United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge.
Ronald Friend, filed a complaint against Defendants Financial
Recoveries Limited (“Financial Recoveries”), John
Does 1-10, and Corporations X, Y, Z. (Doc. 1). On March 10,
2017, Financial Recoveries filed a motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) and its brief in support. (Docs. 3, 4). On March 31,
2017, Plaintiff filed an amended complaint. (Doc. 5).
Plaintiff alleges that Defendants violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“FDCPA”), as well as a number of
state-law claims. (Id.).
April 14, 2017, Financial Recoveries filed a Rule 12(b)(6)
motion to dismiss the amended complaint and its brief in
support. (Docs. 7-8). On May 22, 2017, the Court ordered that
either Plaintiff file a brief in opposition to Financial
Recoveries' motion to dismiss the amended complaint on or
before June 5, 2017, or risk, inter alia, the
granting of that motion without a merits analysis. (Doc. 12).
On June 5, 2017, Plaintiff filed a brief in opposition. (Doc.
13). On June 19, 2017, Financial Recoveries filed a reply.
(Doc. 14). As a result, Financial Recoveries' motion to
dismiss the amended complaint is ripe for disposition. For
the reasons set forth below, Financial Recoveries' motion
to dismiss the amended complaint, (Doc. 7), will be granted.
STANDARD OF REVIEW
stated, Financial Recoveries' motion to dismiss the
amended complaint is brought pursuant to Federal Rule of
Civil Procedure 12(b)(6). See (Docs. 3, 4).
“This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim
upon which relief can be granted.” Suessenbach
Family v. Access Midstream, 2015 U.S. Dist. LEXIS 40900,
at *2 (M.D. Pa. Mar. 31, 2015) (Mannion, J.). The moving
party bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750
(3d Cir. 2005). All factual allegations are accepted as true
and all inferences are construed in the light most favorable
to the non-moving party. Kaymark v. Bank of Am.,
N.A., 783 F.3d 168, 174 (3d Cir. 2015) (citing
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d
Cir. 2012)). “[D]ismissal is appropriate only if,
accepting all of the facts alleged in the complaint as true,
the plaintiff has failed to plead ‘enough facts to
state a claim to relief that is plausible on its
face.'” Suessenbach Family, 2015 U.S.
Dist. LEXIS 40900, at *2 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)). The non-moving
party's allegations must be sufficient to “raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 544. “This requirement
‘calls for enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of'
necessary elements of the plaintiff's cause of
action.” Suessenbach Family, 2015 U.S. Dist.
LEXIS 40900, at *2-3 (quoting Twombly, 550 U.S. at
544). “Furthermore, in order to satisfy federal
pleading requirements, the plaintiff must ‘provide the
grounds of his entitlement to relief, ' which
‘requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.'” Id. (quoting Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
the court should grant leave to amend a complaint before
dismissing it as merely deficient.” Aspinall v.
Thomas, 118 F.Supp.3d 664, 670-71 (M.D. Pa. 2015)
(Mannion, J.) (citing Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.
2007); Grayson v. Mayview State Hosp., 293
F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000)). “Dismissal without
leave to amend is justified only on the grounds of bad faith,
undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004). When faced
with a motion to dismiss, district courts should freely give
leave to amend, even when the plaintiff does not seek leave
to amend, “when justice so requires, including for a
curative amendment unless such an amendment would be
inequitable or futile.” Free Speech Coal., Inc. v.
Att'y Gen., 677 F.3d 519, 545 (3d Cir. 2012).
to the above-discussed motion to dismiss standard of review,
all facts are taken from Plaintiff's amended complaint,
(Doc. 5), unless otherwise noted.
Recoveries, a company that “does extensive business in
the Commonwealth” of Pennsylvania, reported four (4) of
Plaintiff's accounts “as delinquent, with
derogatory information therein.” (Id. at pp.
3-4). “[U]pon discovering the aforementioned derogatory
information on [his] credit report, Plaintiff sent Defendant
letter(s) both disputing the high balance of each account and
requesting cop[ies] of the original contracts.”
(Id. at p. 4). “Said account was used for
Plaintiff's personal, family and household
purposes.” (Id.). According to Plaintiff,
“[p]rior to the commencement of this action, Defendant
caused certain information about the alleged accounts . . .
to be placed on Plaintiff's consumer report.” (Doc.
5, p. 4). “Such information, ” Plaintiff alleges,
“was updated by Defendant to the Credit Reporting
Agencies . . . on a regular basis, and are reflected on
Plaintiff's Consumer Credit Report.”
(Id.). “The inaccurate information negatively
reflects upon Plaintiff, Plaintiff's credit repayment
history, Plaintiff's financial responsibility as a debtor
and Plaintiff's credit worthiness.” (Id.).
Plaintiff contends that:
[a]t the time of the commencement of this action, Defendant
continued to report and update the information about the
account to those Credit Reporting Agencies, but failed to
either communicate to the [Credit Reporting Agencies] any
changes to the account, including the deletion of the trade
alleges that “Defendant had actual and/or constructive
notice that Plaintiff asked for the account to be verified
because” Plaintiff sent “[l]etters . . . to
Defendant regarding the aforementioned accounts, requesting
both an accounting of the debts, as well as the underlying
contracts regarding said debts” and “[t]he lack
of any Response letters from Defendant.” (Id.
at pp. 4-5). “Notwithstanding such actual or
constructive notice of Plaintiff's request(s) for
verification regarding the alleged debt, ” Plaintiff
continues, “said derogatory information was not
updated, and Defendant continued to constructively, if not
actively report and update the account information on
Plaintiff's consumer report without either
reinvestigating said derogatory information or notating on
the report that the account was disputed.” (Doc. 5, p.
survive a motion to dismiss for failure to state a claim
under the FDCPA, a plaintiff must allege the following: (1)
plaintiff is a “consumer, ” (2) defendant is a
“debt collector, ” (3) defendant's challenged
practice involves an attempt to collect a “debt,
” and (4) the defendant violated a provision of the
FDCPA in attempting to collect the “debt.”
Jensen v. Pressler & Pressler, 791 F.3d 413, 417
(3d Cir. 2015). According to Financial Recoveries,
“[i]t is the last two critical elements that are
detrimental to Plaintiff's claims.” (Doc. 8, p. 9).
As a result, Financial Recoveries argues, Plaintiff's
complaint should be dismissed because it fails to state a
claim upon which relief may be granted. See (Docs.
stated, Plaintiff alleges that Financial Recoveries violated
section 1692g(a) and (b) of the FDCPA. (Doc. 5). In
particular, Plaintiff claims that Financial Recoveries failed
to “issue the notifications required by” the
FDCPA in “direct violation of” section
1692g(a). (Doc. 5, p. 7). As for the claim based on
section 1692g(b), Plaintiff claims that Financial Recoveries
violated that section because it continued collection
activity, “including but not limited to the placing of
derogatory information on Plaintiff's consumer credit
report, without verifying the debt in question to the
consumer . . . .” (Id. at p. 8).
Recoveries argues that Plaintiff's section 1692g(a) claim
fails to state a claim upon which relief may be granted
because “the act of reporting Plaintiff's consumer
debt to a [Credit Reporting Agency] does not constitute an
‘initial communication with a consumer' under the
FDCPA.” (Doc. 8, p. 5). “Therefore, no duties
were triggered or violated by Financial Recoveries.”
response, Plaintiff begins by noting that this matter only
includes “causes of action . . . as related to the
FDCPA.” (Doc. 13, p. 5). According to Plaintiff, the
amended complaint “pointedly excluded any language ...