United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT
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.
Motion to Dismiss (#22)
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.
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.
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).
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.”).
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.
Motion to Compel (#24)
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.
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.
disputed discovery requests will be discussed in turn.
2: agreements between defendant and the original creditors
for Production 5: all documents related to the assignment or
sale of this account ...