Lutman et al v. Harvard Collection Services, Inc.

MOTION to Dismiss and-or Strike Portions of Plaintiffs' Complaint and Incorporated Memorandum of Law

M.D. Fla.July 2, 2015

6858221v.1 UNITED STATES DISTRICT COURT for the MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION MICHAEL N. LUTMAN and CASE NO.: 2:15-cv-257-FtM-38cm DEBORAH C. LUTMAN, Plaintiffs, v. HARVARD COLLECTION SERVICES, INC., Defendant _____________________________________/ HARVARD COLLECTION SERVICES, INC. MOTION TO DISMISS AND/OR STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT AND INCORPORATED MEMORANDUM OF LAW Defendant, HARVARD COLLECTION SERVICES, INC. (hereinafter “HCS”), by and through its undersigned counsel and pursuant to Rule 12(b)(6), and Rule 12(h) Fed.R.Civ.P. and Local Rule 3.01, hereby files the following Motion to Dismiss and/or Strike Portions of Plaintiffs' Complaint and Incorporated Memorandum of Law, and as grounds therefore states as follows: I. Introduction and Factual Background 1. Plaintiffs' Complaint was filed on or about April 24, 2015. 2. In their eight count Complaint, Plaintiffs have asserted the following causes of action against HCS: Case 2:15-cv-00257-SPC-CM Document 10 Filed 07/02/15 Page 1 of 7 PageID 42 Lutman v. Harvard Collection Services, Inc. CASE NO.: 2:15-cv-257-FtM-38cm 2 6858221v.1 Count I -- Violation of the Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. Sec. 227(b)(1)(A); Count II – Violation of the Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. Sec. 227(b)(1)(A)(iii); Count III - Violation of the Fair Debt Collection Practices Act (“FDCPA”) 15 U.S.C. 1692(d)(5); Count IV - Violation of the Fair Debt Collection Practices Act (“FDCPA”) 15 U.S.C. 1692(d)(6); Count V - Violation of the Fair Debt Collection Practices Act (“FDCPA”) 15 U.S.C. 1692(e)(10); Count VI – Violation of the Fair Debt Collection Practices Act (“FDCPA”) 15 USC 1692(e)(11) Count VII – Violation of the Florida Consumer Collection Practices Act (“FCCPA”), FS 559 Count VIII – Violation of the Florida Consumer Collection Practices Act (“FCCPA”), FS 559 Count IX – Request for Injunctive Relief Per F.S. 559.77(2) 3. Plaintiffs allegations center around their receipt of numerous phone calls placed by defendant using an automatic dialing system to their cellular phone(s) between Case 2:15-cv-00257-SPC-CM Document 10 Filed 07/02/15 Page 2 of 7 PageID 43 Lutman v. Harvard Collection Services, Inc. CASE NO.: 2:15-cv-257-FtM-38cm 3 6858221v.1 the dates of October 31, 2014 and March 2, 2015. Plaintiffs assert the phone calls were not consented to and were made with the intent to annoy, abuse, or harass the plaintiffs. See¶ 11-76, 80, 89. 4. HCS has filed an Answer to Count I of Plaintiff’s Complaint, which is filed under separate cover. II. Motion to Dismiss 5. Count II of Plaintiffs' Complaint against HCS for Violation of the Telephone Consumer Protection Act (“TCPA”) 47 U.S.C. §227(b)(1)(A)(iii) should be stricken since the claim is redundant of and subsumed within allegations contained in Count I. 6. Counts III-VI of Plaintiff’s Complaint for alleged violations of the FDCPA should be dismissed for failing to allege any factual basis that would bring said claims within the statute’s purview. 7. Counts VII-VIII of Plaintiff’s Complaint for alleged violations of the Florida Consumer Collection Practices Act (“FCCPA”), F.S. §559 et seq. should be also dismissed for failing to allege any factual basis that would bring said claims within the statutes purview. A. Legal Standard Case 2:15-cv-00257-SPC-CM Document 10 Filed 07/02/15 Page 3 of 7 PageID 44 Lutman v. Harvard Collection Services, Inc. CASE NO.: 2:15-cv-257-FtM-38cm 4 6858221v.1 8. Plaintiffs' Complaint should be dismissed, as to the allegations against HCS, for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P . In deciding this motion to dismiss, this Court must accept as true all the factual allegations in the complaint, drawing all inferences derived from those facts in the light most favorable to the Plaintiffs. See Brown v. Crawford County, 960 F.2d 1002, 1010 (11th Cir. 1992); Danley v. Allen, 540 F.3d 1298, 1304 (11th Cir. 2008) (holding that, when evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must “take the facts alleged in the complaint as true and construe them in the light most favorable to” the plaintiff). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint... has alleged -- but it has not ‘show[n]’ -- ‘that the pleader is entitled to relief.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). 9. Dismissal is appropriate because the Complaint does not “identify each of the material elements necessary to sustain a recovery under some viable legal theory.” See Roe v. Aware Woman Or. for Choice, Inc., 253 F.3d 678, 684 (11th Cir. 2001), reh'g denied, 273 F.3d 395 (11th Cir.2001), cert. denied, 534 U.S. 1129, 122 S.Ct. 1067, 151 L.Ed.2d 970 (2002). 10. Finally, Federal Rule 12(f) permits the District Court to strike any materials it deems to be redundant, immaterial or scandalous. As the allegations in Count II are nearly identical to and subsumed in Count I, it would be proper to strike the count. Case 2:15-cv-00257-SPC-CM Document 10 Filed 07/02/15 Page 4 of 7 PageID 45 Lutman v. Harvard Collection Services, Inc. CASE NO.: 2:15-cv-257-FtM-38cm 5 6858221v.1 B. Counts II through VI of Plaintiff’s Complaint Fail to State a Cause of Action Against WWR, Because the Are No Factual Allegations That The FDCPA Would Apply. 11. The provisions of the FDCPA which Plaintiffs alleges were violated by HCS are only applicable to “consumer debts”. See Antoine v. State Farm Mut. Auto. Ins. Co., 662 F.Supp.2d 1318 (M.D.Fla. 2009); see also Fuller v. Becker & Poliakoff, P.A., 192 F.Supp.2d 1361, 1367 (M.D.Fla. 2002) (recognizing that the FDCPA and FCCPA share the same definition of debt). The statutory language of FDCPA limits its application to debts arising from consumer transactions involving obligations associated with “personal, family, or household services.” 15 U.S.C. § 1692a; § 559.55(1), Fla. Stat; see also Hawthorne v. Mac Adjustment, Inc., 40 F.3d 1367, 1371-2 (11th Cir. 1998) (holding that the statutory language of the FDCPA is limited to consumer transactions) (citing Shorts v. Palmer,155 F.R.D. 172, 174 (S.D.Ohio 1994): Battye v. Child Support Servs., Inc., 873 F.Supp. 103, 105 (N.D.Ill.1994)). 12. There are no factual allegations that this matter involves a consumer transaction or a consumer debt. There are no factual allegations that the cellular phone calls at issue were made in connection with the collection of a consumer debt See 15 U.S.C. §1692(d) as those terms are defined under 15 U.S.C. §1692(a). There are further no factual allegations that a debt collector utilized false, deceptive, or misleading representation or means in connection with the collection of a consumer debt. 15 U.S.C. §1692(e). Simply put, there are no factual allegations that would trigger the application Case 2:15-cv-00257-SPC-CM Document 10 Filed 07/02/15 Page 5 of 7 PageID 46 Lutman v. Harvard Collection Services, Inc. CASE NO.: 2:15-cv-257-FtM-38cm 6 6858221v.1 of the FDCPA. See also Beeders v. Gulf Coast Collection Bureau, 796 F. Supp.2d 1335 (2011). C. Counts VII through VIII of Plaintiff’s Complaint Fail to State a Cause of Action Against HCS, Because the Are No Factual Allegations That The FCCPA Would Apply. 13. Plaintiffs allege in these counts that HCS improperly communicated with plaintiffs with such frequency as could reasonably be expected to harass them and by threatening to enforce a debt knowing that the debt was not legitimate or asserting the existence of some other legal right when such person knows that the right does not exist. See¶ 105 and 110. 14. There are no factual allegations that the cellular phones calls alleged were in reference to collection of a “consumer debt” for which the plaintiffs were the “debtor.” Further, there are no factual allegations regarding the nature of the cellular telephone calls, what statements were made by the defendants on each of the occasions alleged, and to whom the calls were made. See F.S.§559.55 and F.S. §559.72. 15. Simply put, the complaint fails to allege any facts necessary to bring the claim within the purview of the FCCPA. D. Counts IX of Plaintiff’s Complaint Fail to State a Cause of Action Against HCS, Because the Are No Factual Allegations That The FCCPA Would Apply. Case 2:15-cv-00257-SPC-CM Document 10 Filed 07/02/15 Page 6 of 7 PageID 47 Lutman v. Harvard Collection Services, Inc. CASE NO.: 2:15-cv-257-FtM-38cm 7 6858221v.1 16. As indicated above, there are no factual allegations that FCCPA would apply. As such, plaintiff’s request for injunctive relief based upon the statute is without merit. WHEREFORE, the undersigned respectfully request that it grant the defendant’s Motion to Dismiss and Strike as set forth herein. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 2 nd day of July 2015, I electronically filed the foregoing with the Clerk of the Court via the CM/ECF system which will send a Notice of Electronic Filing to the following: Michael N. Lutman, and Deborah C. Lutman, Pro Se Plaintiffs, 8450 Truman Street, Englewood, FL 34224 at Leathrneck3112@gmail.com; and debbielutman@yahoo.com. /s/ Jodi G. Barrett Jodi G. Barrett, Esquire Florida Bar No. 0901156 Wilson Elser Moskowitz Edelman & Dicker, LLP 222 Lakeview Avenue, Suite 800 West Palm Beach, FL 33401 (561) 515-4000 Office (561) 515-4001 Fax email designations: Jodi.Barrett@wilsonelser.com Angela.Burno@wilsonelser.com Case 2:15-cv-00257-SPC-CM Document 10 Filed 07/02/15 Page 7 of 7 PageID 48