United States District Court, M.D. Pennsylvania
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE.
before me is the Defendants’ Motion to Dismiss
(See Doc. 7) filed by the Defendants Hayes, Johnson
& Conley, PLLC and Joel D. Johnson (collectively,
“the Defendants”). The Plaintiffs Jeffrey Scott
Bargeski and Diane Rita Bargeski (collectively, “the
Plaintiffs”) allege that the Defendants filed an action
against them in violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq. (See Doc. 1). Because the Plaintiffs state a
claim for relief that the Defendants have violated
§§ 1692f(1), 1692e(2)(A), & 1692e(10) by
demanding unincurred attorneys’ fees and unauthorized
late fees in their debt collection action, but have not
sufficiently alleged a claim under § 1692i(a)(2) for
improper venue, the Defendants' Motion to Dismiss will be
granted in part and denied in part.
facts from the Plaintiffs’ Complaint (Doc. 1), taken as
true and viewed in the light most favorable to the Plaintiffs
are as follows:
Plaintiffs are spouses who reside in New York. (Id.
at 1). On September 4, 1981, the Plaintiffs purchased a
time-share interval, specifically Interval 46 of Unit R90 of
Phase IIIB of the Shawnee Village Planned Residential
Development (“Development”) in Monroe County,
Pennsylvania. (Id. at 13). The Defendants consist of
a law firm, Hayes, Johnson & Conley and an attorney for
the firm, Joel D. Johnson that represent the Timeshare
Association, River Village Phase IIIB (“Timeshare
Association”). (See Id. at 3).
October 9, 2018, the Defendants brought a debt collection
action against the Plaintiffs in Monroe County to recover
$1,861.70 in connection with a consumer debt owed to the
Timeshare Association (“the Underlying
Complaint”). (See Id. at 7-10). In the
Underlying Action, the Defendants requested $861.70 in unpaid
association fees and late fees, and $1,000.00 in reasonable
attorneys’ fees and costs. (Id. at 10).
Pursuant to the Declaration of Protective Covenants, Mutual
Ownership and Easements, dated February 22, 1980
(“Declaration of Protective Covenants”), each
owner of a time-share interval in the Development owes the
Timeshare Association fees for his proportionate share of the
common expenses estimated for the following fiscal year.
(Doc. 7-5 at 27).
30, 2019, the Plaintiffs commenced this action. (See
Doc. 1). The Plaintiffs contend that the Defendants violated
several provisions of the FDCPA by filing the Underlying
Complaint in Monroe County and demanding payment of
unincurred attorneys’ fees and unauthorized late fees.
(Id. at 1-5) The Plaintiffs are seeking damages,
attorney’s fees and costs, and “[s]uch other and
further relief as the Court shall deem just and
proper.” (Id. at 5). On August 5, 2019, the
Defendants filed their Motion to Dismiss (See Doc.
7), arguing that the Plaintiffs have failed to state a claim
upon which relief may be granted under the FDCPA.
(Id. at 1).
Motion has been fully briefed and is ripe for review.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, for failure to state a
claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). “A pleading that states a claim for
relief must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). The statement required by Rule 8(a)(2)
must give the defendant fair notice of the grounds for the
claim. Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). While detailed factual allegations are
not required, conclusory statements that allege the
complainant is entitled to relief are inadequate. Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Legal conclusions that provide the framework for a complaint
must be supported by factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
considering a Rule 12(b)(6) motion, a court is limited to
determining if a plaintiff is entitled to offer evidence in
support of his or her claims. See Semerenko v. Cendant
Corp., 223 F.3d 165, 173 (3d Cir. 2000). A court does
not consider whether a plaintiff will ultimately prevail.
Id. The inquiry at the motion to dismiss stage is
“normally broken into three parts: (1) identifying the
elements of the claim, (2) reviewing the complaint to strike
conclusory allegations, and then (3) looking at the
well-pleaded components of the complaint and evaluating
whether all of the elements identified in part one of the
inquiry are sufficiently alleged.” Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). If there are
well-pleaded factual allegations, then a court must assume
their truthfulness in deciding whether they raise an
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 679 (2007). Dismissal is only appropriate when,
accepting as true all the facts alleged in the complaint,
Plaintiff has not plead enough factual allegations to provide
a reasonable expectation that discovery will lead to evidence
of each necessary element. Phillips v. County of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
deciding a Rule 12(b)(6) motion, a court considers the
allegations in the complaint and exhibits attached to the
complaint. Mayer v. Belichick, 605 F.3d 223, 230 (3d
Cir. 2010). In addition to the complaint and any exhibits
attached, a court may examine “legal arguments
presented in memorandums or briefs and arguments of
counsel.” Pryor v. NCAA, 288 F.3d 548, 560 (3d
Cir. 2002) (quotation omitted). A court may also consider a
“document integral or explicitly relied upon in the
complaint.” In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). At bottom,
documents may be examined by a court when ruling on a motion
to dismiss when the plaintiff had proper notice of the
existence of the documents. Id. A court need not
assume the plaintiff can prove facts that were not alleged in
the complaint, see City of Pittsburgh v. W. Penn Power
Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or
credit a complaint's “‘bald
assertions’” or “‘legal
conclusions.’” Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1429–30 (3d Cir. 1997)).
with their briefs, the Plaintiffs have attached to their
Complaint, the Underlying Complaint and the Deed between
Security Bank and Trust Company and the Plaintiffs, dated
September 4, 1981. (See Doc. 1). The Defendants also
attached these documents to their Motion to Dismiss, in
addition to the Declaration of Protective Covenants and the
Supplementary Declaration of Protective Covenants, Mutual
Ownership and Easements, dated June 2, 1980. (See
Doc. 7-5, 7-6). As a court deciding a motion to dismiss may
consider undisputably authentic documents the parties submit,
the aforementioned documents will form part of the record for
resolution of the motion to dismiss. The Plaintiffs allege
the Defendants breached the FDCPA by (1) filing a lawsuit in
a district where the Plaintiffs do not reside in violation of
§ 1692i(a)(2), (2) misrepresenting the amount of debt
owed to the Timeshare Association by including $1,000.00 of
unincurred attorney’s fees in violation of §§
1692e(2)(A) & 1692e(10), (3) demanding $1,000.00 in
unincurred attorney’s fees, not authorized by law or
the Declaration of Protective Covenants, in violation of
§ 1692f(1), and (4) demanding a judgment amount that
included unauthorized late fees in violation of §§
1692f(1), 1692e(2)(A), & 1692e(10). (Doc. ...