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Allison M. Linko, and Nicholas Linko v. American Education Services

April 26, 2012


The opinion of the court was delivered by: Hon. John E. Jones III



Before the court in the above-captioned action is the Motion to Dismiss of the collective Defendants. (Doc. 4). The Motion is deemed unopposed pursuant to Local Rule 7.5. For the reasons detailed herein, we will grant the Defendants' Motion in its entirety and dismiss the Plaintiff's Complaint with prejudice.


In accordance with the standard of review applicable to a motion to dismiss, the following facts are derived from the Plaintiffs' Complaint and viewed in a light most favorable to the Plaintiffs.

The Plaintiffs are Allison M. Linko and Nicholas Linko ("Plaintiffs"). (Doc. 1-1, ¶ 7). The Defendants are American Education Services ("AES") and the Pennsylvania Higher Education Assistance Agency ("PHEAA").*fn1 (Id. ¶ 8(a)-(b)). At some time prior to 2011, Plaintiffs entered into a "consumer credit transaction" which became the subject of the Defendants' complained-of debt collection activities. (Id. ¶ 18). When Plaintiffs' account went into collections, the account was referred to Defendants for purposes of collection. (Id. ¶ 19).

The Defendants contacted Plaintiffs at their residential phone number using prerecorded automated telephone messages for the purposes of debt collection. (Id. ¶ 20). Plaintiffs aver in their Complaint that they at no time expressly consented to receipt of artificial or prerecorded telephone messages from their creditor. (Id. ¶22). After several prerecorded messages, Plaintiffs, through counsel, sent "two separate cease and desist letters notifying Defendant(s) the Plaintiffs were represented by an attorney, . . . furnishing such attorney's full contact information, . . . [and] request[ing] that Defendants stop the automated prerecorded calls to Plaintiffs' residential telephone line." (Id. ¶ 24). Defendants received said letters, but the phone calls continued. (Id. ¶¶ 25-26).

On or about December 19, 2011, the Plaintiffs commenced this action by filing a Writ of Summons with the Court of Common Pleas of Dauphin County. (Doc. 1-1, Ex. A). On January 31, 2012, the Plaintiffs filed their Complaint. (Doc. 1-1, Ex. B). On February 24, 2012, the collective Defendants removed this action to this Court. (Doc. 1).

On March 6, 2012, the Defendants filed the instant Motion to Dismiss (Doc. 4) was filed, and the Defendants timely filed a Brief in Support of said Motion on March 20, 2012. (Doc. 6). Local Rule 7.5 requires that briefs in opposition be filed within fourteen (14) days of receipt of the movant's supporting brief; thus, the Plaintiffs' opposition papers were due to this Court on or before April 3, 2012. On April 25, 2012, during a telephone call initiated by the Court, counsel for the Plaintiffs advised that she does not intend to file an opposition brief. Accordingly, pursuant to Local Rule 7.5, this Motion is deemed unopposed.


In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that "raise a right to relief above the speculative level . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than a "sheer possibility." Iqbal, 129 S. Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.' " Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later expounded upon and formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a Rule 12(b)(6) motion to dismiss. Iqbal, 129 S. Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint -- the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a ...

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