United States District Court, D. Colorado
ERIK T. ROBINSON, Plaintiff,
v.
ACG PROCESSING, and ROBERT BASS, Defendants.
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
...