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Aday v. Capital One Bank, (USA) NA

United States District Court, D. Colorado

January 3, 2019



          Kathleen M. Tafoya Magistrate Judge.

         Before 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.)


         The 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 ¶¶ 26-31.)

         Attached 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).

         The Law 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).


         A. More Definite Statement

         As the 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)).

         The Law 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).

         Rule 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.

         Plaintiff's 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.[1] 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.

         B. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal 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 ...

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