Robinson v. ACG Processing

          ORDER RE: MOTION TO DISMISS

          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court on Defendants' Fed. R. Civ. Pro. 12(b)(6) Motion to Dismiss (#30) and the supporting and opposition briefing thereto (#31, #38).

         I. Statement of Jurisdiction

          The instant lawsuit asserts seven claims arising under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the “FDCPA”), and one claim arising under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (the “TCPA”). Thus the Court exercises jurisdiction under 28 U.S.C. § 1331.

         II. Relevant Alleged Facts

         The Court offers a summary of the relevant allegations set forth in the First Amended Complaint^[1] (#24). Further elaboration is made as necessary as part of the Court's analysis.

         The First Amended Complaint alleges that from April 2016 through June 2017, Mr. Robinson received multiple phone calls from debt collectors seeking payment of a 2008 payday loan, a debt that he disputes. (Id. at ¶¶ 6, 8, 14-17.) These calls fit a “general pattern” in which Mr. Robinson was told that a process server and/or the police were en route to his home or workplace, and he was threatened with being sued or arrested if he did not pay the debt. (Id. at ¶ 6.) Whenever Mr. Robinson received a call from debt collectors, he demanded validation of the debt as required under the FDCPA, but he has never received that verification. (Id.) In April 2016, the callers self-identified as the “Aaron Cooper Group” or “ACG Services, ” but beginning in August 2016, different names were used. (Id. at ¶¶ 9, 10.)

         Initially, Mr. Robinson sued D2 Management, but then settled such claims. As part of the settlement, D2 Management provided unspecified “materials” or “records” to Mr. Robinson, that “indicate that the prior debt collector is a firm called ACG Processing, ” which is owned by Robert Blass. (Id. at¶20) Mr. Robinson then amended his Complaint to assert claims against ACG Processing and Robert Blass.

         Defendants ACG Processing and Robert Blass move to dismiss the First Amended Complaint on a variety of grounds - some raised in the Motion to Dismiss, and others raised in the Reply. They contend that: 1) the First Amended Complaint does not contain any allegations that ACG Processing or Mr. Bass specifically engaged in any conduct that is a violation of the FDCPA; 2) the First Amended Complaint does not allege that Mr. Robinson submitted written notice of a disputed debt, which is a requirement to triggering any FDCPA validation obligations; 3) at least some of the FDCPA claims in the First Amended Complaint are barred by the one-year FDCPA statute of limitation; 4) the First Amended Complaint fails to allege what sort of computer or automated “robo-dialing” device was used to call Mr. Robinson with adequate specificity to state a TCPA claim; and 5) the First Amended Complaint does not sufficiently allege that Mr. Robinson received the calls in question on a cellular or wireless phone, as required under the TCPA.

         III. Analysis A. Fed. R. Civ. Pro. 12(b)(6) Legal Standard

          In considering a motion to dismiss pursuant to Rule 12, the Court is limited to the factual allegations of the pleadings - here, the First Amended Complaint. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001). The Court accepts all well-pleaded allegations as true and views such allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)).

         A claim is subject to dismissal unless it is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first discards those averments that are mere legal conclusions or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678-79. Then the Court takes the remaining, well-pleaded factual contentions, and treating them as true, determines whether such facts support a cognizable claim that is “plausible” as compared to merely being “conceivable” or “possible.” What is required to reach the level of “plausibility” varies from context to context, but generally, allegations that are “so general that they encompass a wide swath of conduct, much of it innocent, ” are not sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         B. Conduct by ACG Processing and Mr. Bass that violates the FDCPA

          To state a claim for violation of the FDCPA, Mr. Robinson must allege facts from which the court can infer that the elements of a claim can be shown. To prove a violation of the FDCPA, a plaintiff must establish that a debt collector violated some provision of the applicable statute. 15 U.S.C. § 1692 et seq. Generally, this requires some factual allegation from which the Court can infer that: 1) the plaintiff is a consumer; 2) the defendant is a debt collector; and 3) the defendant engaged in conduct prohibited by FDCPA. The Defendants move to dismiss Claims 1 through 7 brought under the FDCPA for failure to allege facts identifying prohibited conduct. 1. Conduct by ACG Processing ACG Processing generally argues that the First Amended Complaint fails to specifically identify it by name. ACG Processing is technically correct, but that does not prevent the statement of a sufficient claim against it.

         Paragraph 9 of the First Amended Complaint alleges that Mr. Robinson received calls from someone purporting to be from “ACG Services” and/or “Aaron Cooper Group” in April 2016. These references are slightly different from the name, ACG Processing. However, Paragraph 21 alleges that documents obtained from D2 Management “indicate that the prior debt collector is a firm called ACG Processing….” Reading the two allegations together, and construing them most favorably to Mr. Robinson, it is fair to say that he contends that the debt collection calls of which he complains all were made by ACG Processing. Although ACG Processing may dispute its involvement with these calls, this is sufficient to identify ACG Processing for purposes of the FDCPA claims.

         2. Conduct by Mr. Bass

         With regard to claims against Mr. Bass, the conclusion is different. The only allegation in the First Amended Complaint involving Mr. Bass is a single sentence in which the pleading states that he “apparently” owns an entity or entities identified as “ACG Processing, ” “Aaron Cooper Group, ” and/or “ACG service.” (#24, at ¶ 21.) There is no allegation that Mr. Bass actually did anything apart from that alleged ownership.

         That is not sufficient to state an FDCPA claim against Mr. Bass under any of the theories articulated by Mr. Robinson. The FDCPA governs the conduct of a “debt collector.” It defines such a debt collector to be “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another” or “any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.” 15 U.S.C. § 1692a(6).

         The sole allegation concerning Mr. Bass - that he owns ACG Processing or a similar-named entity - does not meet the definition of a debt collector. Thus, there is no claim stated against Mr. Bass under the FDCPA.

         C. The FDCPA Statute of Limitation

         The First Amended Complaint covers telephone calls made over an extended period of time - April 2016 through June 2017. This action was filed on November 14, 2017. ACG Processing contends that the FDCPA claims are time-barred by the ...