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Istre v. Miramed Revenue Group, LLC

United States District Court, E.D. Missouri, Eastern Division

October 7, 2014

JASON ISTRE, Plaintiff,
v.
MIRAMED REVENUE GROUP, LLC., VIRTUAL RECOVERY, LLC, and TONY MIRA, Defendants.

MEMORANDUM AND ORDER

DAVID D. NOCE, Magistrate Judge.

This action is before the court on the motion of defendants Miramed Revenue Group, LLC ("MRG"), Virtual Recovery, LLC, and Tony Mira to dismiss plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6). (Doc. 8.) The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court heard oral argument on September 25, 2014.

I. BACKGROUND

On July 3, 2014, plaintiff Jason Istre commenced this action in the Circuit Court of Jefferson County, Missouri. Defendants removed this action to this court pursuant to 28 U.S.C. § 1441 for federal question jurisdiction. The Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., upon which plaintiff's claims are based, provides this court subject matter jurisdiction without regard to the amount in controversy. 15 U.S.C. § 1692k(d).

According to plaintiff's factual allegations, the following occurred. Plaintiff, a "consumer" for purposes of the FDCPA, resides in Missouri and has debts for medical services he received. (Doc. 7 at ¶¶ 4-5.) In mid-June 2014 plaintiff retained an attorney to represent him regarding his debts, including those which defendants are attempting to collect from him. ( Id. at ¶ 15.) Shortly after retaining legal counsel plaintiff phoned defendant MRG to ask about the debt and to inform MRG that he had retained counsel regarding the debts MRG was trying to collect. ( Id. at ¶ 17.) At the beginning of this phone call plaintiff told MRG he had retained counsel for this debt. ( Id. ¶¶ 19-20.) MRG did not end the call at this point, but rather asked plaintiff, "why are you having a lawyer involved in this?" ( Id. at ¶ 23) Plaintiff repeated that he hired counsel with respect to this debt, to which MRG responded "So how are you going to go about this?" ( Id. at ¶ 24-25.) MRG also asked plaintiff to set up a payment plan and again asked why he had retained counsel. ( Id. at ¶ 27-28.) Only after plaintiff stated again that he had retained counsel regarding his debt did MRG request the lawyer's contact information, which plaintiff provided immediately. ( Id. at ¶¶ 29-31.)

Upon these alleged facts, plaintiff alleges defendants attempted to collect a debt from him after being informed of his representation by counsel, in violation of 15 U.S.C. § 1692c, and that defendants engaged in "harassing, abusive, and unconscionable conduct" in violation of §§ 1692d-f. ( Id. at ¶ 36.)

Plaintiff seeks release from the alleged debt, compensatory damages, costs, and reasonable attorney's fees, pursuant to section 1692k. ( Id. at 6)

II. MOTION TO DISMISS

Defendants move to dismiss, arguing that plaintiff fails to state a claim under the FDCPA. F. R. Civ. P. 12(b)(6). Plaintiff argues that case law supports his interpretation of the FDCPA's restrictions on debt collectors' communications with consumers. Defendants also argue that plaintiff's pleadings are mere legal conclusions rather than factual allegations. Plaintiff counters that pleadings merely need to give defendants fair notice of his claims and the grounds upon which they rest, a standard he has met. (Docs. 8-10, 12.)

III. MOTION TO DISMISS STANDARD

A motion to dismiss under F. R. Civ. P. 12(b)(6) challenges the legal sufficiency of the complaint. See Carton v. Gen. Motor Acceptance Corp. , 611 F.3d 451, 454 (8th Cir. 2010). To survive a Rule 12(b)(6) motion to dismiss, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). To meet the plausibility standard, the complaint must contain "more than labels and conclusions." Id. at 555. The pleading must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

IV. DISCUSSION

Plaintiff seeks relief for alleged violations of four sections of the FDCPA, 15 U.S.C. §§ ...


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