United States District Court, W.D. Missouri, Western Division
ORDER GRANTING DEFENDANT'S MOTION TO
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
case arises out of Defendant Midland Credit Management,
Inc.'s (“MCM”) attempt to collect a debt
incurred by Plaintiff Sharla Koller
(“Plaintiff”). Plaintiff alleges MCM made a false
or misleading representation to her and its communication
overshadowed or was inconsistent with its disclosure of her
right to dispute the debt, in violation of the Fair Debt
Collection Practices Act (“FDCPA”). 15 U.S.C.
§§ 1692e, 1692g(b).
pending before the Court is Defendant's Motion to Dismiss
for Failure to State a Claim (Doc. 7). For the reasons set
forth below, Defendant's motion is GRANTED.
complaint may be dismissed if it fails “to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint must meet two conditions to survive a
Rule 12(b)(6) motion. First, it must “contain
sufficient factual matter, accepted as true, to state a claim
to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While the complaint does not need detailed
factual allegations, it must include “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A “formulaic recitation of the elements of a
cause of action will not do.” Id. at 555
(citations omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft,
556 U.S. at 678. The plaintiff need not demonstrate the claim
is probable, only that it is more than just possible.
Id. In reviewing a motion to dismiss, the court
assumes the facts alleged in the complaint are true and draws
all reasonable inferences from those facts in the
plaintiff's favor. Monson v. Drug Enforcement
Admin., 589 F.3d 952, 961 (8th Cir. 2009). The court
generally ignores materials outside the pleadings but may
consider materials that are necessarily embraced by the
pleadings. Miller v. Toxicology Lab. Inc., 688 F.3d
928, 931 (8th Cir. 2012); see also Gorog v. Best Buy
Co., 760 F.3d 787, 791(8th Cir. 2014) (contract held to
be embraced by complaint where plaintiff quoted from contract
and contract was the sole basis for plaintiff's
December 21, 2016, MCM sent Plaintiff a collection letter (the
“Letter”). Compl. ¶ 10 (Doc. 1-1); Letter (Doc.
1-1 at 10-11). It is titled “NOTICE OF NEW OWNERSHIP
AND PRE-LEGAL REVIEW.” Letter at 1. The body of the
Letter's first page states:
[MCM] is considering forwarding this account to an attorney
in your state for possible litigation. However, such
forwarding will not occur until after the expiration of the
validation period described on the back of this letter. Upon
receipt of this notice, please call to discuss your options.
If we don't hear from you or receive payment by
02-04-2017, we may proceed with forwarding this account to an
In addition to the validation rights described on the back of
this letter, here are some possible options:
- Pay your full balance . . .
- Call us to see how to qualify for discounts and payment
plans. . . .
Id. At the top of the Letter, in large font, is a
direction to call MCM “by 02-04-2017 to Discuss
Options.” Id. And, in the left margin, the
Letter states in bold, “Once your account is paid:
collection calls will stop on this account [and] collection
letters will stop on this account, ” followed by,
“Reply by 02-04-2017.” Id. The Court
refers to this February 4, 2017, deadline as the
bottom of the first page, the Letter directs the reader to
“PLEASE SEE REVERSE SIDE FOR IMPORTANT DISCLOSURE
INFORMATION.” Id. On the reverse, below a
shaded table providing ...