United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter is before the Court on Defendant's Motion to
Dismiss [Docket No. 6]. The motion is fully briefed and ripe
for disposition. Jurisdiction over this case is based on
federal question jurisdiction pursuant to 28 U.S.C. §
brings a claim under the Fair Debt Collection Practices Act,
15 U.S.C. § 1692, et seq.
(“FDCPA”), alleging that defendant used unlawful
practices in attempting to collect on a debt. In her
complaint, plaintiff alleges that she received a letter from
defendant seeking to collect an alleged debt. Docket No. 1 at
2, ¶ 9. Defendant sent the letter in a window envelope
that exposed the letter's address block. Id.,
¶ 10. Above plaintiff's name and address in the
address block, a barcode appeared. Id., ¶
Below the barcode and above plaintiff's name, a number
appeared, “identified in the Letter as the account
number associated with the Alleged Debt.” Id.,
¶ 11. The body of the letter stated
“**** NOTICE OF EMPLOYMENT
VERIFICATION ****” Id., ¶ 12 (emphasis
original). The letter then warned, “[f]ailure to make
PAYMENT will force this office to notify your creditor that
you are working and have refused to pay.” Id.,
¶ 13. The complaint alleges this warning is false.
April 4, 2016, plaintiff filed her complaint. Docket No. 1.
It contains a single claim for relief for violation of the
FDCPA under 15 U.S.C. §§ 1692d, 1692e, 1692e(5),
1692e(10), 1692f, and 1692f(8). Id. at 3, ¶ 18.
8, 2016, defendant filed its motion to dismiss. Docket No. 6.
Defendant argues that the alleged actions fail to state a
claim for relief under the FDCPA and moves the Court to
dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).
Id. at 3.
STANDARD OF REVIEW
brings its motion pursuant to Federal Rule of Civil Procedure
12(b)(6). Under Rule 12(b)(6), the “court's
function . . . is not to weigh potential evidence that the
parties might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (citations omitted). In doing so, the Court
“must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most
favorable to the plaintiff.” Alvarado v. KOB-TV,
LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation
marks and citation omitted). “In addition to the
complaint, the district court may consider documents referred
to in the complaint if the documents are central to the
plaintiff's claim and the parties do not dispute the
documents' authenticity.” Jacobsen v. Deseret
Book Co., 287 F.3d 936, 941 (10th Cir. 2002). A court,
however, need not accept conclusory allegations. Moffett
v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232
(10th Cir. 2002). Generally, “[s]pecific facts are not
necessary; the statement need only ‘give the defendant
fair notice of what the claim is and the grounds upon which
it rests.'” Erickson v. Pardus, 551 U.S.
89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)) (omission marks,
internal quotation marks, and citation omitted). The
“plausibility” standard requires that relief must
plausibly follow from the facts alleged, not that the facts
themselves be plausible. Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008). However, “where 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 shown - that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted). Thus, even though modern rules of pleading are
somewhat forgiving, “a complaint still must contain
either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some
viable legal theory.” Bryson, 534 F.3d at 1286
(quotation marks and citation omitted).
Violation of 15 U.S.C. § 1692d
1692d provides that a “debt collector may not engage in
any conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the
collection of a debt.” In analyzing FDCPA claims, debt
collectors' communications are generally viewed from the
perspective of how the least sophisticated consumer would
interpret the notice received from the debt collector.
Irvine v. I.C. Sys., Inc., 176 F.Supp.3d 1054, 1060
(D. Colo.), reconsideration denied, 198 F.Supp.3d
1232 (D. Colo. 2016) (citing Clomon v. Jackson, 988
F.2d 1314, 1318 (2d Cir. 1993)). “The hypothetical
consumer, however, ‘can be presumed to possess a
rudimentary amount of information about the world and a
willingness to read a collection notice with some
care.'” Ferree v. Marianos, 1997 WL
687693, at *1 (10th Cir. Nov. 3, 1997) (unpublished) (quoting
Clomon, 988 F.2d at 1319).
argues that the contents of the letter could not be viewed by
any reasonable consumer as harassing or oppressive and cites
various cases it argues where conduct that was
“considerably worse” has been found to not
violate Section 1692d. Docket No. 6 at 5 (citing Wilson
v. Merchants & Med. Credit Corp, Inc., 2010 WL
3488617 (E.D. Mich. Sept. 2, 2010); Unterreiner v.
Stoneleigh Recovery Assoc., LLC, 2010 WL 2523257 (N.D.
Ill. June 17, 2010); Smith v. Accounts Research,
Inc., 2012 WL 289835 (E.D. Tenn. Jan. 31, 2012);
Pearce v. Rapid Check Collection, 738 F.Supp. 334
argues that the statement that the creditor will be contacted
about her employment status is a “threat directed at
Ms. Garcia in order to harass and oppress even if the threat
is not overt.” Docket No. 7 at 5.
Court finds that the alleged conduct does not, as a matter of
law, rise to the level of harassment, oppression, or abuse in
violation of Section 1692d. The alleged conduct is unlike the
listed examples of conduct that are per se violations of the
section, i.e., “use of violence or other criminal
means, ” “use of obscene or profane language,
” publication of debtor status, or harassing phone
calls. 15 U.S.C. § 1692d(1)-(6). While some recipients
might interpret the words “NOTICE OF EMPLOYMENT
VERIFICATION” as a threat that their employers would be
contacted, the letter goes on to state that the
recipient's “creditor” will be notified.
Docket No. 1 at 2, ¶¶ 12-13 (emphasis omitted).
Because a least sophisticated consumer would read the letter
in full and with care, Campuzano-Burgos v. Midland Credit
Mgmt., Inc., 550 F.3d 294, 299 (3d Cir. 2008), any
misreading of the “NOTICE” would be clarified.
The Court will grant defendant's motion to dismiss with
respect to plaintiff's claim under Section 1692d.
Violation of 15 ...