The opinion of the court was delivered by: James Knoll Gardner United States District Judge
This matter is before the court on the Motion of Defendant, Monarch Recovery Management, Inc., for Judgment on the Pleadings, filed October 25, 2011. Plaintiff, Angela Hoover's Opposition to Defendant's Motion for Judgment on the Pleadings was filed November 8, 2011. *fn1
For the reasons expressed below, I grant in part, and deny in part, defendant's motion for judgment on the pleadings brought pursuant to Federal Rule of Civil Procedure 12(c). Specifically, I grant defendant's motion for judgment on the pleadings and dismiss with prejudice the claims in Count I of Plaintiff's Complaint alleging that defendant violated § 1692d, generally, of the Fair Debt Collection Practices Act ("FDCPA") *fn2 (which prohibits harassing, oppressing, or abusing a debtor in the attempt to collect a debt); § 1692e of the FDCPA (which prohibits false, deceptive or misleading representations by a debt collector); and § 1692f of the FDCPA (which prohibits unfair or unconscionable means to collect a debt). I dismiss these claims because I agree with defendant that the Complaint fails to allege sufficient facts to support them.
I also grant defendant's motion for judgment on the pleadings and dismiss without prejudice to replead the claims in Count I of plaintiff's Complaint alleging that defendant violated the FDCPA generally and that defendant acted in an otherwise deceptive, unfair and unconscionable manner and failed to comply with the FDCPA. I dismiss these claims because I agree with defendant that the Complaint fails to allege sufficient facts to support them.
Furthermore, I grant defendant's motion for judgment on the pleadings and dismiss with prejudice the claims in Count II of plaintiff's Complaint alleging that defendant violated the Telephone Consumer Protection Act ("TCPA") *fn3 (which prohibits calling a residential telephone line using an artificial or prerecorded voice without prior consent). I dismiss these claims because I agree with defendant that the Complaint fails to allege sufficient facts to support them.
However, I deny defendant's motion in all other respects. Specifically, I conclude that the factual averments contained in Count I plaintiff's Complaint support a reasonable inference that defendant violated § 1692d(5) of the FDCPA (which prohibits harassment by a debt collector by repeated or continuous telephone calls).
Finally, I grant plaintiff leave to file an amended complaint to allege, if she can, sufficient facts to state claims under §§ 1692c(b) and 1692g of the FDCPA. I also grant plaintiff leave to amend to allege, if she can, sufficient facts to support that part of that part of Count I of her Complaint alleging that defendant violated the FDCPA generally and that defendant acted in an otherwise deceptive, unfair and unconscionable manner and failed to comply with the FDCPA.
This court has jurisdiction in this matter pursuant to 15 U.S.C. § 1692k(d) *fn4 and 28 U.S.C. § 1331 because plaintiff's Complaint alleges that defendant violated the Fair Debt Collection Practices Act and thus poses a federal question. This court also has jurisdiction in this matter pursuant to 28 U.S.C. § 1367(a) because plaintiff's Complaint alleges that defendant violated the Telephone Consumer Protection Act, and because the conduct which plaintiff alleges violates the TCPA arises out of the same case or controversy as plaintiff's FDCPA claims. *fn5
Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to plaintiff's claims allegedly occurred in Strasburg, Lancaster County, Pennsylvania, which is located in this judicial district.
Pursuant to Federal Rule of Civil Procedure 12(c), judgment on the pleadings will be granted only if "the movant clearly establishes there are no material issues of fact, and [it] is entitled to judgment as a matter of law." Sikirica v. Nationwide Insurance Company, 416 F.3d 214, 220 (3d Cir. 2005) (citing Society Hill Civic Association v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)). The court "must view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sikirica, 416 F.3d at 220.
A party may move for judgment on the pleadings "[a]fter the pleadings are closed-but early enough not to delay trial." Fed.R.Civ.P. 12(c). The pleadings are closed after an answer is filed, unless a reply to any additional claims asserted in the answer has not been filed. Austin Powder Company v. Knorr Contracting, Inc., 2009 WL 773695, at *1 (M.D.Pa. Mar. 20, 2009).
Ordinarily, in deciding a motion for judgment on the pleadings, the court considers the pleadings and attached exhibits, *fn6 undisputedly authentic documents attached to the motion for judgment on the pleadings if plaintiff's claims are based on the documents, *fn7 and matters of public record. *fn8
However, where, as here, a motion for judgment on the pleadings asserts that plaintiff fails to state a claim upon which relief can be granted, I consider the motion under the same standard as a Rule 12(b)(6) motion even where no motion to dismiss under Rule 12(b)(6) has been made. *fn9 See, e.g., Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991); Doe v. McVey, 381 F.Supp.2d 443, 448 (E.D.Pa. 2005) (Pollak, S.J.). Therefore, I consider defendant's motion under a Rule 12(b)(6) standard of review.
To determine the sufficiency of a complaint in these circumstances, the court looks only to the facts alleged in the complaint and the content of any documents to which the complaint makes reference. See, e.g., NIA Learning Center, Inc. v. Empire Fire and Marine Insurance Companies, 2009 WL 3245424, at *7 (E.D.Pa. Oct. 1, 2009)(Baylson, J.).
A claim may be dismissed under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted."
A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief". Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn10
In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Although "conclusory" or "bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, 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. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.
Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).
Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.
A well-pled complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).
In her two-count Complaint, plaintiff Angela Hoover alleges that defendant Monarch Recovery Management, Inc. violated 15 U.S.C. §§ 1692d-1692f of the Fair Debt Collection Practices Act (Count I) and section 227(b)(1)(B) of the Telephone Consumer Protection Act (Count II). 47 U.S.C. § 227(b)(1)(B). *fn11
Specifically, in Count I plaintiff alleges that defendant: (1) violated the FDCPA generally; (2) violated § 1692d, which prohibits harassing a consumer in the collection of an alleged debt; (3) violated § 1692d(5), which prohibits calling a consumer repeatedly or continuously with intent to harass, annoy, or abuse the consumer; (4) violated § 1692e, which prohibits using false, deceptive, or misleading means in the collection of an alleged debt; (5) violated § 1692f, which prohibits using unfair or unconscionable means to attempt to collect an alleged debt; and (6) acted in an otherwise deceptive, unfair and unconscionable manner and failed to comply with the FDCPA. *fn12
In Count II of plaintiff's Complaint, she alleges that defendant violated § 227(b)(1)(B) of the TCPA, which prohibits calling a residential telephone using an artificial prerecorded voice without the consent of the individual being called. *fn13
Based upon the well-pled averments in plaintiff's Complaint, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.
Plaintiff Angela Hoover is an adult individual who resides in Strasburg, Lancaster County, Pennsylvania. Defendant Monarch Recovery Management, Inc. is a debt collection company which sought to collect an alleged consumer debt from plaintiff. Plaintiff's alleged debt arose from transactions primarily for personal, family, and household purposes. *fn14
Defendant contacted plaintiff constantly and continuously on her home telephone from late May, 2010 until early August, 2010, seeking payment for an alleged consumer debt. Plaintiff received both telephone calls and recorded voice messages from defendant. Defendant willfully and knowingly used an "automated telephone dialing system or pre-recorded or artificial voice" when contacting plaintiff on the telephone. *fn15
Defendant contacted plaintiff for debt collection purposes, on average, more than ten times per week for approximately eleven weeks. Examples of particular times defendant placed calls to plaintiff's home include Monday, May 24, 2010, at 8:15 a.m., Wednesday, May 26, 2010, at 9:25 a.m., and Friday, May 28, 2010, at 8:24 a.m. *fn16
Plaintiff received automated, prerecorded voice messages on her home answering machine, which were able to be heard by members of plaintiff's family, including her minor children. The voice messages contained the following message:
This is a message for Angela Hoover. If this is not you please hang up or disconnect. By continuing to listen to this message you acknowledge you are Angela Hoover. This is Monarch Recovery Management. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please contact me about this matter at 888-220-2577 and refer to file number 98500370. Thank you. *fn17
Examples of particular times defendant left the above voice message include June 8, 2010, at 8:23 a.m.; July 5, 2010; July 6, 2010 at 9:26 a.m.; July 11, 2010 at 12:20 p.m.; July 13, 2010, at 8:57 a.m.; and August 3, 2010, at 8:13 a.m. *fn18
Plaintiff provided neither defendant, nor the original creditor of the alleged debt, express consent to make telephone calls by an automatic telephone dialing system or by a prerecorded or artificial voice. Defendant knew that it did not have plaintiff's consent prior to placing these calls. *fn19
Finally, when plaintiff spoke with a representative of defendant, defendant's representative asked plaintiff personal questions, including whether she was married and how many dependents she had. Plaintiff further avers that defendant's representative sought other unidentified personal information. *fn20
Count I Section 1692d: Harassment or Abuse Requesting Personal Information Section 1692d of the Fair Debt Collection Practices Act provides that "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, ...