United States District Court, D. Colorado
KRISTEN L. MIX, MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion to
Dismiss Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6)
[#13] (the “Motion”). Plaintiff
filed a Response [#20] in opposition to the Motion, and
Defendant filed a Reply [#23]. The Court has reviewed the
Motion, the entire docket, and the applicable law, and is
sufficiently advised in the premises. Based on the following,
IT IS HEREBY ORDERED that the Motion [#13] is GRANTED, and
all claims are DISMISSED with prejudice.
is a registered sex offender who alleges that his home
address is listed in Colorado's Sex Offender Registry and
readily available through internet searches. Nevertheless, he
alleges that in 2012, a debt collector attempted to serve a
lawsuit on him at an old address and eventually obtained a
default judgment against him and garnished some of his wages.
When Plaintiff proved that he had not been lawfully served,
the debt collector did not immediately return the garnished
funds to him. Plaintiff asserts that because his address
“is a matter of public knowledge” which was
“easily discovered by just a simple internet search,
” the debt collector Defendant “knew or should
have known” that he did not live at the service
address. Am. Compl. [#10] ¶ 26. By serving him
at that address, Plaintiff asserts that Defendant engaged in
deceitful, unfair or unconscionable conduct. By failing to
immediately return the garnished funds, Plaintiff alleges
that Defendant used deceptive means to collect a debt and
threatened to take action that could not legally be taken.
Plaintiff asserts that these allegations state claims for
violation of the Fair Debt Collection Practices Act
(“FDCPA”). I disagree, as explained in more
Amended Complaint, Plaintiff asserts multiple violations of
the FDCPA, 15 U.S.C. §§ 1692e, 1692f, based on
allegedly ineffective service of a complaint against him in a
previous state court lawsuit and based on Defendant's
failure to immediately offer to return the garnishment funds
when the default judgment in that case was vacated. See
Am. Compl. [#10] ¶¶ 49, 55, 66, 72, 79, 82. In
the Motion [#13], Defendant seeks to dismiss all claims in
Plaintiff's Amended Complaint [#10] pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim under the
makes the following allegations in his first Amended
Complaint: On August 16, 2012, Defendant filed a lawsuit
against Plaintiff in the Douglas County Court of the State of
Colorado for an alleged obligation to pay a debt owed to a
third party on a Wells Fargo Bankcard account. Am.
Compl. [#10] ¶¶ 9, 11. Plaintiff asserts that
he was never served with Defendant's lawsuit because he
no longer resided at the service address when service
allegedly occurred on September, 30, 2012. Id.
¶¶ 12-14. Plaintiff has not lived at the service
address since 2006. Id. ¶ 15. Based on a
process server's affidavit of service, the Douglas County
Court entered default judgment against Plaintiff on October
24, 2012, and issued a writ of garnishment against Plaintiff
approximately three years later. Id. ¶¶
of the ineffective service, Plaintiff did not receive notice
of Defendant's lawsuit until January 15, 2016.
Id. ¶¶ 27, 32. Between February 2016 and
March 2016, Defendant collected a total of $713.86 from
Plaintiff through wage garnishment. Id. ¶ 38.
On March 28, 2016, the Douglas County Court set aside the
default judgment after Plaintiff provided sufficient proof
that he was not residing at the residence at which he had
been purportedly served. Id. ¶ 35. Defendant
did not offer to return the funds until Plaintiff's
counsel threatened litigation approximately three months
later. Id. ¶¶ 38, 41, 43.
alleges that Defendant knew or should have known that
Plaintiff is included in Colorado's Sex Offender
Registry, which contains his current address and physical
description. Id. ¶ 19. Plaintiff also alleges
that Defendant could have found his current address by
performing an internet search; therefore, Defendant knew or
should have known that Plaintiff had previously but no longer
resided at the service address. Id. ¶¶
20-23, 26. Plaintiff alleges that his first communication
with Defendant occurred on or about June 20, 2016, at which
time Defendant acknowledged that Plaintiff was included in
Colorado's Sex Offender Registry. Id.
on the alleged ineffective service of the complaint in the
prior lawsuit and Defendant's failure to immediately
offer to return the garnishment funds, Plaintiff claims that
Defendant violated the FDCPA. See Id. ¶¶
35, 39. Specifically, by failing to properly serve Plaintiff
when Defendant knew or should have known Plaintiff's
current address and by not immediately offering to return the
garnishment funds after the Douglas County Court set aside
the default judgment, Plaintiff avers that Defendant
violated: (1) 15 U.S.C. § 1692e(5) “by taking or
threatening to take an action that cannot be legally taken,
” id. ¶¶ 49, 55; (2) 15 U.S.C.
§ 1692e(10) “by using false, deceptive, or
misleading representation or means, ” id.
¶¶ 66, 72; and (3) 15 U.S.C. § 1692f “by
using unfair or unconscionable means, ” id.
¶¶ 75, 82.
Motion [#13], Defendant does not explicitly dispute that
Plaintiff is a consumer, that Defendant is a debt collector,
that Defendant's legal action was taken in connection
with collection of a debt in default to a third party, or
that the debt was incurred primarily for personal, family, or
household purposes as defined under the FDCPA. See Am.
Compl. [#10] ¶¶ 5-7, 9, 11.
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “The
court's function on a Rule 12(b)(6) motion 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.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact ‘to state a claim to relief that is
plausible on its face.'” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must
plead sufficient facts, taken as true, to provide
‘plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations.”
(quoting Twombly, 550 U.S. at 570)).
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n]
that the pleader is entitled to relief, ” as required
by Rule 8(a). Iqbal, 552 U.S. at 679 (second
brackets added; citation and internal quotation marks
Plaintiff's claims against Defendant in this case arise
pursuant to the FDCPA. See Am. Compl. [#10]
¶¶ 49, 55, 66, 72, 79, 82. Defendant argues that
Plaintiff's claims should be dismissed under Fed.R.Civ.P.
12(b)(6) for failure to state a claim on which relief may be
granted. Motion [#13] at 2. Specifically, Defendant
asserts, as a matter of law, that serving Plaintiff at an
address at which he allegedly no longer resided, and not
immediately returning garnishment funds after the judgment
underlying the court-issued garnishment was vacated, absent
any request, demand or order to return funds, cannot
establish a violation of the FDCPA. Id. at 1-2.
FDCPA is designed to “eliminate abusive debt collection
practices by debt collectors . . . and to promote consistent
State action to protect consumers against debt collection
abuses.” 15 U.S.C. § 1692. Specifically, Plaintiff
alleges that Defendant's debt collection practices
violated 15 U.S.C. §§ 1692e(5), 1692e(10), and
1692f. Am. Compl. [#10] ¶¶ 49, 55, 66, 72,
79, 82. Accepting the well-pled allegations of
Plaintiff's Amended Complaint [#10] as true, and for the
reasons stated below, the Court concludes that dismissal of
all claims against Defendant for violations of 15 U.S.C.
§§ 1692e(5), 1692e(10), and 1692f is appropriate.
See Mobley, 40 F.3d at 340 (holding that the purpose
of a motion to dismiss pursuant to Rule 12(b)(6) is to test
“the sufficiency of the allegations within the four
corners of the complaint after taking those allegations as