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Schlattmann v. Portfolio Recovery Associates, LLC

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

February 17, 2017

ROBERT SCHLATTMANN, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         Plaintiff Robert Schlattmann brings this case under the Fair Debt Collection Practices Act (“FDCPA”) and Telephone Consumer Protection Act (“TCPA”) against defendant Portfolio Recovery Associates, LLC (“PRA”), alleging that PRA called him more than 100 times for a debt that Schlattmann did not owe. Defendant moves to dismiss Count II of plaintiff's amended complaint (#22), and plaintiff moves to compel certain discovery disclosures from defendant (#24). The motions have been fully briefed.

         I. Motion to Dismiss (#22)

         Defendant has moved to dismiss plaintiff's Count II for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim must be facially plausible, meaning that the ‘factual content. . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must “accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” will not pass muster. Iqbal, 556 U.S. at 678.

         Plaintiff alleges that defendant began calling plaintiff's residential telephone number, ending in -8996, from several different telephone numbers on December 1, 2014. The phone calls continued through June 11, 2016 and totaled over one hundred in number; however, the defendant's phone calls were allegedly intended to collect on a debt that plaintiff did not owe. Plaintiff alleges that he never entered into an agreement by which he consented to be contacted by telephone by defendant, and he did not have a preexisting or current business relationship with defendant.

         Plaintiff's Count II claims that defendant's conduct violated the TCPA, 47 U.S.C. § 227, et seq. and 47 C.F.R. 61.1200, et seq., by knowingly and willfully placing non-emergency prerecorded telephone calls to plaintiff's phone without express authorized consent of plaintiff, without an established business relationship, and without an exemption and/or without a commercial purpose in violation of 47 U.S.C. § 227(b)(1)(B).

         Defendant moves to dismiss Count II because it says its actions were exempted from the TCPA provision relied upon by plaintiff. The TCPA provision prohibits initiating “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes, is made solely pursuant to the collection of a debt owed to our guaranteed by the United States, or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B).” 47 U.S.C. § 227(b)(1)(B). Paragraph (2)(B) provides that the “Commission shall prescribe regulations to implement the requirements of this subsection, ” and the Commission's regulations provide that § 227(b)(1)(B) does not apply to a call if it is “made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing.” 47 C.F.R. § 64.1200(a)(3)(iii). Numerous other courts have held that this regulation exempts collection calls made to non-debtors because they are commercial calls that do not include an unsolicited advertisement. See Hoover v. Monarch Recovery Mgmt., Inc., 888 F.Supp.2d 589, 604 (E.D. Pa. 2012); Vandiver v. Glob. Credit & Collection Corp., Inc., 4:14-CV-00011 KGB, 2015 WL 11108884, at *4 (E.D. Ark. Mar. 30, 2015); Corson v. Accounts Receivable Mgmt., Inc., Case No. 1:13-cv-1903, 2013 WL 4047577, at *10 (D. N.J. Aug. 9, 2013); see also In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8773 (1992) (finding “debt collection calls ... are adequately covered by exemptions we are adopting here for commercial calls which do not transmit an unsolicited advertisement and for established business relationships.... [T]hese exemptions would also apply where a third party places a debt collection call on behalf of the company holding the debt.”); In Re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1834 (2012) (“Because the Commission determined that debt collection calls are not telemarketing calls, it concluded that a specific exemption for debt collection calls was not warranted.”).

         Although plaintiff suggests he does not know what defendant's business is or for what purpose it called him, he at the same times alleges that the defendant called plaintiff “as a debt collector to collect a consumer debt.” (#17 at ¶ 26.) The complaint does suggest, in the alternative, that defendant was calling plaintiff “as a non-debt collector, but for an unlawful purpose, including for an unsolicited advertisement or telephone solicitation.” (Id. at ¶ 32.) Such an allegation would remove defendant's conduct from the regulatory exemption. However, defendant characterizes that alternative allegation as a “single, contradictory conclusion” that cannot state a claim and urges this Court to adopt the reasoning in Doucette v. GE Capital Retail Bank, which involved a nearly identical situation in which the plaintiff attempted to fashion a TCPA claim from a collection calls made to a non-debtor. No. 14-CV-012-LM, 2014 WL 4955675, at *2 (D.N.H. Oct. 2, 2014). There, as here, the plaintiffs argued that “there is no evidence that the [automated] calls [they received] did not also include an unsolicited advertisement or a telephone solicitation.” Id. Relying on law well-established in the Eighth Circuit as well as in the First Circuit, the court there held that it must “base[] its analysis on the well-pleaded facts in the complaint.” Id. Indeed, as the Supreme Court has held, “Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Plaintiff's conclusion that the calls were by a “non-debt collector” is not supported by the necessary facts to escape the TCPA exemption because he does not allege that the calls “include[d] or introduce[d] an advertisement or constitute[d] telemarketing.” 47 C.F.R. § 61.1200(a)(3)(iii). Instead, nearly every allegation involves defendant's making collection calls, not advertising or telemarketing calls. Although plaintiff complains of “factual uncertainty” (#26 at 5) as to the purpose of defendant's calls and the need for discovery, plaintiff had the burden to plead a plausible claim. The plaintiff's TCPA claim is not plausible on its face and will be dismissed. See id.

         III. Motion to Compel (#24)

         Plaintiff contends that defendant's responses to certain of plaintiff's discovery requests have been inadequate. In particular, plaintiff seeks complete responses to his Interrogatories No. 2, 3, 5, 6, 7, 8, 10, and 13 and Requests for Production No. 1, 2, 3, 5, 8, 11, 12, and 17.

         The general rule regarding discovery is that parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1); WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011).

         The disputed discovery requests will be discussed in turn.

         Interrogatory 2: agreements between defendant and the original creditors

         Request for Production 5: all documents related to the assignment or sale of this account ...


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