Neptune v. Whetstone Partners, LLC
2014 U.S. Dist. LEXIS 105190
S.D. Fla.2014Background
- Plaintiff Patrick Neptune received approximately 45 calls from Whetstone Partners (d/b/a eTitleLoan) to his cellular phone between Nov. 2013 and Apr. 2014 while debt payments were not yet due.
- On Nov. 14, 2013 Neptune received a prerecorded voicemail about a payment due and told a company agent to stop calling and revoked any consent for autodialed/prerecorded calls.
- Neptune answered several subsequent calls and repeatedly asked Whetstone to stop, but calls continued; some days saw multiple calls and calls on consecutive days.
- Neptune alleges Whetstone’s policies permitted continued autodialed/prerecorded calls and provided no means to remove his number from call lists.
- Plaintiff sued under the TCPA (47 U.S.C. § 227(b)(1)(A)(iii)) and the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.72(7) and (9); Whetstone moved to dismiss under Rule 12(b)(6).
- The court denied the motion to dismiss as to both TCPA and FCCPA claims, finding the complaint pleaded sufficient factual matter to state plausible claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Neptune adequately alleged use of an ATDS or prerecorded voice in violation of the TCPA | Neptune alleged ~45 calls, multiple same-day/back-to-back calls, a prerecorded-sounding voicemail, and that calls continued after he revoked consent | Whetstone argued Neptune merely recited statutory elements without supporting factual detail | Court: Allegations (frequency, timing, prerecorded voicemail, continued calls after revocation) are sufficient to plausibly allege ATDS/prerecorded use; TCPA claim survives dismissal |
| Whether repeated calls constituted harassment under FCCPA §559.72(7) | Repeated calls after multiple requests to stop, including several same-day and consecutive-day calls, were sufficiently frequent to abuse/harass | Whetstone argued reminder calls do not necessarily amount to harassment | Court: Given repeated requests to stop and continued calling about payments not yet due, allegations suffice to state §559.72(7) claim |
| Whether Whetstone asserted a non‑existent legal right or acted with knowledge in violation of FCCPA §559.72(9) | Neptune alleged payments were due on the 17th monthly and Whetstone knowingly attempted to collect before they were due — asserting a right that did not exist | Whetstone argued Neptune failed to plead that a legal right was asserted or that Whetstone had actual knowledge | Court: Neptune plausibly alleged Whetstone knew when payments were due and attempted to collect earlier; §559.72(9) claim survives dismissal |
| Whether dismissal standard (Rule 12(b)(6)) required more detailed factual pleading | Neptune relied on Twombly/Iqbal plausibility standard and factual allegations showing pattern and knowledge | Whetstone urged stricter pleading (e.g., specifics proving autodialer) | Court: Under Twombly/Iqbal and related Eleventh Circuit precedent, the complaint’s factual allegations suffice to meet plausibility at pleading stage |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (clarifies that legal conclusions need factual support)
- Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043 (view complaint in plaintiff’s favor at pleading stage)
- Franklin v. Curry, 738 F.3d 1246 (labels and conclusions insufficient)
- Chaparro v. Carnival Corp., 693 F.3d 1333 (court need not assume truth of conclusory allegations)
- Miyahira v. Vitacost.com, Inc., 715 F.3d 1257 (plausibility standard supports discovery expectation)
- Bentley v. Bank of Am., N.A., 773 F. Supp. 2d 1367 (FCCPA requires pleading knowledge/intent)
- Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291 (knowledge/intent required for FCCPA claim)