Parker v. Exeter Finance Corp.
6:15-cv-01468
M.D. Fla.Oct 7, 2015Background
- Plaintiffs Patricia Parker and Charles Shephard (pro se) sued Exeter Finance alleging wrongful use of a hidden GPS device and an attempted repossession that caused emotional distress.
- Plaintiffs invoked 15 U.S.C. § 1692(f) (FDCPA § 808) claiming “unconscionable” debt-collection practices based on the implanted GPS and the attempted repossession.
- Magistrate Judge previously recommended denial of in forma pauperis and dismissal; Court granted leave to amend only if accompanied by fee or new IFP motion. Plaintiffs filed an Amended Complaint and a second IFP motion.
- The Amended Complaint alleges Exeter (a Texas creditor) implanted a GPS before sale and used Hydra Recovery (agent) to attempt repossession at a restaurant; repossession was not completed. Plaintiffs seek injunctive relief and punitive damages.
- The Magistrate found the IFP showing inadequate (Parker has modest regular income; Shephard’s form sparse) and concluded the Amended Complaint fails to state a plausible FDCPA claim because Exeter is alleged to be a creditor, not a “debt collector.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may proceed in forma pauperis | Parker/Shephard claim limited resources, children, bankruptcy consequences justify IFP | Exeter (via record) shows plaintiffs have insufficient showing of indigence; bankruptcy docket indicates dismissal for abuse | IFP motion denied for inadequate showing of indigence |
| Whether Amended Complaint states an FDCPA claim under §1692(f) | GPS installation and attempted repossession are "unconscionable" debt-collection practices under §1692(f) | Exeter is a creditor, not a "debt collector," so FDCPA does not apply | Claim dismissed as legally deficient because defendant is alleged to be creditor, not debt collector |
| Whether factual allegations plausibly support relief for privacy invasion or emotional distress | Plaintiffs assert undisclosed GPS invasively assisted repossession and caused distress to them and their child | Defendant (and court) treat allegations as insufficient to invoke FDCPA or federal jurisdiction absent debt-collector status | Allegations insufficient to state a plausible federal claim; complaint frivolous and dismissed |
| Whether dismissal should be with prejudice or without leave to amend | Plaintiffs had opportunity to amend following prior Report; no new facts cured defects | Court notes prior chance to amend and failure to allege debt-collector status | Recommendation to dismiss Amended Complaint and deny further IFP; case closed |
Key Cases Cited
- Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636 (11th Cir.) (broad district court discretion over IFP management and frivolousness standard)
- Phillips v. Mashburn, 746 F.2d 782 (11th Cir.) (indigence does not entitle litigant to pursue meritless claims at public expense)
- Sun v. Forrester, 939 F.2d 924 (11th Cir.) (definition of frivolous under §1915 as lacking arguable merit)
- Watson v. Ault, 525 F.2d 886 (5th Cir.) (requirement to show factual and legal basis for alleged wrong to proceed IFP)
- Cogdell v. Wyeth, 366 F.3d 1245 (11th Cir.) (court must consider limited federal jurisdiction when assessing IFP claims)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (standards for pleading factual plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must state a plausible claim to survive dismissal)
- Eley v. Evans, 476 F. Supp. 2d 531 (E.D. Va.) (FDCPA does not create private right of action against a creditor)
- Craig v. Park Fin. of Broward Cnty., Inc., 390 F. Supp. 2d 1150 (M.D. Fla.) (lender/creditor is not subject to FDCPA liability as a debt collector)