Zimmer v. Complete Payment Recovery Services, Inc.

Motion to Dismiss for Failure to State a Claim

W.D. Tex.November 30, 2016

Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ROBERT ZIMMER, § Plaintiff § § V. § § CIVIL ACTION NO. 1:16-CV-01247-LY COMPLETE PAYMENT RECOVERY § SERVICES, INC. § Defendant § MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) COMES NOW Defendant Complete Payment Recovery Services, Inc. (“Defendant”) and, pursuant to FED. R. CIV. P. 12(b)(6), hereby files this Motion to Dismiss Plaintiff Robert Zimmer’s complaint for failure to state a claim upon which relief may be granted, and would respectfully show the Court as follows: I. INTRODUCTION AND BACKGROUND 1. Plaintiff Robert Zimmer (“Plaintiff”) initially brought suit against Defendant in the Justice Court, Precinct 1, of Travis County, Texas, said action being designated as Cause No. J1-CV-16-002308 (“State Court Action”). Plaintiff’s complaint in the State Court Action sets forth his claims in one paragraph: [Defendant] is a third-party debt collector; [Plaintiff] is a consumer. On September 22, 2016, [Defendant] called [Plaintiff]'s cell phone trying to collect a debt that [Plaintiff] does not owe. [Defendant] left a voicemail that did not meaningfully identify the individual placing the call, thus violating the TX Debt Collection Act § 392.302(2). [Plaintiff]'s employees heard the voicemail, as it was not directed toward [Plaintiff] specifically, but rather simply left a phone number to call and did not state the caller was seeking locating information thus violating the FDCPA § 1692c(b) and § 1692b(1). [Defendant] also misrepresented the amount & status of the alleged debt, violating FDCPA § 1692e(2)(A). Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 1 of 8 Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 2 of 8 2. On November 23, 2016, Defendant removed the State Court Action to federal court on the basis of federal question jurisdiction, as Plaintiff asserts violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). See Dckt. No. 1. Plaintiff also asserts a violation of the Texas Debt Collection Act, Chapter 392 of the Finance Code (“TDCA”); this claim is before the Court under the Court’s supplemental jurisdiction powers. See id. 3. Pursuant to FED. R. CIV. P. 81(c)(2), Defendant files this Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6), as Plaintiff has failed to adequately plead claims upon which relief may be granted. II. ARGUMENT AND AUTHORITIES 4. FED. R. CIV. P. 8 requires that a pleading stating a claim for relief contain “a short and plain statement of the claim showing that the pleader is entitled to relief…” FED. R. CIV. P. 8(a)(2). The United States Supreme Court has interpreted Rule 8 as requiring more than mere “labels and conclusions” or “formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, to survive a motion to dismiss, the pleading “must contain sufficient factual matter…to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A claim is plausible when the complaint contains facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While not requiring the plaintiff to show it is probable the defendant caused the harm, liability must be more than “sheer possibility” to satisfy the plausibility requirement. Id. Importantly, Rule 8 does not permit a plaintiff to proceed with a lawsuit based on “nothing more than conclusions.” Id. at 1950. Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 2 of 8 Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 3 of 8 5. FED. R. CIV. P. 81(c) provides that the Federal Rules of Civil Procedure apply to removed actions. Similarly, federal courts have applied federal pleading standards in evaluating motions under FED. R. CIV. P. 12(b)(6). Novak v. JPMorgan Chase Bank, N.A., 518 Fed. Appx. 498, 501-02 (8th Cir. 2013) (holding that federal courts apply federal pleading standards of Rules 8 and 12(b)(6) to pleadings removed from state court); see also Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 139-40 (5th Cir. 2007) (applying federal pleading requirements, including Iqbal and Twombly, to a complaint filed in state court and removed to federal court). Therefore, Plaintiff’s complaint must satisfy FED. R. CIV. P. 8 and the federal case law so interpreting that rule. If it does not, then Defendant is entitled to dismissal. A. Plaintiff fails to plead any facts supporting his claim that the FDCPA applies to him 6. In order to prevail on a FDCPA claim, Plaintiff must prove the following: (1) he has been the object of collection activity arising from consumer “debt”; (2) Defendant is a “debt collector” defined by the FDCPA; and (3) Defendant has engaged in an act or omission prohibited by the FDCPA. See 15 U.S.C. §1692(a)-(f); see also Stewart v. Alonzo, Civil Action No. C-08-347, 2009 U.S. Dist. LEXIS 5362, at *5-6 (S.D. Tex. Jan. 26, 2009). In this case, Plaintiff has wholly failed to address the first two requirements and has failed to satisfy the requirements of FED. R. CIV. P. 8 as to the third requirement. As a result, FED. R. CIV. P. 12(b)(6) requires dismissal of Plaintiff’s FDCPA claims. 7. The FDCPA defines a “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). The FDCPA does not apply to debts incurred for business purposes. See id. Plaintiff’s complaint wholly fails to describe the debt at issue. In fact, Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 3 of 8 Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 4 of 8 Plaintiff does not even state that the alleged debt at issue falls under the definition provided by the FDCPA, let alone set forth facts to support that contention. As a result, Plaintiff’s complaint does not satisfy the requirements of FED. R. CIV. P. 8, and Plaintiff’s claims under the FDCPA must be dismissed. 8. Additionally, the FDCPA defines a “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collections of any debts, or who regularly collects or attempts to collect…debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The FDCPA also identifies a number of persons who do not qualify as a debt collector. Id. In this case, Plaintiff merely refers to Defendant as a “third-party debt collector,” without any factual support. Such a conclusory statement is not sufficient under FED. R. CIV. P. 8 and further requires that Plaintiff’s claims under the FDCPA be dismissed. B. Plaintiff fails to plead any facts supporting how Defendant violated 15 U.S.C. § 1692b(1) 9. Even if the Court chooses to look at each of Plaintiff’s claims under the FDCPA, still fail to satisfy FED. R. CIV. P. 8. Plaintiff claims that Defendant violated 15 U.S.C. § 1692b(1). That section provides that a debt collector “communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall…identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer…” Plaintiff’s complaint clearly states that sole event upon which his claims are premised is a September 22, 2016 voicemail left on Plaintiff’s cell phone. Plaintiff’s complaint wholly fails to set forth facts supporting how a call to Plaintiff’s cell phone constitutes communications with any other person, Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 4 of 8 Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 5 of 8 or how Plaintiff’s unnamed employees came to allegedly hear this voicemail. As a result, Plaintiff’s complaint fails to go beyond mere formulaic recitation of statutory language, in violation of FED. R. CIV. P. 8, and Plaintiff’s claim under 15 U.S.C. § 1692b(1) must be dismissed. C. Plaintiff fails to plead any facts supporting how Defendant violated 15 U.S.C. § 1692c(b) 10. Plaintiff also claims that Defendant violated 15 U.S.C. § 1692c(b), which prohibits a debt collector from communicating with anyone other than the consumer, the consumer’s attorney, a consumer reporting agency, the creditor, the creditor’s attorney, or the debt collector’s attorney. As described above, Plaintiff’s complaint states that the communication giving rise to his claims under the FDCPA was made to his cell phone; the complaint provides nothing more than a conclusory statement that Plaintiff’s employees somehow heard the voicemail at issue. For the same reasons Plaintiff’s complaint fails to state a claim for relief under 15 U.S.C. § 1692b(1), it also fails to state a claim for relief under 15 U.S.C. § 1692c(b). D. Plaintiff fails to plead any facts supporting how Defendant violated 15 U.S.C. § 1692e(2)(A) 11. Plaintiff claims a third alleged violation of the FDCPA, asserting that Defendant violated 15 U.S.C. § 1692e(2)(A). This section prohibits debt collectors from falsely representing “the character, amount, or legal status of any debt…” Plaintiff’s complaint contains absolutely no facts pertaining to the voicemail that serves as the basis for his claims, other than to claim it was left on September 22, 2016. At best, Plaintiff’s complaint contains a single, conclusory allegation that Defendant was attempting to collect on a debt that was not due. As a Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 5 of 8 Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 6 of 8 result, Plaintiff’s complaint wholly fails to satisfy FED. R. CIV. P. 8 and has failed to state a claim under 15 U.S.C. § 1692e(2)(A) upon which relief may be granted. E. Plaintiff fails to plead any facts supporting how Defendant violated TEX. FIN. CODE § 392.302(2) 12. Plaintiff claims that Defendant violated TEX. FIN. CODE § 392.302(2), which prohibits a debt collector from oppressing, harassing, or abusing a person by “placing telephone calls without disclosing the name of the individual making the call and with the intent to annoy, harass, or threaten a person at the called number…” The TDCA defines “debt collector” as a person who directly or indirectly engages in debt collection…” Id. § 392.001(6). “Debt collection” is the practice of collecting on consumer debts, which are in turn defined as obligations primarily for personal, family, or household purposes. Id. §§ 392.001(2), (5). 13. As discussed above in relation to the FDCPA, Plaintiff’s complaint does not set forth facts sufficient to allege that Defendant is a debt collector engaged in the collection of a consumer debt; Plaintiff’s complaint does not even identify the debt at issue. Therefore, Plaintiff has failed to plead a claim under the TDCA upon which relief may be granted. 14. Additionally, Plaintiff’s complaint provides nothing more than a conclusory statement that the Sept. 22, 2016 voicemail-which Plaintiff does not describe at all-did not “meaningfully identify” the caller. This conclusory and self-serving statement does not even encapsulate the requirements of § 392.302(2), let alone satisfy the pleading requirements of FED. R. CIV. P. 8. As a result, Plaintiff’s claim under the TDCA should also be dismissed for failing to state a claim upon which relief may be granted. Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 6 of 8 Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 7 of 8 III. CONCLUSION AND PRAYER Plaintiff’s complaint fails to adequately plead claims under the FDCPA or the TDCA. He has not pled facts sufficient to allege the FDCPA is even applicable to this situation or to Defendant, nor has he pled anything more than bald, conclusory statements to support his actual claims. In fact, Plaintiff’s complaint does not even describe the communication that supposedly gives rise to his state and federal claims. Plaintiff’s complaint, which consists of a single paragraph, is insufficient under FED. R. CIV. P. 8, and Defendant is entitled to dismissal pursuant to FED. R. CIV. P. 12(b)(6). WHEREFORE, Defendant prays that Plaintiff’s claims be dismissed with prejudice against refiling the same for failing to state a claim upon which relief may be granted, and for such other and further relief to which it may be justly entitled. Respectfully submitted, JACKSON WALKER L.L.P. By: Kimberly Gdula State Bar No. 24052209 kgdula@jw.com 100 Congress, Suite 1100 Austin, TX 78701 (512) 236-2000 (512) 236-2002 - Fax ATTORNEYS FOR DEFENDANT COMPLETE PAYMENT RECOVERY SERVICES, INC. Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 7 of 8 Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on this 30th day of November, 2016, a true and correct copy of the foregoing was served via certified mail, return receipt requested, and electronic delivery upon the following: Robert Zimmer 707 West 10th Street Austin, Texas 78701 zimmerlawTX@gmail.com Kimberly Gdula 17126072 Case 1:16-cv-01247-LY Document 4 Filed 11/30/16 Page 8 of 8