United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M. Tafoya Magistrate Judge.
the court is a “Motion for More Definite
Statement” (Doc. No. 12 [“Mot. for Definite
Statement”], filed June 19, 2018 by Defendants Heather
Cannon, Randall Johannes, Machol and Johannes, LLC, and
Jacques Machol, III [the “Law Firm Defendants”]),
to which Plaintiff filed a Response (Doc. No. 21, filed June
26, 2018) and to which the Law Firm Defendants filed no
reply. Also before the court is Defendant Capital One
Bank's “Motion to Dismiss” (Doc. No. 23
[“Mot. to Dismiss”] filed July 3, 2018), to which
Plaintiff filed a Response (Doc. No. 26, filed July 11, 2018)
and to which Defendant Capital One Bank, (USA) NA
[hereinafter “Capital One”] filed a Reply (Doc.
No. 36, filed July 25, 2018). Plaintiff filed a sur-reply
without leave on August 2, 2018 (Doc. No. 38), which was
stricken from the record. (Doc. No. 47.)
OF THE CASE
following facts are taken from the Complaint and the
parties' submissions. Plaintiff Loredana Aday
(“Plaintiff”) filed suit against Capital One and
the Law Firm Defendants. (Doc. No. 1 [Complaint].) Plaintiff
alleges violations of the Fair Debt Collection Practices Act
(“FDCPA”) (15 U.S.C. § 1692), Colorado Fair
Debt Collection Practices Act (C.S.R.A. § 5-16-123), and
Fair Credit Reporting Act (“FCRA”) (15 U.S.C.
§ 1681). Although somewhat difficult to understand,
Plaintiff seems to allege that she obtained a credit card
from Capital One and that Capital One conveyed misleading
information to credit reporting agencies. (Complaint at
¶ 9.) According to Plaintiff, Capital One is a
“debt collector” pursuant to the federal and
state FDCPA and, as such, violated both statutes by a)
falsely representing the status of debt, b) communicating
false credit information, c) using false or deceptive means
to collect debt, d) failing to disclose that it was
attempting to collect debt, and e) collecting an amount that
was not expressly authorized by agreement. (Id. at
¶¶ 19, 23.) Plaintiff also alleges that Capital One
is a “furnisher of information” under the FCRA
that negligently and willfully violated the FCRA by failing
to take measures required by 15 U.S.C. § 1681s-2(a) and
15 U.S.C. § 1681s-2(b) regarding disputed information
furnished to a consumer reporting agency. (Id. at
to the Complaint are certain unexplained exhibits. A review
of the exhibits indicates that Capital One filed suit against
Plaintiff on February 7, 2018 to collect a balance of $4,
002.10 that Plaintiff owed in credit card debt. (Id.
at 1-1.) The exhibits further show that Plaintiff sent a
“Notice of Dispute” to Machol & Johannes,
LLC, in which she disputed the credit card debt.
(Id. at 1-1.) The Complaint does not explain the
purpose of these exhibits. Moreover, the Complaint does not
explain what factual allegations or claims Plaintiff intends
to bring against any defendant other than Capital One.
Plaintiff merely attaches correspondence indicating that
Defendants Heather Cannon, Randall Johannes, Machol and
Johannes, LLC, and Jacques Machol, III work for Machol &
Johannes, LLC, which appears to be a law firm assisting
Capital One in collecting credit card debt owed by Plaintiff.
(Id. at Exs. 1-4).
Firm defendants move for a more definite statement because
the Complaint is too unclear to allow Defendants to formulate
a proper responsive pleading. (Motion for Definite Statement
at 3-4.) Capital One moves for dismissal because Capital One
is not a “debt collector” subject to the federal
or state FDCPA. (Mot. to Dismiss at 5-6.) Capital One also
argues that Plaintiff's FCRA claims fail because 15
U.S.C. § 1681s-2(a) does not include a private right of
action and because Plaintiff fails to allege that Capital One
inaccurately reported information so as to state a claim
under 15 U.S.C. § 1681s-2(b).
More Definite Statement
plaintiff is not an attorney and is not represented by an
attorney, her pleadings have been liberally construed and
held to a less stringent standard than formal pleadings
drafted by lawyers. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir.1991) (citing
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Firm Defendants seek an order requiring Plaintiff to provide
a more definite statement. A party may move for a more
definite statement of any pleading that is “so vague or
ambiguous that the party cannot reasonably prepare a
response.” Fed.R.Civ.P. 12(e). The Rule further
provides that “[t]he motion ... must point out the
defects complained of and the details desired.”
Id. Such motions should be granted only when a party
is unable to determine the issues requiring a response.
Resolution Tr. Corp. v. Thomas, 837 F.Supp. 354, 355
(D. Kan. 1993). However, a party may move for a more definite
statement if it “cannot formulate a responsive pleading
because the factual allegations are too sparse.”
Perington Wholesale, Inc. v. Burger King Corp., 631
F.2d 1369, 1371 (10th Cir.1979); see also New
Home Appliance Ctr., Inc. v. Thompson, 250 F.2d 881, 883
(10th Cir.1957) (“[i]f a party needs more facts, it has
a right to call for them under Rule 12(e) ...”).
“A motion for more definite statement should not be
granted merely because the pleading lacks detail; rather, the
standard to be applied is whether the claims alleged are
sufficiently specific to enable a responsive pleading in the
form of a denial or admission.” Advantage
Homebuilding, LLC v. Assurance Co. of America, No. Civ.
A. 03-2426- KHV, 2004 WL 433914, at * 1 (D. Kan. March 5,
2004). The decision whether to grant or deny such a motion
lies within the sound discretion of the court. Graham v.
Prudential Home Mortg. Co., Inc., 186 F.R.D. 651, 653
(D. Kan. 1999).
12(e) must be read in conjunction with Rule 8, which
establishes the general rules or guidelines for pleadings. 5A
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE §
1377 at 618 (1990). The twin purposes of a complaint are to
give the opposing parties fair notice of the bases for the
claims against them so that they may respond and to allow the
court to conclude that the allegations, if proven, show that
Plaintiff is entitled to relief. See Monument
Builders of Greater Kansas City, Inc. v. Am. Cemetery
Ass'n of Kansas, 891 F.2d 1473, 1480 (10th Cir.1989)
(quoting Perington, 631 F.2d at 1371). Rule 8(a)
provides that a complaint “must contain (1) a short and
plain statement of the grounds for the court's
jurisdiction ...; (2) a short and plain statement of the
claim showing that the pleader is entitled to relief; and (3)
a demand for the relief sought....” The philosophy of
Rule 8(a) is reinforced by Rule 8(d)(1), which provides that
“[e]ach allegation must be simple, concise, and
direct.” Taken together, Rules 8(a) and (d)(1)
underscore the emphasis placed on clarity and brevity by the
federal pleading rules. Vague or unintelligible pleadings
violate the requirements of Rule 8.
claims are so vaguely stated that the Law Firm Defendants
could not possibly prepare a meaningful response. Plaintiff
proffers four individual claims, but states each claim as to
Defendant Capital One. Plaintiff does not allege one claim or
factual allegation against the Law Firm Defendants. Without
further detail from Plaintiff specifying which claims are
alleged against which defendants, the Law Firm Defendants are
left to guesswork and are prevented from raising all defenses
to which they may be entitled, including any defense that
could be dispositive of this action. See
Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.
2010) (observing that a more definite statement is “the
preferable procedure” when additional information could
support a dispositive defense motion) (citing5C
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1376 at 336 (3d ed.2004)). Particularly
considering Plaintiff's pro se status, the court
believes that having Plaintiff file a more precise statement
of allegations is fair and proper. Accordingly, the court
recommends granting the Law Firm Defendant's Motion for
Definite Statement as to all claims that are not dismissed.
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “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 ...