MDS uses its incorporated name when credit reporting the exact same $87.00 medical debt, let alone would such conduct “influence a consumer’s decision” or otherwise cause confusion as to the number of $87.00 medical debts that Plaintiff owes to the same hospital. For these and other reasons, all of Plaintiff’s claims should be dismissed, with prejudice. II. FACTUAL BACKGROUND The salient facts at issue are straightforward and, for purposes of this Motion to Dismiss, undisputed.1 Plaintiff initially filed suit against MDS on July 26, 2016. (See Class Action Complaint, ECF No. 1). In response, on September 9, 2016, MDS filed its initial Motion to Dismiss Class Action Complaint and Memorandum of Law in Support Thereof (ECF No. 4). On the same day, MDS also filed a Request for Judicial Notice in Support of Motion to Dismiss Class Action Complaint (ECF No. 5), as well as a Motion to Stay Discovery and Other Pretrial Deadlines and Memorandum of Law in Support Thereof (ECF No. 6). Notably, Plaintiff did not file a response to these filings. Rather, in an effort to avoid dismissal, Plaintiff elected to voluntarily amend her claims against MDS, and thus on October 3, 2016, filed the now-operative First Amended Class Action Complaint (ECF No. 9) (hereinafter the “Complaint”). 1 MDS does not dispute Plaintiff’s factual allegations at this stage solely for the purpose of this Rule 12(b)(6) Motion to Dismiss. However, MDS reserves its right to dispute Plaintiff’s factual allegations should any claim survive dismissal. Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 4 of 29 PageID #: 334 3 28341581 v1 All of the claims that Plaintiff asserts in her Complaint against MDS relate to an $87.00 medical debt that Plaintiff alleges MDS, “using the name Medical Data Systems, Inc. and an assumed name, Medical Revenue Service,” sought to collect from Plaintiff through a collection letter and credit reporting. (See Complaint ¶¶ 14-16). More specifically, Plaintiff’s claims arise out of a “collection letter dated July 29, 2015” that MDS, “using its assumed name, Medical Revenue Service,” allegedly sent to Plaintiff to collect the medical debt (hereinafter the “July 29, 2015 Letter”),2 and information regarding the medical debt that MDS allegedly reported to certain consumer reporting agencies (“CRAs”), as shown on Plaintiff’s November 25, 2015 credit reports from Experian Information Solutions, Inc. (“Experian”) and TransUnion LLC (“TransUnion”). (See id. ¶¶ 18-37). According to the Complaint, the July 29, 2015 Letter “was the initial communication received by Plaintiff from Medical Revenue Service in connection with collection of a debt.” (Id. ¶ 19). However, while the July 29, 2015 Letter identified the account number (“xxx4225”), the service date (“12/19/2013”), the balance owed (“$87.00”), and the patient name (“Jones, Wilma”) for the medical debt, and specified that the medical debt was owed to “Lakeway Regional Hospital” (i.e. the hospital in which Plaintiff incurred the debt), Plaintiff alleges that 2 A copy of the July 29, 2015 Letter is attached to Plaintiff’s Complaint as Exhibit 1, and is also attached hereto as Exhibit “A” for the Court’s convenience. Because the Letter is attached to Plaintiff’s Complaint, the Court may consider it for purposes of this Motion to Dismiss without converting the Motion to one for summary judgment. See Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (“In reviewing a motion to dismiss, the Court ‘may consider the [c]omplaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the [c]omplaint and are central to the claims contained therein.’” (quoting Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008))); see also Solo v. United Parcel Serv. Co., 819 F.3d 788, 794 (6th Cir. 2016) (recognizing that in ruling on a motion to dismiss, “[t]he court ‘consider[s] the complaint in its entirety, as well as . . . documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’” (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007))). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 5 of 29 PageID #: 335 4 28341581 v1 the July 29, 2015 Letter “does not name any person or entity as the creditor,” as it instead “refers to Lakeway Regional Hospital as the ‘Facility Name.’” (See id. ¶¶ 20-22, 26; see also July 29, 2015 Letter, attached hereto as Exhibit A). By not including the specific term “creditor” in the July 29, 2015 Letter, Plaintiff submits that “Medical Revenue Service failed to send Plaintiff a written notice containing the name of the creditor to whom the debt it is attempting to collect is owed, in violation of 15 U.S.C. § 1692g(a)(2).” (See Complaint ¶ 29). In contrast to the July 29, 2015 Letter, Plaintiff alleges that “her Experian and TransUnion credit reports dated November 25, 2015 . . . communicated that the original creditor for the debt is Lakeway Regional Hospital,” though again also showed that “the amount owed is $87.00.” (See Complaint ¶¶ 23-25). Plaintiff asserts that in October 2015, MDS reported this information to Experian and TransUnion using the name “Medical Data Systems, Inc.,” and that “[t]he initial reporting to either Experian or TransUnion was the initial communication from Medical Data to Plaintiff in connection with collection of a debt.” (See id. ¶¶ 15, 24-25, 32). Nevertheless, Plaintiff contends that “[w]ithin five (5) [days] after the initial communication in the form of the reporting of the debt to either Experian or TransUnion, Plaintiff had not paid the debt, and [MDS] had not sent Plaintiff a written notice that contained the statements required by 15 U.S.C. §§ 1692g(a)(3)-(5), in violation of 15 U.S.C. §§ 1692g(a)(3)-(5).” (Id. ¶ 34). In addition, “[b]y communicating with Plaintiff by sending a collection letter in the name of Medical Revenue Service, an assumed name, and credit reporting in the name of Medical Data Systems, Inc. for the same debt without disclosing in the communications that the entities are related or that each entity is attempting to collect the same debt as the other entity,” Plaintiff argues that MDS “made false, deceptive, and misleading representations that would be confusing Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 6 of 29 PageID #: 336 5 28341581 v1 to the least sophisticated consumer as to whether she owes two separate debts, in violation of 15 U.S.C. §§ 1692e, 1692e(2)(A), and 1692e(10).” (See id. ¶ 37). III. ARGUMENT AND CITATION OF AUTHORITY A. Legal Standard Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court should dismiss Plaintiff’s claims if, accepting the allegations as true, they fail to state facts that support relief. “The purpose of a Rule 12(b)(6) motion is ‘to test [against the legal standard set forth in Fed. R. Civ. P. 8] whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true.’” See Campbell v. Nationstar Mortg., 611 F. App’x 288, 291 (6th Cir. 2015) (quoting Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)); see also Acosta v. Campbell, 309 F. App’x 315, 317 (11th Cir. 2009). Thus, for a complaint to survive a Rule 12(b)(6) motion, it “must-when the record is construed in the light most favorable to the nonmoving party and when all well-pled factual allegations are accepted as true-contain ‘either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.’” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (quoting Phila. Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013)). Notably, “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.” Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) (“[The] procedure [outlined at Rule 12(b)(6)], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and factfinding.”) (citations omitted). In reviewing a complaint, however, courts “‘need not accept as true legal conclusions or unwarranted factual inferences, and conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.’” D’Ambrosio, 747 F.3d at 383 (quoting Terry v. Tyson Farms, Inc., 604 F.3d 272, 275-76 (6th Cir. 2010)). Thus, “[a] pleading that offers ‘labels and Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 7 of 29 PageID #: 337 6 28341581 v1 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (stating Rule 8 demands more than an unadorned, “the-defendant- unlawfully-harmed-me accusation” (quoting Twombly, 550 U.S. at 555, 557)). Instead, it “must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Yeager v. FirstEnergy Generation Corp., 777 F.3d 362, 363 (6th Cir. 2015), cert. denied, 136 S. Ct. 40 (2015) (citing D’Ambrosio, 747 F.3d at 383); Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012) (“[A] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) (citation and quotation marks omitted); see also Richter v. Fed. Nat’l Mortg. Ass’n, 553 F. App’x 655, 656 (8th Cir. 2014) (reiterating that “a plaintiff must show that success on the merits is ‘more than a sheer possibility’”) (citation omitted). B. Plaintiff has failed to state a valid claim against MDS under the FDCPA. The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). Thus, as the Seventh Circuit made clear in Bailey v. Security National Servicing Corp., the FDCPA is best used to “challeng[e] clear violations rather than scanning for technical missteps that bring minimal relief to the individual debtor but a possible windfall for the attorney.” See 154 F.3d 384, 388 (7th Cir. 1998). As a result, “[w]hether a debt collector’s conduct violates sections 1692e and 1692g of the FDCPA requires an objective analysis,” see Campbell v. Am. Recovery Servs. Inc., No. 2:15-cv-9079, 2016 WL 3219866, at *2 (C.D. Cal. June 8, 2016) (citing Gonzales v. Arrow Fin. Servs., Inc., 660 F.3d 1055, 1061 (9th Cir. 2011)); see also Walker v. Shermeta, Adams, Von Allmen, PC, 623 F. App’x 764, 766 (6th Cir. 2015) (reiterating that “‘[t]he test is objective’” (quoting Grden v. Leikin Ingber & Winters Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 8 of 29 PageID #: 338 7 28341581 v1 PC, 643 F.3d 169, 172 (6th Cir. 2011))), to determine whether the conduct “would mislead the ‘reasonable unsophisticated consumer,’ one with some level of understanding and one willing to read the document with some care,” see Buchanan v. Northland Grp., Inc., 776 F.3d 393, 396 (6th Cir. 2015) (quoting Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323, 327 (6th Cir. 2012)); see also Scheuer v. Jefferson Capital Sys., LLC, 43 F. Supp. 3d 772, 779 (E.D. Mich. 2014) (explaining that “[t]he Sixth Circuit has applied the ‘least sophisticated debtor’ test to claims under both section 1692e and 1692g(a)”) (citations omitted). While the “least sophisticated debtor” standard is in part designed to protect consumers, it “‘also protects law-abiding debt collectors’ in several important ways.” See Scheuer, 43 F. Supp. 3d at 780 (quoting Sanford v. Portfolio Recovery Assoc., LLC, No. 1:12-cv-11526, 2013 WL 3798285, at *7 (E.D. Mich. July 22, 2013)). For instance, it “‘prevent[s] liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care.’” See Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 592 (6th Cir. 2009) (quoting Fed. Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 509-10 (6th Cir. 2007)); see also Hardin v. Steinberg, No. 3:15- cv-512, 2016 WL 5717214, at *2 (E.D. Tenn. Sept. 30, 2016) (noting that “least sophisticated consumer standard . . . protects debt collectors against liability for ‘bizarre or idiosyncratic interpretations of collection notices’”) (citation omitted). “Stated differently, [courts] ‘will not ‘countenance lawsuits based on frivolous misinterpretations or nonsensical interpretations of being led astray.’” Miller, 561 F.3d at 592 (quoting Lamar, 503 F.3d at 514); see also Martin v. Trott Law, P.C., No. 2:15-cv-12838, 2016 WL 3997029, at *6 (E.D. Mich. July 26, 2016) (“‘[D]unning letters that appear misleading only by way of ‘bizarre,’ ‘idiosyncratic,’ or ‘nonsensical’ readings do not violate the Act.’” (quoting Buchanan, 776 F.3d at 396)). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 9 of 29 PageID #: 339 8 28341581 v1 In addition, the “least sophisticated debtor” standard also “protects debt collectors from liability where their statements could mislead only the most sophisticated reader and would not deceive a reader of ordinary or lesser sophistication.” See Scheuer, 43 F. Supp. 3d at 780. “In the words of the Sixth Circuit, the standard precludes FDCPA liability for a communication that could deceive only ‘a lawyer clos[ely] parsing [it] like a municipal bond offering.’” Id. (quoting Miller, 561 F.3d at 595). Accordingly, “‘when applying the least sophisticated debtor standard, a court does not read the subject collection notice ‘with the astuteness of a Philadelphia lawyer,’ but instead the court ‘give[s] it a common sense appraisal.’” Id. (quoting Miller, 561 F.3d at 595); see also White v. Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000) (Posner, J.) (“Any document can be misread. The Act is not violated by a dunning letter that is susceptible of an ingenious misreading, for then every dunning letter would violate it. The Act protects the unsophisticated debtor, but not the irrational one.”) (citation omitted); Lindley v. TRS Recovery Assocs., Inc., No. 2:12-cv-109, 2012 WL 6201175, at *2 (S.D. Tex. Dec. 12, 2012) (“The FDCPA does not protect consumers who intentionally distort communications or make irrational claims.” (citing McMurray v. ProCollect, Inc., 687 F.3d 665, 669 (5th Cir. 2012))). Here, Plaintiff alleges that MDS’s July 29, 2015 Letter and associated credit reporting in October 2015 (shown on her November credit reports) violated sections 1692e and 1692g of the FDCPA in three ways. As shown below, these claims are entirely without merit. 1. MDS’s July 29, 2015 Letter was not required to include the specific term “creditor” to comply with section 1692g(a)(2). Section 1692g(a) of the FDCPA provides in pertinent part that “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing . . . (2) the name of Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 10 of 29 PageID #: 340 9 28341581 v1 the creditor to whom the debt is owed.” 15 U.S.C. § 1692g(a). According to Plaintiff’s Complaint, MDS violated section 1692g(a)(2) because its July 29, 2015 Letter did not include the specific term “creditor” next to “Lakeway Regional Hospital” (where Plaintiff incurred the $87.00 medical debt), and instead “refer[red] to Lakeway Regional Hospital as the ‘Facility Name.’” (See Complaint ¶¶ 19-21, 26-29). This is exactly the kind of “‘bizarre,’ ‘idiosyncratic,’ or ‘nonsensical’ reading[]’” of the FDCPA that the Sixth Circuit was referring to in Miller and the other cases cited above. See supra Part II.B. Indeed, given a “common sense appraisal,” nothing about the July 29, 2015 Letter’s reference to “Facility” rather than “Creditor” is confusing, and Plaintiff simply has not, and cannot, show rationally otherwise. First and foremost, section 1692g(a)(2) of the FDCPA imposes absolutely no requirement to use the specific term “creditor” when sending validation notices. Rather, the plain language of the statute requires in pertinent part only that a debt collector “send the consumer a written notice containing . . . the name of the creditor to whom the debt is owed.” 15 U.S.C. § 1692g(a)(2) (emphasis added). Thus, it is the “name” of the creditor, not the term “creditor” itself, which must be provided. As a result, Plaintiff’s claim is, at its core, scarcely more than an improper attempt to re-write section 1692g(a)(2) so as to “add words” and “read requirements” into the statute that are simply not there, a tactic that courts have long condemned. See U.S. ex rel. Heineman-Guta v. Guidant Corp., 718 F.3d 28, 35 (1st Cir. 2013) (explaining that courts “will not ordinarily read requirements into a statute that ‘do not appear on its face.’” (quoting Dean v. United States, 556 U.S. 568, 572 (2009); GE Betz, Inc. v. Zee Co., 718 F.3d 615, 624-25 (7th Cir. 2013) (“A court has ‘no right, in the guise of construction of an act, to either add words to or eliminate words from the language used by congress.’”) (citation omitted); see also, e.g., United States v. Maslenjak, 821 F.3d 675, 682 (6th Cir. 2016) (reiterating default rule that courts must Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 11 of 29 PageID #: 341 10 28341581 v1 “‘resist reading words or elements into a statute that do not appear on its face’”) (citation omitted). Plaintiff’s section 1692g(a)(2) claim should be dismissed for this reason alone. Second, despite Plaintiff’s conclusory (and irrational) allegations to the contrary, it also cannot be disputed that the July 29, 2015 Letter identifies “Lakeway Regional Hospital” as the hospital “to whom [Plaintiff’s $87.00 medical] debt is owed,” and thus as the “creditor” for purposes of section 1692g(a)(2). (See Complaint ¶¶ 20-21 & Ex. 1 thereto; see also July 29, 2015 Letter, attached hereto as Exhibit A); see also 15 U.S.C. § 1692a(4) (defining “creditor” in relevant part as “any person . . . to whom a debt is owed”). Indeed, as numerous courts have recognized, the omission of the term “creditor” is irrelevant for purposes of section 1692g(a)(2) when, in context, there is no reasonable confusion with respect “to whom” the particular debt at issue “is owed.” For example, in Wright v. Phillips & Cohen Associates, Ltd., the Eastern District of New York addressed a strikingly similar section 1692g(a)(2) claim and, upon finding that the plaintiff’s creditor was “clearly indicated” in the letter at issue despite no reference to the specific term “creditor,” summarily dismissed it: Defendant’s July 6, 2012 letter to Plaintiff in no way “suggest[s] that the creditor is someone other than” PAG. Moreover, the least sophisticated consumer would not be uncertain as to his rights after reading Defendant’s July 6, 2012 letter. It is undisputed that the letter does, in fact, contain the name of the creditor to whom Plaintiff owes his debt, PAG. Although Defendant included the name of the current creditor, PAG, next to the label “Client,” rather than explicitly stating that PAG is the current creditor, any confusion such a label may have caused was alleviated by Defendant’s plain statement that the debt Defendant intended to collect was “on behalf of our above referenced client,” i.e., PAG. The least sophisticated consumer would have known, after reading the entirety of the letter, that Defendant sought to collect a debt on behalf of PAG, and that PAG was, therefore, the current creditor to whom he owed his debt. Plaintiff’s claim pursuant to 15 U.S.C. § 1692g(a)(2) is therefore dismissed. No. 2:12-cv-4281, 2014 WL 4471396, at *5 (E.D.N.Y. Sept. 10, 2014) (internal citations omitted); see also Hammett v. AllianceOne Receivables Mgmt., Inc., No. 2:11-cv-3172, 2011 WL 3819848, at *4 (E.D. Pa. Aug. 30, 2011) (“Plaintiff responds that the Letter’s sole reference Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 12 of 29 PageID #: 342 11 28341581 v1 to the original creditor was a line at the top of the page that read: ‘Client: PNC Bank.’ According to Plaintiff, this identification was misleading because the words ‘client’ and ‘creditor’ are not interchangeable, and because Defendant failed to provide PNC Bank’s full corporate name. . . . Defendant replies that when the Letter is read in its entirety - including the reference to Plaintiff’s account number - even the least sophisticated debtor would understand that the creditor was PNC Bank. . . . While the language chosen by Defendant to identify the creditor could have been more precise, the Court finds that it[] does not rise to the level of being false, deceptive, or misleading under the FDCPA.”) (internal citations omitted); see also Lindley v. TRS Recovery Assocs., Inc., No. 2:12-cv-109, 2012 WL 6201175, at *1-3 (S.D. Tex. Dec. 12, 2012) (finding that “‘customer’ is similarly equivalent to ‘creditor’ in the context of the subject letter,” and that the plaintiff’s section 1692g(a)(2) claim therefore failed as a matter of law).3 In this case, as in Wright, MDS’s July 29, 2015 Letter in no way suggests that the creditor of Plaintiff’s $87.00 medical debt is someone other than Lakeway Regional Hospital. To the contrary, “Lakeway Regional Hospital” is plainly identified as the hospital in which the “Account” (i.e. debt) numbered xxx4225 was incurred by “Jones, Wilma” (the “Patient Name”) 3 See also, e.g., Davis v. Lyons, Doughty & Veldhuis, P.A., 855 F. Supp. 2d 279, 284-85 (D. Del. 2012) (“The FDCPA requires an initial disclosure to state: ‘upon the consumer’s written request within the thirty-day period the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.’ Debt collectors must also identify the current creditor for whom they are working. . . . Defendant’s letter stated ‘this office represents Midland Funding LLC in connection with your account.’ This language is not deceptive. . . . [A]lthough the ‘least sophisticated debtor standard is low, the court should not find debt collectors liable for bizarre or idiosyncratic interpretations of collection notices.’ . . . The Defendant was required to identify the current creditor and notify the debtor that it would provide the name of the original creditor upon request. The Defendant’s letter met both of these requirements. The Court grants Defendant’s motion to dismiss . . . .”) (internal citations omitted); cf. Hye Park v. Shapiro & Swertfeger, LLP, No. 1:12-cv-1132, 2013 WL 603880, at *4 (N.D. Ga. Jan. 9, 2013) (determining for purposes of motion to dismiss that based on the context of the letters at issue, the court would interpret them as “implying that Wells Fargo is the ‘creditor’ even though that specific term is not used”), adopted by 2013 WL 603882 (N.D. Ga. Feb. 19, 2013). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 13 of 29 PageID #: 343 12 28341581 v1 on “12/19/2013” (the “Service Date”), and for which an “$87.00” (“Balance”) remains. (See Complaint ¶¶ 20-21 & Ex. 1 thereto; see also July 29, 2015 Letter, attached hereto as Exhibit A). Moreover, the July 29, 2015 Letter specifically clarifies that “Medical Revenue Service is a collection agency” and that the “account(s) indicated below [i.e. Account # xxx4225, incurred with Lakeway Regional Hospital] has been placed with our office for collection,” thereby answering any question (and alleviating any potential confusion) as to the relationship between Lakeway Regional Hospital and MDS, and MDS’s role as the debt collector for the $87.00 medical debt that Plaintiff incurred with Lakeway Regional Hospital. In addition, there is also no question (nor any contrary allegation in the Complaint) that Lakeway Regional Hospital is in fact the creditor to whom Plaintiff’s $87.00 medical debt is owed. (See generally Complaint ¶¶ 14-37). Rather, Plaintiff’s Complaint makes clear that every document that Plaintiff received or obtained regarding the $87.00 medical debt confirmed Lakeway Regional Hospital’s creditor status, including her Experian and TransUnion credit reports, which in no uncertain terms specifically stated it. (Id. ¶¶ 24-25 (“The Experian credit reports [sic] shows that Medical Data . . . communicated that the original creditor for the debt is Lakeway Regional Hospital, the amount owed is $87.00, and that the account is scheduled to continue on record until September 2020. . . . The TransUnion credit report shows that Medical Data . . . communicated that the original creditor for the debt is Lakeway Regional Hospital, the original amount owed is $87.00, and the estimated month and year that the item will be removed from Plaintiff’s TransUnion credit report is November 2020.”) (emphasis added)). Simply put, no “common sense appraisal” of the July 29, 2015 Letter under the “least sophisticated consumer” standard could lead to any rational interpretation other than Plaintiff’s $87.00 medical debt was incurred at and thus “is owed” to “Lakeway Regional Hospital,” which Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 14 of 29 PageID #: 344 13 28341581 v1 is exactly how the FDCPA defines the term “creditor,” see 15 U.S.C. § 1692a(4), and how the term “is commonly understood,” see Scheuer v. Jefferson Capital Sys., LLC, 43 F. Supp. 3d 772, 781 (E.D. Mich. 2014) (“The term ‘creditor’ is commonly understood to mean ‘one to whom a debt is owed.’”) (citation omitted). Plaintiff’s emphasis on the July 29, 2015 Letter’s reference to the term “Facility” rather than “Creditor” is therefore nothing more than a red herring, a “bizarre or idiosyncratic interpretation[]” of the Letter out of context that “could deceive only ‘a lawyer clos[ely] parsing [it] like a municipal bond offering.’” See Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 592 (6th Cir. 2009) (citation omitted); Scheuer, 43 F. Supp. 3d at 780 (citation omitted). Again, the FDCPA protects “the unsophisticated debtor, but not the irrational one.” White v. Goodman, 200 F.3d 1016, 1020 (7th Cir. 2000) (Posner, J.). Accordingly, Plaintiff’s section 1692g(a)(2) claim should be dismissed, with prejudice. 2. Credit reporting to Experian and TransUnion did not trigger any obligation for MDS to provide a section 1692g(a) validation notice. As noted above, “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt,” debt collectors are required to provide, unless “contained in the initial communication or the consumer has paid the debt,” a written notice to the consumer containing, among other things, the following: (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. See 15 U.S.C. § 1692g(a)(3)-(5). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 15 of 29 PageID #: 345 14 28341581 v1 Plaintiff contends that “[t]he initial reporting to either Experian or TransUnion was the initial communication from [MDS] to Plaintiff in connection with collection of a debt,” but that “[w]ithin five (5) [days] after the initial communication in the form of the reporting of the debt to either Experian or TransUnion, Plaintiff had not paid the debt, and [MDS] had not sent Plaintiff a written notice that contained the statements required by 15 U.S.C. §§ 1692g(a)(3)-(5).” (See Complaint ¶¶ 32-34). According to Plaintiff, the failure to provide such notice violates section 15 U.S.C. § 1692g(a)(3)-(5) of the FDCPA. (See id. ¶ 34). Again, Plaintiff’s claim has no merit. The event that triggers a debt collector’s obligation to provide a section 1692g(a) written validation notice is certain: “the initial communication with a consumer in connection with the collection of any debt.” 15 U.S.C. § 1692g(a) (emphasis added). The term “consumer” is also plainly defined to mean “any natural person obligated or allegedly obligated to pay any debt.” Id. § 1692a (emphasis added). Thus, as federal courts have universally held, CRAs such as Experian and TransUnion, i.e. artificial business entities organized as a corporation and limited liability company, respectively, see Azubuko v. MBNA Am. Bank, 396 F. Supp. 2d 1, 7 (D. Mass. 2005) (“Experian is a corporation . . . .”), aff’d by 179 F. App’x 66 (1st Cir. 2006); see also In re Stamps, No. 1:05-bk-3724, 2006 WL 2604605, at *2 (Bankr. N.D. Iowa Sept. 6, 2006) (“TransUnion LLC (‘TransUnion’) is a limited liability company.”), simply do not qualify as “consumers” under the FDCPA’s definition of the term. See, e.g., Martin v. United Collections Bureau, Inc., No. 4:14-cv-804, 2015 WL 4255405, at *8 (E.D. Mo. July 14, 2015) (“[C]redit reporting does not qualify as an initial communication with a consumer for purposes of § 1692g(a). The FDCPA defines ‘consumer’ as ‘any natural person obligated or allegedly obligated to pay any debt.’ The definition of ‘consumer’ does not include CRAs, which are business entities rather than ‘natural person[s].’ Thus, any party to whom a debt is reported but Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 16 of 29 PageID #: 346 15 28341581 v1 who is not at least allegedly obligated to pay the debt is not a ‘consumer’ under the FDCPA. Other courts within the Eighth Circuit and elsewhere have held likewise. Thus, Plaintiff’s claim under § 1692g(a) fails as a matter of law.”) (internal citations omitted). For that reason, credit reporting to CRAs does not, and cannot, constitute an “initial communication with a consumer” so as to trigger the obligation to provide a section 1692g(a) validation notice: Did Defendant convey information regarding the debt directly or indirectly to Plaintiff through reporting the past-due account to the credit reporting agencies? The Court has not discovered, and Plaintiff has not provided any case law which supports such a staggeringly broad reading of the statute. Such a reading would impose notification requirements any time a creditor made any communication regarding any past due account, in case such information eventually made its way to the debtor. Regardless of policy considerations, the plain language of the statute controls. Defendant conveyed information to the credit reporting agencies about Plaintiff. That this information eventually made its way to Plaintiff is too far removed from Defendant’s act to trigger the notice requirements of § 1692g(a). Toth v. Cavalry Portfolio Servs., LLC, No. 2:13-cv-01397, 2013 WL 5658168, at *2 (D. Nev. Oct. 16, 2013); see also Edeh v. Aargon Collection Agency, LLC, No. 0:10-cv-4475, 2011 WL 2963855, at *4 (D. Minn. June 20, 2011) (“Here, Plaintiff alleges that Defendant reported the debt to the credit reporting agencies and that this constituted an ‘initial communication’ under the statute. But as noted above, the credit reporting agencies are not ‘natural person[s].’ Nor are they obligors or alleged obligors of the debt. Thus, the reporting companies are not ‘consumers’ under the FDCPA, and Aargon’s reporting of the debt to these agencies did not trigger any notification obligations under § 1692g(a). Accordingly, Count IV of Plaintiff’s Third Amended Complaint should be dismissed for failure to state a claim for which relief can be granted.”), adopted by 2011 WL 2910750 (D. Minn. July 20, 2011).4 4 See also Perry v. Trident Asset Mgmt., L.L.C., No. 4:14-cv-1004, 2015 WL 417588, at *3 (E.D. Mo. Feb. 2, 2015) (“The language of the FDCPA and current case law both support Defendant’s position that a report to a credit reporting agency is not a ‘communication with a consumer.’ . . . Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 17 of 29 PageID #: 347 16 28341581 v1 As shown above, Plaintiff’s allegation in the Complaint that MDS’s initial credit reporting “to either Experian or TransUnion was the initial communication from [MDS] to Plaintiff in connection with collection of a debt,” (see Complaint ¶ 32), is a clear misstatement of the law. Experian and TransUnion “are business entities rather than ‘natural person[s]’” and “consumers” as defined by the FDCPA, see Martin, 2015 WL 4255405, at *8, and though MDS’s alleged credit reporting “eventually made its way to Plaintiff,” that result “is too far removed from [MDS]’s act to trigger the notice requirements of § 1692g(a),” see Toth v. Cavalry Portfolio Servs., LLC, No. 2:13-cv-01397, 2013 WL 5658168, at *2. Plaintiff’s section 1692g(a)(3)-(5) claim based on MDS’s alleged credit reporting to the CRAs therefore fails as a matter of law, and should be dismissed, with prejudice.5 The term ‘consumer’ is defined as ‘any natural person obligated or allegedly obligated to pay any debt.’ The credit reporting agencies are clearly not ‘consumers’ as that term is defined in the statute, because they are business entities rather than natural persons and because they are not obligated to pay the debt at issue. Plaintiff suggests that by conveying information to the credit reporting agency, Defendant indirectly conveyed it to Plaintiff, and therefore Defendant made a ‘communication with a consumer.’ However, that stretches the meaning of ‘communication with a consumer’ too far. . . . Plaintiff’s argument, if accepted, would essentially read ‘with a consumer’ out of the statutory language . . . .”) (internal citations omitted). 5 In addition, even if credit reporting to a CRA could be construed as an indirect communication “with” a consumer - and, again, courts universally hold that it is not - Plaintiff’s section 15 U.S.C. § 1692g(a)(3)-(5) claim would still fail as a matter of law because MDS’s alleged credit reporting regarding the $87.00 medical debt to Experian and TransUnion in October 2015 occurred after MDS allegedly sent the July 29, 2015 Letter to Plaintiff concerning the exact same $87.00 medical debt. (See Complaint ¶¶ 14-16, 18-19, 23-25 & Ex. 1 thereto; see also July 29, 2015 Letter, attached hereto as Exhibit A). As such, the October 2015 reporting could not constitute MDS’s “initial” communication with Plaintiff in connection with the collection of the $87.00 medical debt, which instead had already occurred (at the latest) months earlier. See, e.g., Molesky v. State Collection & Recovery Servs., LLC, No. 3:12-cv-2639, 2015 WL 5746835, at *9-10 (N.D. Ohio Sept. 30, 2015) (reiterating “the common-sense conclusion reached by other courts that ‘there can be only one ‘initial communication’ between a debt collector and a consumer, and any communication that follows the ‘initial communication’ is necessarily not an ‘initial’ communication.’” (quoting Peterson v. Portfolio, 430 F. App’x 112, 114-15 (3rd Cir. 2011))); Paris v. Steinberg & Steinberg, 828 F. Supp. 2d 1212, 1222 (W.D. Wash. 2011) (“By using the singular when referring to ‘initial communication,’ Congress contemplated only one initial communication with a debtor on a given debt.”) (citation omitted). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 18 of 29 PageID #: 348 17 28341581 v1 3. Plaintiff’s section 1692e claims based on MDS’s use of a licensed trade name in the July 29, 2015 Letter to Plaintiff fail as a matter of law. Section 1692e of the FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” which under section 1692e(2)(A) includes “[t]he false representation of . . . the character, amount, or legal status of any debt,” and under section 1692e(10) includes “[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” See 15 U.S.C. § 1692e, 1692e(2)(A), 1692e(10). In her Complaint, Plaintiff alleges that “[b]y communicating with Plaintiff by sending a collection letter in the name of Medical Revenue Service, an assumed name, and credit reporting in the name of Medical Data Systems, Inc. for the same debt without disclosing in the communications that the entities are related or that each entity is attempting to collect the same debt as the other entity,” MDS “made false, deceptive, and misleading representations that would be confusing to the least sophisticated consumer as to whether she owes two separate debts,” and as a result violated sections 1692e, 1692e(2)(A), and 1692e(10) of the FDCPA. (See Complaint ¶ 37). For at least two reasons, Plaintiff’s claims are entirely without merit and should be dismissed. a. MDS’s use of a licensed trade name in the July 29, 2015 Letter to Plaintiff was not “materially” false or misleading. The Sixth Circuit has “repeatedly held” that it is not enough for a statement to be “technically false” or “misleading” to violate the FDCPA; instead, “‘a statement must be materially false or misleading.’” See Scheuer v. Jefferson Capital Sys., LLC, 43 F. Supp. 3d 772, 783 (E.D. Mich. 2014) (quoting Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012)); see also Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir. 2009) (agreeing that “‘[m]ateriality is an ordinary element of any federal claim based on a false or misleading statement,’” and that there is “no ‘reason why materiality should not equally be Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 19 of 29 PageID #: 349 18 28341581 v1 required in an action based on § 1692e’” (quoting Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757 (7th Cir. 2009) (Easterbrook, J.))). “‘The materiality standard . . . means that in addition to being technically false, a statement would tend to mislead or confuse the reasonable unsophisticated consumer.’” Clark v. Lender Processing Servs., 562 F. App’x 460, 466 (6th Cir. 2014) (quoting Wallace, 683 F.3d at 326-27). In other words, “not all misleading statements are actionable; [instead,] a misleading statement must have the ability to influence a consumer’s decision.” See Hegwood v. Lighthouse Recovery Assoc., LLC, No. 2:11-cv-292, 2012 WL 693658, at *2 (N.D. Ind. Mar. 1, 2012) (citing O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 941-42 (7th Cir. 2011)) (emphasis added); see also Muha v. Encore Receivable Mgmt., Inc., 558 F.3d 623, 628 (7th Cir. 2009) (Posner, J.) (“The purpose of the [FDCPA] is to protect consumers, and they don’t need protection against false statements that are immaterial in the sense that they would not influence a consumer’s decision-in the present context his decision to pay a debt in response to a dunning letter.” (citing Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1056 (8th Cir. 2002))); see also Scheuer, 43 F. Supp. 3d at 783 (“A misstatement is material under the FDCPA if it ‘frustrate[s] a consumer’s ability to intelligently choose his or her response.’” (quoting Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010))) (emphasis added); Stewart v. Bureaus Inv. Grp., LLC, No. 3:10-cv-1019, 2015 WL 7572312, at *15 (M.D. Ala. Nov. 24, 2015) (recognizing that “[t]o preserve the reasonableness of the FDCPA’s application, courts should, in most cases, only impose liability where the misrepresentations at issue actually affect the consumer’s behavior”) (emphasis added); Sanford v. Portfolio Recovery Assocs., LLC, No. 1:12-cv-11526, 2013 WL 3798285, at *11 (E.D. Mich. July 22, 2013) (reiterating that “‘[t]he statute is designed to provide information that helps consumers to choose intelligently, Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 20 of 29 PageID #: 350 19 28341581 v1 and by definition immaterial information neither contributes to that objective (if the statement is correct) nor undermines it (if the statement is incorrect)” (quoting Hahn, 557 F.3d at 757-58)). At the outset, a debt collector’s use of an assumed name, registered trade name, or name under which it regularly does business in a letter to a debtor is not false, deceptive, or misleading under the FDCPA. In fact, whether discussing the name by which debt collectors and creditors should use in communications with borrowers to identify the creditor for a particular debt, or the name by which debt collectors should use in such communications to identify themselves, federal courts have consistently held that it is permissible under the FDCPA to use the entity’s “‘full business name, the name under which it usually transacts business, or a commonly-used acronym.’” See Mahan v. Retrieval-Masters Credit Bureau, Inc., 777 F. Supp. 2d 1293, 1299- 1300 & n.6, 1302 (S.D. Ala. 2011) (finding that “all claims (whether under § 1692e(14) or any other subsection) alleging that defendant violated the FDCPA by using a false name or any name other than its ‘true name’ . . . are dismissed with prejudice” because “[n]umerous federal courts have . . . determined that . . . a debt collector does not violate § 1692e(14) by using the registered or licensed name under which it transacts business - rather than its formal corporate name - in debt collection communications”) (citations omitted); see also Everage v. Nat’l Recovery Agency, No. 2:14-cv-2463, 2015 WL 1071757, at *4 (E.D. Pa. Mar. 11, 2015) (finding debt collector’s identification of itself as both “National Recovery Agency” and “NRA Group” did not violate FDCPA because “National Recovery Agency” was NRA Group, LLC’s registered trade name and there were no allegations that use of either name misled debtor as to identity of debt collector or purpose of communications); Orenbuch v. N. Shore Health Sys., Inc., 250 F. Supp. 2d 145, 151-52 (E.D.N.Y. 2003) (“The plaintiff claims that [North Shore Health System, Inc.] violated Section 1692e(14) . . . . The defendants correctly argue that there is nothing Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 21 of 29 PageID #: 351 20 28341581 v1 misleading about a debt collector . . . using the name by which it is known to the public where, as here, that name [Regional Claims Recovery Service] is a registered trade name with the New York Department of State. . . . [B]ecause RCRS letters refer to RCRS’s true name, it does not constitute a ‘false deceptive or misleading representation.’”) (citations omitted) (emphasis added); see also Blarek v. Encore Receivable Mgmt., Inc., No. 2:06-cv-420, 2007 WL 984096, at *16 (E.D. Wis. Mar. 27, 2007) (“[T]he use of a name which is not the exact incorporated name of the creditor does not necessarily violate § 1692e(10) . . . . The debt collector might not be making a false representation if it used in identifying the creditor ‘a name under which [the creditor] usually transacts business, or a commonly-used acronym, or any name that it has used from the inception of the credit relation.’”) (citation omitted).6 Moreover, not only have federal courts expressly recognized that debt collectors may use an assumed name or registered trade name when communicating with borrowers, courts have time and again also held that this practice is not “materially” false or misleading for purposes of section 1692e because it “is not likely to cause the least sophisticated consumer to change her behavior or cause her to pay a debt that she otherwise would have challenged.” See Stewart, 2015 WL 7572312, at *17 (emphasis added); Campbell v. Am. Recovery Servs. Inc., No. 2:15- cv-9079, 2016 WL 3219866, at *3 (C.D. Cal. June 8, 2016) (“[T]his Court finds that ARSI’s letter would not be likely to mislead the least sophisticated consumer because ‘American 6 See also cf. Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366, 1376 (N.D. Ga. 2012) (dismissing FDCPA claim despite the plaintiff’s allegations that “Defendants have “interchangeably used several different names,” including name under which it consistently did business); Fox v. HSBC Mortg. Servs., Inc., No. 3:06-cv-87, 2009 WL 129797, at *5 (E.D. Tenn. Jan. 16, 2009) (recognizing that to comply with section 1692a(6), “‘a creditor should use the name under which it usually transacts business, or a commonly-used acronym, or any name that it has used from the inception of the credit relation’”) (citations and internal quotation marks omitted); see also, c.f., Kemmons Wilson, Inc. v. Allied Bank of Texas, No. 02A01- 9107CF00131, 1992 WL 1982, at *4 (Tenn. Ct. App. Jan. 3, 1992) (recognizing that “Tennessee law authorize[s] a corporation to operate under an assumed name or trade name”). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 22 of 29 PageID #: 352 21 28341581 v1 Express’ is a commonly used name under which the business usually transacts. Therefore, ARSI’s representation of the creditor as ‘American Express’ in its letter is not a material misrepresentation, and thus is not actionable under § 1692e. The Court GRANTS ARSI’s Motion [to Dismiss] with respect to Plaintiff’s section 1692e claim.”). Indeed, absent allegations showing that the consumer was “actually misled” and “would have behaved differently had the complaint made use of the correct name,” even the straightforward misidentification of a debt collector or creditor is not sufficient to state a claim under section 1692e. See Stewart, 2015 WL 7572312, at *17 (“The . . . Complaint is devoid of allegations suggesting that the false name actually misled Ms. Stewart. The use of the name ‘Bureaus Investment Group # 1, LLC’ in place of the name ‘Bureaus Investment Group Portfolio No. 1, LLC’ is not likely to cause the least sophisticated consumer to change her behavior or cause her to pay a debt that she otherwise would have challenged. And Ms. Stewart does not allege that she would have behaved differently had the complaint made use of the correct name. Accordingly, the misidentification of the owner of the debt is immaterial, and thus is not actionable under § 1692e(2)(A).”); see also Duffey v. Nationstar Mortg., 614 F. App’x 330, 334 (6th Cir. 2015) (affirming dismissal of section 1692e claim where defendant’s letter misidentified servicer as “Duetsche Bank National Trust Company” rather than “Bank of America” because letter still “identifie[d] the correct entity to contact,” the plaintiffs “never claim[ed] that the misidentification caused them to contact the wrong party or otherwise delay in acting,” and the letter “would not tend to mislead or confuse the reasonable unsophisticated consumer”); see also Everage, 2015 WL 1071757, at *5-7 (denying motion to amend complaint to assert section 1692e(10) claim based on defendant’s allegedly misleading identification of creditor as “Radiology Affiliates” in one communication and “Nazareth Hospital” in later communication as “futile” because medical charges at issue Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 23 of 29 PageID #: 353 22 28341581 v1 were from Radiology Affiliates and arose from treatment at Nazareth Hospital, and thus least sophisticated debtor would not be confused as to whether communications related to same debt).7 Here, Plaintiff bases her section 1692e claims entirely on the allegation that it is “false, deceptive, and misleading” for MDS to use its “assumed” trade name in the July 29, 2015 Letter regarding the $87.00 medical debt when it used its incorporated name to report credit information for the same $87.00 medical debt. (See Complaint ¶ 37). Yet, as explained above, “there is nothing misleading about a debt collector . . . using the name by which it is known to the public where, as here, that name [Medical Revenue Service] is a registered trade name with the [Tennessee] Department of State.” See Orenbuch, 250 F. Supp. 2d at 151-52 (citations omitted) (emphasis added); see also Everage, 2015 WL 1071757, at *4 (same); Mahan, 777 F. Supp. 2d at 1299-1300 & n.6, 1302 (same). Indeed, there is no dispute in this case that “Medical Revenue Service” is the registered “assumed” trade name of MDS, and the licensed name under which MDS regularly does business, as Plaintiff not only specifically alleges this fact, (see Complaint ¶¶ 1, 5, 14, 16, 18, 35-37 (“This action arises out of violations of the [FDCPA] by Defendant Medical Data Systems, Inc., d/b/a Medical Revenue Service . . . . Medical Data, using its assumed name, Medical Revenue Service, sent Plaintiff a form collection letter dated July 29, 2015 . . . .”)), but it is also conclusively shown by the Tennessee Secretary of State Division of Business Services government website page for “Medical Data Systems, Inc.,” which is attached hereto as Exhibit “B,” as well as by the Florida Office of Financial Regulation government 7 See also, e.g., Stewart, 2015 WL 7572312, at *19 (“The sorts of misrepresentations giving rise to § 1692e(10) liability are those that would lead a debtor to pay a debt that he otherwise would have challenged. . . . As for the misstatement of the entity’s name, it is unclear how this constitutes a misrepresentation that would mislead even the least sophisticated consumer. The pleadings do not indicate that Ms. Stewart would have acted differently had Bureaus Investment Group Portfolio No. 1, LLC correctly identified itself and its legal status in strictest terms. . . . And it is difficult to see how this misstatement of the entity’s name would mislead any other unsophisticated creditor into paying the debt it owed.”) (citations omitted) (emphasis added). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 24 of 29 PageID #: 354 23 28341581 v1 website page for MDS, which is attached hereto as Exhibit “C.” See also Tenn. Sec’y of State, Division of Business Services, Business Entity Detail for “Medical Data Systems, Inc.,” https://tnbear.tn.gov/Ecommerce/FilingDetail.aspx?CN=21623604207320517920613503807813 9184129005085199 (last visited Oct. 18, 2016); Fla. Office of Financial Regulation, License Search Results Detail for License Name “Medical Data Systems Inc.,” https://real.flofr.com/ConsumerServices/SearchLicensingRecords/SearchDetail.aspx?licNum=C CA0900156&licDesc=CCA (last visited Oct. 18, 2016).8 Furthermore, Plaintiff’s Complaint is also “devoid of allegations suggesting that the” use of “Medical Revenue Service” as opposed to MDS “actually misled” Plaintiff, or that Plaintiff “would have behaved differently had the [July 29, 2015 Letter] made use of the correct name.” See Stewart, 2015 WL 7572312, at *17. For one thing, just as the Sixth Circuit recognized when affirming the dismissal of the plaintiff’s complaint in Duffey, it is clear that the July 29, 2015 8 Pursuant to Fed. R. Evid. 201, MDS requests that the Court take judicial notice of Exhibits B and C on the grounds that the facts established by these government website pages are expressly referenced in Plaintiff’s Complaint, and because they are each a “public record” whose source “cannot reasonably be questioned.” See AutoZone, Inc. v. Glidden Co., 737 F. Supp. 2d 936, 942 (W.D. Tenn. 2010) (holding that “the Court may also consider . . . ‘matters of which a court may take judicial notice’” without converting a motion to dismiss to one for summary judgment, and that “[a]ppropriate subjects of judicial notice include matters of public record . . . .” (citing Doe v. SexSearch.com, 551 F.3d 412, 416 (6th Cir. 2008))); see also Overall v. Ascension, 23 F. Supp. 3d 816, 824-25 (E.D. Mich. 2014) (“The Court may take judicial notice of public documents and government documents because their sources ‘cannot reasonably be questioned.’”) (citation omitted); Arvest Bank v. Byrd, 814 F. Supp. 2d 775, 787 n.4 (W.D. Tenn. 2011) (“The Court takes judicial notice that Arvest is listed on the Arkansas Secretary of State’s website as an Arkansas bank with its principal address in Arkansas.”); Mahan, 777 F. Supp. 2d at 1298 & n.4 (explaining that it is “proper” to take judicial notice of a public record from the New York Department of State showing that the defendant “conduct[ed] business under [an] assumed name” and “showing that ‘American Medical Collection Agency’ is [the] defendant’s duly registered trade name”); Glob. Elec. Sols., Inc. v. Energy Automation Sys., Inc., No. 3:08-cv-619, 2009 WL 463981, at *2 (M.D. Tenn. Feb. 23, 2009) (“[T]he Court takes judicial notice of . . . the public filings from the Texas Secretary of State.”). Under Rule 201(c), while a district court “may take judicial notice on its own,” a district court “must take judicial notice ‘if requested by a party and supplied with the necessary information.’” See In re Unumprovident Corp. Sec. Litig., 396 F. Supp. 2d 858, 875 (E.D. Tenn. 2005) (citation omitted). Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 25 of 29 PageID #: 355 24 28341581 v1 Letter “identifies the correct entity to contact,” and that Plaintiff therefore cannot allege that the references to “Medical Revenue Service” caused her “to contact the wrong party or otherwise delay in acting.” See Duffey, 614 F. App’x at 334; (see also Complaint ¶ 20 & Ex. 1 thereto; see also July 29, 2015 Letter, attached hereto as Exhibit A (specifying that the July 29, 2015 Letter was sent by “Medical Revenue Service” and that all inquiries, requests, and questions should be directed to Medical Revenue Service, and providing toll free number and address information for Medical Revenue Service)). As such, while Plaintiff alleges (in conclusory fashion) that MDS’s use of its assumed name in the July 29, 2015 Letter regarding the $87.00 medical debt (when it used its incorporated name to report credit information for the same $87.00 debt) creates confusion as to whether Plaintiff “owes two separate debts,” this allegation is not merely irrational in and of itself, as the least sophisticated consumer would not be confused as to the number of $87.00 medical debts (with the same account number) that the consumer owed to the exact same hospital for services incurred on the exact same day, it is also patently insufficient for purposes of section 1692e. See, e.g., Muha v. Encore Receivable Mgmt., Inc., 558 F.3d 623, 628 (7th Cir. 2009) (Posner, J.) (“The purpose of the [FDCPA] is to protect consumers, and they don’t need protection against false statements that are immaterial in the sense that they would not influence a consumer’s decision-in the present context his decision to pay a debt in response to a dunning letter.”); see also Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596-97 (6th Cir. 2009). Because MDS’s use of its assumed name is not “materially” false or misleading, Plaintiff’s section 1692e claims should therefore be dismissed, with prejudice. b. Plaintiff’s section 1692e claims are time-barred. The FDCPA imposes a one-year statute of limitations. 15 U.S.C. § 1692k(d) (“An action to enforce any liability created by this subchapter may be brought . . . within one year from the date on which the violation occurs.”). As a result, “an FDCPA action generally must be brought Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 26 of 29 PageID #: 356 25 28341581 v1 ‘within one year from the date on which the violation occurs.’” Slorp v. Lerner, Sampson & Rothfuss, 587 F. App’x 249, 257 (6th Cir. 2014) (quoting 15 U.S.C. § 1692k(d)) (emphasis added); see also Goodson v. Bank of Am., N.A., 600 F. App’x 422, 429 (6th Cir. 2015) (finding FDCPA claims based on allegedly improper collection letters “time-barred because they were sent more than one year before [the plaintiff] filed her FDCPA claim”). In this case, Plaintiff again bases her section 1692e claims solely on the allegation that it is “false, deceptive, and misleading” for MDS to use its “assumed” name (“Medical Revenue Service”) in the July 29, 2015 Letter regarding the $87.00 medical debt when it used its incorporated name (“Medical Data Systems, Inc.”) to report credit information for the same debt. (See Complaint ¶ 37). However, Plaintiff did not file her First Amended Class Action Complaint until October 3, 2016, well over “one year from the date on which” MDS allegedly sent the July 29, 2015 Letter. (See ECF No. 9). Moreover, because these new claims “rel[y] on a whole new set of facts” relating to MDS’s use of its assumed name versus its incorporated name that were “not at issue” in Plaintiff’s original Class Action Complaint, the original Class Action Complaint did not put MDS “on notice” that it “‘could be called to answer for the allegations in the amended pleading,’” and thus Plaintiff’s new claims do not “relate back” to that filing. See, e.g., Avila v. Riexinger & Assocs, LLC, 644 F. App’x 19, 23 (2d Cir. 2016); see also Durand v. Hanover Ins. Grp., Inc., 806 F.3d 367, 375 (6th Cir. 2015) (affirming that amendment did not “relate back” to original complaint because “there is no identity with regard to the ‘general conduct’ alleged to cause Plaintiffs’ injury”) (citations omitted). Accordingly, Plaintiff’s section 1692e claims are time-barred and, for this additional reason, should be dismissed, with prejudice. IV. CONCLUSION For all of these reasons, MDS respectfully requests that this Court grant its Motion to Dismiss and dismiss Plaintiff’s First Amended Class Action Complaint, with prejudice. Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 27 of 29 PageID #: 357 26 28341581 v1 Respectfully submitted this 19th day of October, 2016. s/ Alan D. Leeth Alan D. Leeth (BPR # 022358) J. Christopher Suedekum (BPR # 034462) BURR & FORMAN LLP 420 North 20th Street, Suite 3400 Birmingham, Alabama 35203 Telephone: (205) 251-3000 Facsimile: (205) 458-5100 aleeth@burr.com BURR & FORMAN LLP 511 Union Street, Suite 2300 Nashville, Tennessee 37219 Telephone: (615) 724-3237 Facsimile: (615) 724-3337 csuedekum@burr.com Attorneys for Defendant MEDICAL DATA SYSTEMS, INC. Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 28 of 29 PageID #: 358 28341581 v1 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served on the following by Notice of Electronic Filing, or, if the party served does not participate in Notice of Electronic Filing, by U.S. First Class Mail on this the 19th day of October, 2016: Alan C. Lee P.O. Box 1357 Talbott, Tennessee 37877-1357 Telephone: (423) 581-0924 aleeattorney@gmail.com s/ Alan D. Leeth Of Counsel Case 2:16-cv-00250-TRM-MCLC Document 11 Filed 10/19/16 Page 29 of 29 PageID #: 359 Exhibit “A” [July 29, 2015 Collection Letter] Case 2:16-cv-00250-TRM-MCLC Document 11-1 Filed 10/19/16 Page 1 of 2 PageID #: 360 645 WALNUT STREET STE 5 GADSDEN, AL 35902 Reference 4225 Toll Free Number (866)451-1216 Total Amount Due $87.00 07/29/2015 39809*TER0R7856005109 iH'"»Mih'" In'lllll'il,'il'll"»iill"ii' WILMA JONES MORRISTOWN, TN 37814-2157 t- □ CHECK HERE IF ADDRESS OR INSURANCE INFORMATION ISINCORRECT AND INDICATE CHANGE ON REVERSE SIDE MEDICAL REVENUE SERVICE 645 WALNUT STREET STE 5 GADSDEN, AL 35902 07/29/2015 CHECK CARD USING FOR PAYMENT w □ | , , , , | □ 3 g u m i u CARD NUMBER SIGNATURE CODE AMOUNT EXP. DATE SIGNATURE MAKE CHECK PAYABLE AND REMIT TO: MEDICAL REVENUE SERVICE 645 WALNUT STREET STE 5 GADSDEN, AL 35902 i«|ii|iii|iii|i|i|iili>ii|n,i,|||l.-,|i,i,|,|i|i||..||..i. Page 1 of 1 yDETACH HERE ^ND RETURN TOP PORTION WITH YOUR PAYMENT miv Toll Free Number (866) 451-1216 Medical Revenue Service is a collection agency. The account(s) indicated below has been placed with our office for collection. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor. Please make your check or money order Payable to Medical Revenue Services. In order to assure proper credit to your account, include the reference number with your payment. We also accept credit card and "check by telephone" payments for your convenience. If you have any questions, you may contact one of our account representatives at the toll-free telephone number listed on this letter. This is an attempt to collect a debt and any information obtained will be used for that purpose. This communication is from a debt collector. TOTAL AMOUNT DUE: $87.00 This collection agency is licensed by the Collection Service Board, State Department of Commerce and Insurance. (Tenn. Code. Ann Subsection (b) (2000).) Permit* 366. Our hours of operation are 8AM to 7PM Monday through Friday Eastern Standard Time. Nuestras horas laborales son de 8AM a 7PM de lunes a viernes. Account # Facility Name Service Date Balance Patient Name 4225 Lakeway Regional Hospital 12/19/2013 $87.00 Jones, Wilma PL1SCase 2:16-cv-00250-TRM-MCLC Document 1-1 Filed 07/26/16 Page 1 of 1 PageID #: 11Case 2:16-cv-0 250-TRM-MCLC Document 1 10 19 2 2 361 Exhibit “B” [Tennessee Secretary of State Division of Business Services government website page for “Medical Data Systems, Inc.”] Case 2:16-cv-00250-TRM-MCLC Document 11-2 Filed 10/19/16 Page 1 of 3 PageID #: 362 Tennessee Secretary ofState Tre Hargett Business Services Online > Find and Update a Business Record > Business Entity Detail Business EntityDetail Entity details cannot be edited.This detail reflects the current state of the filing in the system. Return to the Business Information Search. 000374670:For-profit Corporation -Foreign Printer Friendly Version Name: MEDICAL DATA SY STEMS,INC. Foreign Name: Status: Active Initial Filing Date: 07/28/1999 Formed in: FLORIDA Delayed Effective Date: Fiscal Year Close: December AR Due Date: 04/01/2017 Term of Duration: Perpetual Inactive Date: Principal Office: 2001 9TH AVE STE 312 VERO BEACH,FL 32960-6413 USA Mailing Address: 2001 9TH AVE STE 312 VERO BEACH,FL 32960-6413 USA AR Exempt: No Obligated Member Entity: No Shares ofStock: 0 Nam e Status Expires Medical Revenue Service Active 07/02/2018 File Annual Report (after 12/01/2016) Certificate of Existence Cease Business in Tennessee Available Entity Actions More Assumed Names History Registered Agent Division of Business Services 312 Rosa L.Parks Avenue,Snodgrass Tower,6th Floor Nashville,TN 37243 615-741-2286 8:00 a.m.until 4:30 p.m.(Central) Monday - Friday. Directions | State Holidays | Methods of Payment Business Filings and Information (615) 741-2286 | TNSOS.CORPINFO@ tn.gov Certified Copies and Certificate of Existence (615) 741-6488 | TNSOS.CERT@ tn.gov Motor Vehicle Temporary Liens (615) 741-0529 | TNSOS.MVTL@ tn.gov Business Services Charitable Civics Elections Fantasy Sports Publications Library & Archives Contact Us Page 1 of 2Business Entity Detail - Business Services Online 10/18/2016https://tnbear.tn.gov/Ecommerce/FilingDetail.aspx?CN=21623604207320517920613503... 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C U S T O M E R S U P P O R T Contact Us Library & Archives Visitor Information D E P A R T M E N T IN F O R M A T IO N About the Secretary of State's Office Secretary of State Bio Sign up for email updates D IV IS IO N S Administrative Hearings Business Services Charitable Solicitations and G aming Elections Human Resources and Organizational Development Library & Archives Division of Publications Records Management L IN K S Tennessee G eneral Assembly Bureau of Ethics and Campaign Finance Tennessee Code Unannotated State Comptroller State Treasurer National Association of Secretaries of State Tennessee Secretary of State Tre Hargett © 2016 Tennessee Secretary of State | W eb and Social Media Policies Page 2 of 2Business Entity Detail - Business Services Online 10/18/2016https://tnbear.tn.gov/Ecommerce/FilingDetail.aspx?CN=21623604207320517920613503... Case 2:16-cv-00250-TRM-MCLC Document 11-2 Filed 10/19/16 Page 3 of 3 PageID #: 364 Exhibit “C” [Florida Office of Financial Regulation government website page for “Medical Data Systems Inc.”] Case 2:16-cv-00250-TRM-MCLC Document 11-3 Filed 10/19/16 Page 1 of 2 PageID #: 365 License Search Results Detail License Name: MEDICAL DATA SYSTEMS INC DBA Name: MEDICAL REVENUE SERVICE License Type: Consumer Collection Agency Status: Approved Status Effective Date: 11/18/2015 Original Date of License: 6/24/1999 License Number: CCA0900156 License Expiration Date: 12/31/2016 License Main Address: Street: 2001 9TH AVE STE 312 ATTN STEVEN EVANS City: VERO BEACH State: FL Zip Code: 32960 License Mailing Address: Street: 2001 9TH AVE STE 312 ATTN STEVEN EVANS City: VERO BEACH State: FL Zip Code: 32960 Phone Number: Search for Final Orders New Search Return to Search Results Accessibility Contact Us (850) 487-9687 Site Map Home About OFR Apply for a License Verify a License File a Complaint News Research Resources Page 1 of 1Florida Office of Financial Regulation 10/18/2016https://real.flofr.com/ConsumerServices/SearchLicensingRecords/SearchDetail.aspx?licN... Case 2:16-cv-00250-TRM-MCLC Document 11-3 Filed 10/19/16 Page 2 of 2 PageID #: 366