OPINION
This matter is before the court on the Motion of Defendant, Monarch Recovery Management, Inc., for Judgment on the Pleadings, filed October 25, 2011. Plaintiff, Angela Hoover’s Opposition to Defendant’s Motion for Judgment on the Pleadings was filed November 8, 2011.
SUMMARY OF DECISION
For the reasons expressed below, I grant in part, and deny in part, defen
I also grant defendant’s motion for judgment on the pleadings and dismiss without prejudice to replead the claims in Count I of plaintiffs Complaint alleging that defendant violated the FDCPA generally and that defendant acted in an otherwise deceptive, unfair and unconscionable manner and failed to comply with the FDCPA. I dismiss these claims because I agree with defendant that the Complaint fails to allege sufficient facts to support them.
Furthermore, I grant defendant’s motion for judgment on the pleadings and dismiss with prejudice the claims in Count II of plaintiffs Complaint alleging that defendant violated the Telephone Consumer Protection Act (“TCPA”)
However, I deny defendant’s motion in all other respects. Specifically, I conclude that the factual averments contained in Count I plaintiffs Complaint support a reasonable inference that defendant violated § 1692d(5) of the FDCPA (which prohibits harassment by a debt collector by repeated or continuous telephone calls).
Finally, I grant plaintiff leave to file an amended complaint to allege, if she can, sufficient facts to state claims under §§ 1692c(b) and 1692g of the FDCPA. I also grant plaintiff leave to amend to allege, if she can, sufficient facts to support that part of that part of Count I of her Complaint alleging that defendant violated the FDCPA generally and that defendant acted in an otherwise deceptive, unfair and unconscionable manner and failed to comply with the FDCPA.
JURISDICTION
This court has jurisdiction in this matter pursuant to 15 U.S.C. § 1692k(d)
Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to plaintiffs claims allegedly occurred in Strasburg, Lancaster County, Pennsylvania, which is located in this judicial district.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(c), judgment on the pleadings will be granted only if “the movant clearly establishes there are no material issues of fact, and [it] is entitled to judgment as a matter of law.” Sikirica v. Nationwide Insurance Company,
A party may move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed. R.Civ.P. 12(c). The pleadings are closed after an answer is filed, unless a reply to any additional claims asserted in the answer has not been filed. Austin Powder Company v. Knorr Contracting, Inc.,
Ordinarily, in deciding a motion for judgment on the pleadings, the court considers the pleadings and attached exhibits,
However, where, as here, a motion for judgment on the pleadings asserts that plaintiff fails to state a claim upon which relief can be granted, I consider the motion under the same standard as a Rule 12(b)(6) motion even where no motion to dismiss under Rule 12(b)(6) has been made.
To determine the sufficiency of a complaint in these circumstances, the court looks only to the facts alleged in the complaint and the content of any documents to which the complaint makes reference. See, e.g., NIA Learning Center, Inc. v. Empire Fire and Marine Insurance Companies,
A claim may be dismissed under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson,
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief’. Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly,
In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler,
Although “conclusory” or “bare-bones allegations” will not survive a motion to dismiss, Fowler,
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler,
Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. at 211 (quoting Iqbal,
Ultimately, this two-part analysis is “context-specific” and requires the court to draw on “its judicial experience and common sense” to determine if the facts pled in the complaint have “nudged [plaintiffs] claims” over the line from “[merely] conceivable [or possible] to plausible.” Iqbal,
A well-pled complaint may not be dismissed simply because “it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly,
PLAINTIFF’S CLAIMS
In her two-count Complaint, plaintiff Angela Hoover alleges that defendant Monarch Recovery Management, Inc. violated 15 U.S.C. §§ 1692d-1692f of the Fair
In Count II of plaintiffs Complaint, she alleges that defendant violated § 227(b)(1)(B) of the TCPA, which prohibits calling a residential telephone using an artificial prerecorded voice without the consent of the individual being called.
FACTS
Based upon the well-pled averments in plaintiffs Complaint, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.
Plaintiff Angela Hoover is an adult individual who resides in Strasburg, Lancaster County, Pennsylvania. Defendant Monarch Recovery Management, Inc. is a debt collection company which sought to collect an alleged consumer debt from plaintiff. Plaintiffs alleged debt arose from transactions primarily for personal, family, and household purposes.
Defendant contacted plaintiff constantly and continuously on her home telephone from late May, 2010 until early August, 2010, seeking payment for an alleged consumer debt. Plaintiff received both telephone calls and recorded voice messages from defendant. Defendant willfully and knowingly used an “automated telephone dialing system or pre-recorded or artificial voice” when contacting plaintiff on the telephone.
Defendant contacted plaintiff for debt collection purposes, on average, more than ten times per week for approximately eleven weeks. Examples of particular times defendant placed calls to plaintiffs home include Monday, May 24, 2010, at 8:15 a.m., Wednesday, May 26, 2010, at 9:25 a.m., and Friday, May 28, 2010, at 8:24 a.m.
Plaintiff received automated, prerecorded voice messages on her home answering machine, which were able to be heard by members of plaintiffs family, including her minor children. The voice messages contained the following message:
This is a message for Angela Hoover. If this is not you please hang up or disconnect. By continuing to listen to this message you acknowledge you are Angela Hoover. This is Monarch Recovery Management. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please contact me about this matter at 888-220-2577 and refer to file number 98500370. Thank you.17
Plaintiff provided neither defendant, nor the original creditor of the alleged debt, express consent to make telephone calls by an automatic telephone dialing system or by a prerecorded or artificial voice. Defendant knew that it did not have plaintiffs consent prior to placing these calls.
Finally, when plaintiff spoke with a representative of defendant, defendant’s representative asked plaintiff personal questions, including whether she was married and how many dependents she had. Plaintiff further avers that defendant’s representative sought other unidentified personal information.
DISCUSSION
Count I
Section 1692d: Harassment or Abuse
Requesting Personal Information
Section 1692d of the Fair Debt Collection Practices Act provides that “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d.
Initially, plaintiff contends that defendant violated § 1692d generally by repeatedly asking her personal questions, including whether she was married and how many dependents she had.
Violations of § 1692d involve “tactics intended to embarrass, upset, or frighten a debtor.” Donatelli v. Warmbrodt,
Generally, “whether conduct harasses, oppresses, or abuses will be a question for the jury”. Regan v. Law Offices of Edwin A. Abrahamsen & Associates, P.C.,
Plaintiff contends that “the reason [Congress] passed the FDCPA was because of the abundant evidence of ‘invasions of individual privacy,’ stemming from debt collection activity.”
However, nothing in § 1692 suggests that a goal of the FDCPA is to prevent debtors from revealing private information about themselves. Pursuant to § 1692d(3), the privacy issue the FDCPA sought to prevent was debt collectors revealing private information about debtors, not debt collectors encouraging debtors to reveal private information about themselves.
Plaintiff has provided no authority to support her proposition that the act of a debt collector asking for personal information from a consumer constitutes harassment under § 1692d. Moreover, I conclude that plaintiffs claims do not rise to the level of seriousness against which § 1692d is intended to protect.
For example, in Thomas v. LDG Financial Services, LLC, the United States District Court for the Northern District of Georgia granted a motion to dismiss a § 1692d claim when defendant debt collector told plaintiff debtor that the creditor was going to be paid “one way or the other”, yelled that “Georgia is a garnishable state”, and then hung up the phone.
In Unterreiner v. Stoneleigh Recovery Associates, LLC, the United States District Court for the Northern District of Illinois granted defendant debt collector’s motion to dismiss a § 1692d claim where plaintiff debtor alleged that defendant “screamed” at her, told her that she owed “all kinds of money”, and asked: “How could you go and max out a card like that?”.
If defendant asked plaintiff for personal information “repeatedly or continuously”, which is not pled by plaintiff here,
Accordingly, I grant defendant’s motion for judgment on the pleadings to the extent that plaintiff’s Complaint alleges a violation of § 1692d generally and dismiss with prejudice that portion of Count I alleging a § 1692d general claim.
§ 1692d(5): Calling repeatedly or continuously
Next, plaintiff contends that defendant violated subsection 5 of § 1692d, which prohibits “[clausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). Hence, plaintiff must provide sufficient facts to support a plausible claim not only that defendant contacted her by telephone repeatedly or continuously, but also did so with intent to annoy, abuse, or harass her.
In Shand-Pistilli, my colleague Senior United States District Judge Thomas N. O’Neill, Jr. concluded that plaintiff pled sufficient facts to support a reasonable inference that the purpose of defendant’s repeated phone calls was to harass or annoy plaintiff. Id. at *4-5, 2010 U:S.Dist. LEXIS 75056, at *11-12. While unlike in Shand-Pistilli, plaintiff in this case does not aver that she asked defendant to stop contacting her, plaintiff does aver that the calls made to her home telephone were constant and continuous,
Furthermore, the volume of calls in this case, 110 times over an eleven-week period, is significantly higher than other cases in which courts in this judicial district permitted the parties to reach the discovery stage. For example, in Shand-Pistilli, the court denied a defendant’s motion to dismiss a § 1692d(5) claim when plaintiff averred that defendant had made “continuous” calls to plaintiff, without specifying an amount. Id. at *4-5, 2010 U.S.Dist. LEXIS 75056, at *12-13.
In addition, my colleague United States District Judge Gene Pratter denied defendant’s motion to dismiss a § 1692d(5) claim when plaintiff identified nine times when defendant called her in a thirty-day period, and averred that defendant called her other times as well. Carr v. NCO Financial Systems, Inc.,
Plaintiff cites the decision in Krapf v. Nationwide Credit Inc.,
For example in Tucker v. The CBE Group, Inc.,
Defendant cites no instances where courts precluded a case with such a high volume of calls from proceeding to the discovery stage. Rather, Shand-Pistilli and Carr, discussed above, reveal that in
Defendant cites a Western District of Washington case in which the United States District Court found that § 1692d(5) “does not even prevent a collector from calling multiple times in a week, or even in a day.
In Dudley, the court granted defendant’s motion to dismiss plaintiffs § 1692d(5) claim. However, the Dudley case is distinguishable from the instant matter because in Dudley, defendant called plaintiff only four times in one day, and at no other time. On the other hand, in the case before this court, defendant called plaintiff twice per day, each day for eleven weeks.
As noted above, “whether conduct harasses, oppresses, or abuses will be a question for the jury”. Regan,
Section 1692e: False or misleading representations
Section 1692e of the FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. A communication is deceptive for purposes of the FDCPA if “it can be reasonably read to have two or more different meanings, one of which is inaccurate, viewed from the perspective of the least sophisticated consumer.” Reed v. Pinnacle Credit Services, LLC,
Plaintiff contends that defendant violated § 1692e by failing to include the amount of the alleged debt and the identity of the creditor to whom the debt was owed in the voice messages defendant left for plaintiff.
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
15 U.S.C. § 1692g(a)(l) and (2).
Plaintiff argues that there was no written communication from defendant, and that plaintiff did not know who the original creditor was the entire time defendant was attempting to contact her.
Under § 1692e, Congress explicitly requires debt collectors to inform consumers of the fact that they are debt collectors and that any information obtained will be used for that purpose. 15 U.S.C. § 1692e(ll). That Congress did not include other requirements, such as the amount of the debt and the original creditor’s identity, while requiring such information in § 1692g, indicates that Congress did not intend for the omission of such information to constitute- a violation of § 1692e. See Gozlon-Peretz v. United States,
In Gozlorir-Peretz the United States Supreme Court stated that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (quoting Russello v. United States,
In addition to the lack of an explicit requirement in § 1692e and the existence of such a requirement in § 1692g, the conduct alleged by plaintiff would not amount to a violation of § 1692g. Section 1692g does not disallow withholding the amount of the debt and the original creditor’s identity when speaking with the debtor. Rather, § 1692g disallows not sending a subsequent writing containing such information when it is not disclosed in the initial communication. Plaintiff does not allege anywhere in her Complaint that defendant did not communicate to her the amount of the debt or the identity of the original creditor in the initial communication or in a subsequent written communication.
Furthermore, plaintiff fails to cite any authority providing that an omission of the amount of the debt or the identity of the original creditor renders a debt collection call deceptive or misleading in violation of § 1692e. Moreover, my independent research reveals no such authority.
Given an absence of authority consistent with plaintiffs § 1692e claim, I interpret the inclusion of the requirements that the consumer be made aware of the amount of the debt and the original creditor’s identity in § 1692g of the FDCPA, and the lack thereof in § 1692e, to indicate Congress’ intent that the omission of such information in voice messages left for the consumer is not a violation of § 1692e. Therefore, I grant defendant’s motion for judgment on the pleadings to the extent that it claims a violation of § 1692e, and give plaintiff leave to amend that portion of Count I of her Complaint to attempt to state a claim under § 1692g.
Section 1692f: Unfair practices
Section 1692f of the FDCPA provides that “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. “Plaintiff contends that defendant also violated 15 U.S.C. § 1692f.”
Plaintiff contends that the voice messages defendant left for plaintiff were unfair or unconscionable because the messages “were able to be heard by other people in her family, including her minor children.”
Plaintiff is correct in contending that § 1692f “operates as a catchall for conduct that is recognizably unfair, but not explicitly enumerated in other sections of the FDCPA.”
Section 1692c(b) explicitly provides that debt collectors may not communicate to a third party any information related to the collection of a debt “without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post-judgment judicial remedy”. 15 U.S.C. § 1692e(b).
The FDCPA is a strict liability statute, so the plaintiff need not show intent on the defendant’s part. Allen v. LaSalle Bank,
In Zortman v. J.C. Christensen & Associates, Inc., the United States District Court for the District of Minnesota denied defendant’s motion for judgment on the pleadings of a § 1692c(b) claim where defendant left messages related to the collection of a debt on plaintiffs home and cellular phones, and the messages were overheard by plaintiffs children.
Other courts have also found that voice messages regarding the collection of a debt that are heard by third parties could constitute a violation of § 1692c(b). In Gryzbowski v. I.C. System, Inc., the United States District Court for the Middle District of Pennsylvania, quoting the United States Court of Appeals for the Eleventh Circuit, found that the FDCPA does not give a debt collector the right to leave messages on an answering machine.
Also, a debt collector cannot fail to disclose certain information in a voice message in violation of § 1692e(ll), out of fear of disclosing this information to third parties in violation of § 1692c(b).
The United States District Court for the District of New Jersey held in FTC v. Check Enforcement that a plaintiff states a claim under § 1692c(b) when plaintiff alleges that family members and other third parties heard a message left on the home answering machine by a debt collector attempting to collect an alleged consumer debt.
The United States District Court for the District of Florida has held that if a third party listens to a message from a debt collector regarding an alleged consumer debt in the presence of the intended recipient, the debt collector could be in violation
Given the above authority, plaintiff may be able to state a claim under § 1692c(b). That Congress did not include third party disclosure in § 1692f, yet did include it in § 1692c(b), generally means that Congress intended for third party disclosure not to constitute a violation of § 1692f. See Gozlon-Peretz,
Plaintiff fails to cite any authority demonstrating that communicating information to third parties constitutes a violation of § 1692f. My research also reveals no such authority supporting plaintiffs § 1692f claim. Furthermore, a complaint fails to state a claim under § 1692f unless it identifies some misconduct by the debt collector other than that which provides the basis for the plaintiffs claims under other provisions of the FDCPA. Shand-Pistilli,
While plaintiff has not used the third party disclosure to claim a violation of § 1692c(b), as noted above, Congress’ intention in including § 1692f was to make it a catch-all for any conduct that did not violate any other section of the FDCPA. Because I find the conclusion of my colleague Senior Judge O’Neill in Shand-Pistilli persuasive, I conclude that if plaintiff can claim a violation of another section of the FDCPA, she fails to state a claim under § 1692f.
Accordingly, I grant defendant’s motion for judgment on the pleadings with regard to that portion of Count I alleging a violation of § 1692f. However, I grant plaintiff leave to amend her Complaint to attempt to state a claim for violation of § 1692c (b).
Plaintiffs Remaining FDCPA Claims
In her Complaint, plaintiff alleges that defendant violated the FDCPA generally (claim 1) and that defendant acted in an otherwise deceptive, unfair, and unconscionable manner and failed to comply with the FDCPA (claim 6).
In its motion for judgment on the pleadings, defendant does not specifically argue for judgment with respect to claims (1) and (6) of Count I of plaintiffs Complaint. However, defendant does state in its motion that “judgment on the pleadings is warranted because [pjlaintiff fails to offer a single credible fact which would give rise to a viable claim against [defendant] under the FDCPA or under the TCPA.”
Because plaintiff does not allege separate facts for claims (1) and (6) of Count I of her Complaint, it is not clear what plaintiff is alleging when she states that defendant violated the FDCPA generally or that defendant acted in an otherwise deceptive, unfair and unconscionable manner and failed to comply with the FDCPA.
Claim (6) of Count I of plaintiffs Complaint appears to fall under § 1692e, which prohibits debt collectors from employing false, deceptive, or misleading representations, and § 1692f, which prohibits debt collectors from behaving in an unfair or unconscionable manner.
If plaintiff intends to use the same conduct being alleged as a violation of §§ 1692e and 1692f as a violation of another section of the FDCPA, that would run counter to Congress’ intent. See Gozlon-Peretz,
If plaintiff intends to use different conduct to state a claim for a violation of another section of the FDCPA, plaintiff
The lack of clarity in plaintiffs Complaint makes it very difficult to determine whether she has asserted claims upon which relief can be granted. Moreover, because of the lack of clarity, I conclude that defendant has not been provided with sufficient notice of the claims against it.
In appropriate circumstances, the court has the discretion to direct more specific factual allegations from plaintiffs. See Thomas v. Independence Township,
Count II
Telephone Consumer Protection Act
The TCPA prohibits a person or entity within the United States from “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”. 47 U.S.C. § 227(b)(1)(B). There are exceptions to this rule.
Congress delegated to the Federal Communications Commission (“FCC”) the authority to issue rules or orders that exempt certain conduct from the purview of Section (b)(1)(B) of the TCPA. 47 U.S.C. §§ 227(b)(1)(B) and (b)(2)(B).
Congress required in the TCPA that if the exemptions the FCC created were for commercial purposes, the FCC needed to ensure that the calls exempted would not “adversely affect the privacy rights that [the TCPA] is intended to protect”, and would “not include the transmission of any unsolicited advertisement”. 47 U.S.C. §§ 227(b)(2)(B)(ii)(I) and (II).
In 1992 the FCC acted on its authority and published a report that created an exception to Section (b)(1)(B) of the TCPA: a person or entity may call a residential line with an artificial or prerecorded voice without the prior consent of the person being called if the call is “made to any person with whom the caller has an established business relationship at the time the call is made”, or if it is “made for a commercial purpose but does not include or introduce an unsolicited advertisement or constitute a telephone solicitation”. 47 C.F.R. §§ 64.1200(a)(2)(h) and (hi).
In its 1992 report, the FCC also stated that because “all debt collection circumstances involve a prior or existing business relationship”, and “do not transmit an unsolicited advertisement”, it is unnecessary to have an explicit exception solely for debt collection calls. See 7 FCC Rcd. 8752, 8771-8773 (1992).
The FCC reaffirmed this position in 1995 and 2008:
As we stated in the Report and Order, prerecorded debt collection calls are adequately covered by exemptions adopted in our rules. Our rules explicitly exempt calls made either by a party with whom the subscriber has an established business relationship or calls that do not transmit an unsolicited advertisement and are made for a commercial purpose.
The FCC has defined an “established business relationship” as follows:
[A] prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transac*604 tion with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.
47 C.F.R. § 64.1200(f)(5).
Most district courts, as well as the United States Court of Appeals for the Eleventh Circuit, have given deference to the FCC’s categorical statement that all debt collection calls made to residential homes, including erroneous calls made to non-debtors, are exempted from the TCPA, despite the fact that it seems non-debtors do not have an established business relationship with either the defendant or the original creditor for whom the defendant is attempting to collect. See Meadows v. Franklin Collection Service, Inc.,
In contrast, a minority of district courts have concluded that the FCC has not considered non-debtors in terms of the TCPA, and that the exceptions the FCC created do not apply to erroneous calls made to non-debtors.
In Watson v. NCO Group, Inc., my colleague United States District Judge Legróme D. Davis concluded that because the FCC proceeded from the assumption that all debt collection calls involve a prior business relationship, and erroneous calls made to non-debtors involve no such relationship, then the FCC did not consider erroneous debt collection calls in creating its exceptions to the TCPA.
Courts that follow Watson
It is true that non-debtors have no prior business relationship with debt collection agencies. However, I am persuaded by the majority of jurisdictions that have held that all debt collection calls, even calls made to non-debtors, fall under the exemptions the FCC already created, specifically the exception for commercial calls that do not transmit an unsolicited advertisement and do not constitute a telephone solicitation. 47 C.F.R. § 64.1200(a)(2)(iii).
I agree with the United States District Court for the Western District of New York, which stated in Franasiak v. Palisades Collection, LLC that it is up to the FCC to determine whether a non-debtor’s privacy rights have been violated, and that by classifying all debt collection calls as within their exceptions to the TCPA, the FCC has made that decision.
The FCC created exceptions to the TCPA and stated that all debt collection
Even if I were to consider, as did Watson, whether defendant violated plaintiffs privacy rights, plaintiffs TCPA claim would still be dismissed. Once the court in Watson concluded that the FCC did not consider non-debtors in creating its exceptions to the TCPA, the court analyzed itself whether that particular case fell under one of the FCC’s exceptions.
The only exception it could fall under was a commercial call that did not transfer an unsolicited advertisement or constitute a telephone solicitation. 47 C.F.R. § 64.1200(a)(2)(iii). While calls to non-debtors seem to fall under this exception, the court must still consider whether the non-debtor’s privacy rights have been violated. Title 47 U.S.C. § 227(b)(1)(B) ensures that any exceptions the FCC made to the TCPA would not “adversely affect the privacy rights that [the TCPA] is intended to protect”.
The Watson court held that non-debtors have “vastly greater privacy rights” than debtors. Watson,
In Watson, Judge Davis concluded that “[w]hile the FCC has declared that a debt- or’s privacy rights are not adversely affected when he receives debt collection calls ... a non-debtor’s rights are in fact violated when he is subjected to repeated annoying and abusive debt collection calls that he remains powerless to stop.” Id. at 644-45 (emphasis added).
The case at hand is factually distinguishable from Watson. Plaintiff in this case does not allege in her Complaint that she ever attempted to contact defendant to say that she was a non-debtor, or that she ever attempted to get the calls to stop. Even if the court interprets the use of the phrase “alleged debt” throughout the Complaint in the light most favorable to the plaintiff and takes it as true that plaintiff was a non-debtor, unlike in Watson, plaintiff did not remain “powerless to stop” defendant’s calls. Id.
The reason the Watson court ruled against the FCC’s seemingly clear statement that all debt collection calls made to residential telephone lines are exempt from the TCPA is because of the extreme facts giving rise to the invasion of privacy in that case. Though the FCC may have decided that debt collection calls do not constitute invasions of privacy against which the TCPA is intended to protect, the Commission could not have envisioned the extreme facts in Watson.
Because plaintiffs privacy rights here were not violated to the extent that plaintiffs were in Watson, I will defer to the FCC’s position that all debt collection calls fall under its exceptions to the TCPA, and that the debt collection calls made to plaintiff do not constitute an invasion of privacy as a matter of law.
Accordingly, defendant’s motion for judgment on the pleadings with regard to plaintiffs TCPA claim contained in Count II of plaintiffs Complaint is granted and Count II is dismissed with prejudice.
CONCLUSION
For the reasons expressed above, I grant defendant’s Motion for Judgment on
I dismiss plaintiffs claim under § 1692e with prejudice, and grant plaintiff leave to file an amended complaint to attempt to state a claim under § 1692g.
I dismiss plaintiffs claim under § 1692f with prejudice, and grant plaintiff leave to file an amended complaint to attempt to state a claim under § 1692e(b).
I also dismiss that portion of Count I of plaintiffs Complaint alleging that defendant violated the FDCPA generally and that defendant acted in an otherwise deceptive, unfair and unconscionable manner and failed to comply with the FDCPA.
I grant plaintiff leave to file an amended complaint to clarify such claims in Count I of her Complaint.
Finally, I deny defendant’s motion in all other respects. Specifically, I permit plaintiffs § 1692d(5) claim to proceed.
Notes
. In addition to defendant’s motion and plaintiff’s opposition, the court also considered both parties’ briefs in support of their motion and opposition, as well as defendant's reply brief, plaintiff’s sur-reply, plaintiff’s Complaint, and defendant’s answer.
. 15 U.S.C. §§ 1692-1692p.
. 47 U.S.C. § 227.
. Section 1692k(d) provides:
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
15 U.S.C. § 1692k(d).
.In Landsman & Funk PC v. Skinder-Strauss Associates,
. See Fed.R.Civ.P. 10(c).
. Citisteel USA, Inc. v. General Electric Company,
. Chemi SpA v. GlaxoSmithKline,
. Federal Rule of Civil Procedure 12(h)(2) provides that the defense of failure to state a claim upon which relief can be granted may be made by a motion for judgment on the pleadings. Fed.R.Civ.P. 12(h)(2).
. The Supreme Court's Opinion in Ashcroft v. Iqbal,
. Complaint at ¶¶ 41 and 50.
. Complaint at ¶ 41(a)-(f).
. Complaint at ¶ 50.
. Complaint at ¶¶ 6, 7-9, 15 and 16.
. Complaint at ¶¶ 28 and 32.
. Complaint at ¶¶ 15, 17-20 and 27.
. Complaint at ¶1¶ 22 and 24-27 and Exhibits A-E.
. Complaint at ¶¶ 21-27 and Exhibits A-E.
. Complaint at ¶¶ 29, 31 and 32.
. Complaint at ¶ 33.
. Id.
.Plaintiff, Angela Hoover's Brief in Opposition to Defendant, Monarch Recovery Management, Inc's Motion for Judgment on the Pleadings at page 13.
. See also Kelemen v. Professional Collection Systems,
. In her Complaint, plaintiff avers that when she spoke to defendant, defendant asked questions about her marital status, number of dependents, and requested other personal information. Complaint at ¶ 33. However, plaintiff does not aver that these questions were asked "repeatedly or continuously” or allege how many times plaintiff spoke to defendant.
. Complaint at ¶¶ 15, 17, 19, 20 and 27.
. Complaint at ¶ 17.
.Plaintiff, Angela Hoover’s Brief in Opposition to Defendant, Monarch Recovery Management, Inc’s Motion for Judgment on the Pleadings at pages 8 and 9.
. Brief in Support of Motion of Defendant, Monarch Recovery Management, Inc., for Judgment on the Pleadings at page 6.
. Plaintiff, Angela Hoover’s Brief in Opposition to Defendant, Monarch Recovery Management, Inc.’s Motion for Judgment on the Pleadings at page 15.
.Id. at page 16.
. Complaint at ¶ 41 (e).
. Complaint at ¶21; Plaintiff, Angela Hoover's Brief in Opposition to Defendant, Mon
. Plaintiff, Angela Hoover’s Brief in Opposition to Defendant, Monarch Recovery Management, Inc's Motion for Judgment on the Pleadings at page 16.
. Id.
. Complaint at ¶ 41.
. Motion of Defendant, Monarch Recovery Management, Inc., for Judgment on the Pleadings at ¶ 20.
. This court is aware of only one court that has followed Watson for the proposition that the FCC did not consider erroneous debt collection calls in creating its exemptions to the TCPA. See Jenkins v. Allied Interstate, Inc.,
. Rule 15 of the Federal Rules of Civil Procedure make it clear that the court should freely give leave to amend a complaint when amendment is not futile. Fed.R.Civ.P. 15(a)(2). See also Barr v. Diguglielmo,