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Brenda Perry v. Oxford Law

August 29, 2012


The opinion of the court was delivered by: Yohn, J.


Plaintiff, Brenda Perry, brings this action against defendants Oxford Law, LLC ("Oxford") and Cuzco Capital Investment Management, LLC ("Cuzco") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. Before me is Cuzco's motion to dismiss the claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons I state below, I will grant Cuzco's motion and dismiss Perry's claims against it without prejudice because the complaint currently contains insufficient factual allegations to state a claim against Cuzco under the FDCPA.

I. Factual and Procedural Background

Perry, a resident of Pennsylvania, alleges that in March 2012, Oxford contacted her multiple times in an attempt to collect an outstanding debt. (Compl. ¶ 6.) Specifically, she claims that on March 15, 2012, Oxford called her cell phone and left a voice-mail message. In the message, the caller identified himself as Austin Graham, left his phone number and extension, and requested that Perry call him back regarding "a very important business matter." (Id. ¶ 7.) On March 21, 2012, Oxford again allegedly called Perry's cell phone and left a message. The caller identified himself as Austin Graham, left the same number and extension, and requested that Perry call back regarding "account number 5999313." (Id. ¶ 8.)

Finally, on March 27, 2012, Oxford allegedly sent Perry a letter regarding her credit card account with Chase Bank USA. (Id. ¶ 9.) This account appears to be the same account that was mentioned in the second phone call.*fn1 (Id.) Perry states that, around this time, the account was purchased by Cuzco-she does not mention when this happened in relation to the other events, nor does she state how she learned this information. (Id.) The letter stated that Oxford represented Cuzco, and that Cuzco demanded full payment on Perry's debt. (Id.) It also provided that, should Perry dispute the debt in writing, Oxford will obtain and provide verification of the validity of the debt. (Id.)

Perry wrote a letter to Oxford in response. She asked Oxford to refrain from contacting her without first providing the following: 1) proof that Oxford owned the debt or was authorized to collect on behalf of Cuzco; 2) proof that the debt was actually incurred by Perry with regard to the original creditor, Chase Bank; 3) proof of any judgment against Perry; and 4) proof that Oxford was licensed to collect debts in Maryland. (Id. ¶ 10.)

On June 12, 2012, Perry filed the instant action, claiming three violations of the FDCPA. First, in violation of section 1692e(11), Oxford failed to notify her during its first phone call that the communication was an attempt to collect a debt, and that any information obtained would be used for that purpose. (Id. ¶ 11.) Second, in violation of section 1692e(11), Oxford failed to notify her in each communication that the communication was from a debt collector. (Id.) Third, in violation of section 1692d(6), Oxford failed "to disclose [its] true corporate or business name in a telephone call to" Perry. (Id.) She named Cuzco and Oxford as defendants in a single count of "[v]violation of the [FDCPA]."

On July 25, 2012, Cuzco-through its attorney, Oxford-filed the motion to dismiss currently under consideration. It alleged three defects in the complaint warranting dismissal of the claims against it under Rule 12(b)(6). First, Cuzco has not been properly identified as a "debt collector" under the FDCPA. (Cuzco's Mot. to Dismiss Pl.'s Compl. Under F.R.C.P. 12(b)(6) ("Mot. to Dimiss") ¶ 5.) Second, "Cuzco's actions have never been specifically implicated as being in violation of the provisions of the FDCPA listed in [Perry's] complaint." (Id. ¶ 6.) Third, the complaint does not contain factual allegations "sufficient . . . to raise a right to relief above the speculative level against either defendant" and is insufficiently specific to pass muster under the requirements of federal law. (Id. ¶¶ 8,9.) I will address Cuzco's contentions in turn.

II. Discussion

In deciding a motion to dismiss under Rule 12(b)(6), courts 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 of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks and citation omitted). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must contain sufficient factual matter to be plausible on its face. Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"; a sheer possibility that a defendant acted unlawfully is not sufficient. Id.

1. Failure to Identify Cuzco as a "Debt Collector" Under the FDCPA. Cuzco argues that the complaint does not identify it as a debt collector, as required for liability under the FDCPA. See 15 U.S.C. § 1692k(a) ("any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person . . .") (emphasis added). It points to paragraph 5 of the complaint:

At all relevant time herein, [Cuzco] was a company engaged, by the use of the mails and telephone, in the business of collecting a debt from Plaintiff. Defendant LRL [sic] regularly attempts to collect debts alleged to be due another, and therefore is a 'debt collector' as defined by the FDCPA, 15 U.S.C. § 1692a(6). (Compl. ¶ 5.) In this part of its argument, Cuzco appears to be relying solely on Perry's mention of "LRL"-"inexplicably, Plaintiff alleges that an entity it labels as 'Defendant LRL' is a debt collector . . . ." (Mot. to Dismiss ¶ 4.)*fn2

The mention of "LRL" is clearly a typographical error. Perry represents as much in her response to Cuzco's motion to dismiss: "the reference to 'LRL' in paragraph 5 of the Complaint is a typographical error." (Pl.'s Resp. in Opp'n to Cuzco's Mot. to Dismiss ("Pl.'s Resp.") at 10 n.1.) Furthermore, I must "construe the complaint in the light most favorable" to Perry. These factors justify overlooking Perry's mistake. See Prophete v. Blackstone Grp., No. 11-7425, 2012 WL 1565397, at *2 n.1 (D.N.J. May 2, 2012) (correcting obvious typographical error); In re Johnson & Johnson Derivative Litig., No. 10-2033, 2011 WL 4526040, at *20 n.16 (D.N.J. Sept. 29, 2011) ("reading the Complaint in the light most favorable to the Plaintiffs, the Court reads Plaintiffs' reference . . . as a typographical error"); Di Fillipo v. Southland Corp., No. 94-2650, 1994 WL 273310, at *1 (E.D. Pa. June ...

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