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 the second amended complaint for failure to state a claim. Plaintiff has responded in opposition, and the issues are fully briefed.
On November 25, 2014, defendant Jefferson Capital Systems, LLC filed a breach of contract action against plaintiff Gary Chamineak in the Circuit Court of the City of St. Louis to collect a debt plaintiff allegedly owed on a credit card issued by Tribute Card. Defendant attached an affidavit to the petition, attesting that it was the current owner of the debt pursuant to an assignment and that it possessed business records for the credit card account reflecting the balance due and owed. In December 2014, plaintiff was served with a copy of the petition and affidavit. On December 9, 2014, plaintiff filed an answer with affirmative defenses and served discovery requests, asking defendant to produce the documentation and information it referred to in the affidavit. Instead of responding to plaintiff's request, defendant dismissed the lawsuit on December 17, 2014.
Plaintiff brings this action claiming violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. and the Missouri Merchandising Practices Act (MMPA), Mo. Rev. Stat. § 407.010, et seq. Plaintiff alleges that defendant filed the state court lawsuit without any documentation or other evidence sufficient to establish that the debt was valid, that the amount of debt was accurate, or that defendant possessed the requisite standing to sue on the debt. Furthermore, plaintiff asserts that defendant filed the collection action for the purpose of obtaining a default or consent judgment without intending to prove its claims.
In the instant motion, defendant argues that the allegations of the complaint are insufficient to support a claim based on either the FDCPA or the MMPA.
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) (stating that 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." Twombly, 550 U.S. at 570; see also id. at 563 (stating the "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.
When ruling on a motion to dismiss, a court generally may not consider matters outside the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (citations omitted). It may, however, consider matters of public records, materials that do not contradict the complaint, exhibits attached to the pleadings, and materials necessarily embraced by the complaint. Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010). Defendant attached a copy of the petition in the underlying state court case, a copy of the affidavit of account attached to the petition, and the dismissal of that action. These documents are matters of public records and materials necessarily embraced by the complaint. Thus, the Court may consider these in ruling on the motion to dismiss.
A. Litigation Conduct and the FDCPA
Defendant first argues that plaintiff's claims are not cognizable under the FDCPA, because defendant's state court litigation conduct cannot form the basis of a violation of the FDCPA. However, defendant's argument fails because language of the FDCPA indicates that Congress intended for the FDCPA to apply to conduct arising from litigation. Eckert v. LVNV Funding LLC, 647 F.Supp.2d 1096, 1102-03 (E.D. Mo. 2009) (citing Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 231 (4th Cir. 2007)). Specifically, the statute's requirement that debt collectors disclose they are a debt collector in any communication with the consumer does "not apply to a formal pleading made in connection with a legal action." 15 U.S.C. § 1692e(11). This specific exemption to the disclosure requirements of the FDCPA would be superfluous if formal pleadings in state court litigation were entirely exempt from liability under the FDCPA. Eckert, 647 F.Supp.2d at 1103 (citing Sayyed, 485 F.3d at 231). As such, "the language of the FDCPA provides clear evidence that litigation activity is subject to the FDCPA, except to the limited extent that Congress exempted formal pleadings from the requirements of that particular subsection [§ 1692e(11)].'" Id . (quoting Sayyed, 485 F.3d at 231); see also Miljkovic v. Shafritz & Dinkin, P.A., No. 14-13715, 2015 WL 3956570, at *5 (11th Cir. June 30, 2015) ("If Congress had intended to exempt all litigating activities or any one litigating activity from the Act's other provisions, it presumably would have done so expressly, as it did in § 1692e(11).") (internal quotations omitted); cf. Heintz v. Jenkins, 514 U.S. 291, 299 (1995) (holding that the FDCPA "applies to attorneys who regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation").
Plaintiff's claims in this action arise out of statements defendant made in the state court petition and attached affidavit, which constitute litigation activity. Thus, ...