United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CAROL E. JACKSON, District Judge.
This matter is before the Court on defendant's motion to dismiss Counts I, III, IV, and V of plaintiff's complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has filed a response in opposition to the motion and the issues are fully briefed.
Plaintiff Joseph Petri brings this action alleging that defendant Valarity, LLC, violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., and the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227 et seq., while attempting to collect a consumer debt allegedly owed by plaintiff to a third party.
Plaintiff alleges that, on or around January 28, 2014, defendant called him on his cell phone to collect a debt for medical services provided by Mercy Hospital. Complaint ¶¶ 11, 13. Defendant did not have plaintiff's prior express written consent to call his cell phone and failed to inform him that he had a right to dispute the debt. ¶¶14, 17. During the initial call, plaintiff disputed the debt and asked for verification, which he has never received. ¶¶15-16. Over the next three months, plaintiff received further cell phone calls from defendant. ¶¶19, 21, 26-27. He alleges that he expressly rescinded any consent for defendant to call his cell phone, stated that he did not want to receive calls during the evening, and disputed the debt, all to no effect. ¶¶18, 22, 24, 27. Some of the calls were placed using an automatic dialing system. ¶¶19, 25. On March 13, 2014, defendant called using the automatic dialing system and hung up when plaintiff tried to respond. ¶20.
II. Legal Standard
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, "even if it strikes a savvy judge that actual proof of those facts is improbable." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams , 490 U.S. 319, 327 (1989) ("Rule 12(b)(6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes , 416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely"). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id . A viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. , 550 U.S. at 570. See also id. at 563 ("no set of facts" language in Conley v. Gibson , 355 U.S. 41, 45-46 (1957), "has earned its retirement.") "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 555.
"The purpose of the FDCPA is to eliminate abusive debt collection practices by debt collectors, ... and debt collectors are liable for failure to comply with any provision of the Act." Dunham v. Portfolio Recovery Assocs., LLC , 663 F.3d 997, 1000 (8th Cir. 2011). The FDCPA provides for strict liability and is to be construed liberally to protect consumers. Hinten v. Midland Funding, LLC, No. 2:13-CV-54 (DDN), 2013 WL 5739035 at *5 (E.D. Mo. Oct. 22, 2013). In order to sustain a claim against a debt collector under the FDCPA, a plaintiff must prove:
1) plaintiff has been the object of collection activity arising from a consumer debt; 2) the defendant attempting to collect the debt qualifies as a debt collector under the Act; and 3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA.
O'Conner v. Credit Prot. Ass'n, LP, No. 4:11-CV-2187 (SNLJ), 2013 WL 5340927 at *6 (E.D. Mo. Sept. 23, 2013). There is no dispute that plaintiff's complaint adequately pleads the first two elements.
A. Count I - Violation of 15 U.S.C. § 1692c(a)(1)
Plaintiff asserts that defendant violated § 1692c(a)(1), which provides:
Without the prior consent of the consumer given directly to the debt collector..., a debt collector may not communicate with a consumer in ...