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Jimenez v. Account Services

United States District Court, S.D. Florida

February 1, 2017

NATHALIE JIMENEZ, Plaintiff,
v.
ACCOUNT SERVICES, Defendant.

          ORDER ON MOTION TO DISMISS.

          BETH BLOOM UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on Defendant Account Services' (“Defendant”) Motion to Dismiss, ECF No. [35] (the “Motion”), Plaintiff Nathalie Jimenez's (“Plaintiff”) Second Amended Complaint, ECF No. [27]. Plaintiff timely filed a Response, ECF No. [36], and Defendant timely filed a reply, ECF No. [37]. For the reasons set forth below, Defendant's Motion is granted in part and denied in part.

         I. BACKGROUND

         The Court set forth the facts of this case in its prior Order, ECF No. [26], granting in part and denying in part Defendant's first Motion to Dismiss, ECF No. [12]. Given their pertinence to the Court's instant analysis, those facts bear repeating.

         Like Plaintiff's First Amended Complaint, ECF No. [23], Plaintiff's Second Amended Complaint alleges that Plaintiff ordered credit reports from three Credit Reporting Agencies (“CRAs”) on or about January 14, 2016, and that each credit report revealed that Defendant, with whom Plaintiff had no prior relationship, had reported negative information against her - namely, a debt in the amount of $123.45. ECF No. [27] at ¶ 10. On January 19, 2016, Plaintiff sent a “debt validation letter” to the entity to which the debt was purportedly owed - Texas MedClinic - and “dispute letters” to each of the CRAs from which she had received a credit report.[1] Id. at ¶¶ 11-12 (citing ECF No. [10] at Exhs. A-B).[2] Plaintiff sent dispute letters to each of the CRAs a second time on April 5, 2016. Id. at ¶ 13 (citing ECF No. [10] at Exh. C).

         On April 12, 2016, Plaintiff sent a second debt validation letter to Texas MedClinic. Id. at ¶ 14 (citing ECF No. [10] at Exh. D). On April 25, 2016, Plaintiff received a letter from Defendant bearing Plaintiff's name, an account number, a balance in the amount of $123.45, and a notice that the letter was “an attempt to collect a debt.” Id. at ¶ 15 (citing ECF No. [10] at Exh. E). Defendant had yet to “validate the debt” at this point. Id.

         On May 10, 2016, Plaintiff sent a third debt validation letter to Texas MedClinic, and, on May 12, 2016, Plaintiff sent a “Notice of Pending Lawsuit” to Texas MedClinic in “an effort to mitigate damages and settle all claims prior to litigation.” Id. at ¶¶ 16-17 (citing ECF No. [10] at Exhs. F-G). On May 28, 2016, Plaintiff received a second letter from Defendant bearing Plaintiff's name, an account number, a balance in the amount of $123.45, and a notice that the letter was “an attempt to collect a debt.” Id. at ¶ 18 (citing ECF No. [10] at Exh. H).

         Based on these allegations, Plaintiff, proceeding pro se, filed suit against Defendant on August 16, 2016, asserting six counts, including violations of the Fair Debt Collection Practices Act (“FDCPA”) (Counts I-II), violations of the Florida Consumer Collection Practices Act (“FCCPA”) (Counts III-IV), and violations of the Fair Credit Reporting Act (“FCRA”) (Counts V-VI). See ECF No. [10]; see also ECF No. [23]. Plaintiff's First Amended Complaint sought “$1, 000 statutory damages, actual damages, filing fees and cost [sic]” as to each of Counts I-V, and actual damages, filing fees and costs, and punitive damages as to Count VI. ECF No. [10]; ECF No. [23]. On September 16, 2016, Defendant filed its first Motion to Dismiss, ECF No. [12], seeking dismissal of Plaintiff's plea for statutory damages with respect to Counts I-IV of the First Amended Complaint to the extent that Plaintiff was seeking statutory damages of $1, 000 per violation of the FDCPA and FCCA, as well as dismissal of Counts II and VI of the First Amended Complaint. The Court granted Defendant's first Motion to Dismiss in part, ordering that, with respect to damages, Plaintiff could not recover in excess of $1, 000 for any and all violations of the FDCPA or in excess of $1, 000 for any and all violations of the FCCPA, and dismissing Count VI without prejudice. ECF No. [26].

         Plaintiff thereafter filed a Second Amended Complaint on November 7, 2016, asserting the same two violations of the FDCPA under one Count (Count I), the same two violations of the FCCPA also under one count (Count II), and only a single violation of the FCRA (Count III). ECF No. [27]; see also ECF No. [10]. Defendant now moves to dismiss all counts of Plaintiff's Second Amended Complaint pursuant to Rule 12(b)(6).

         II. LEGAL STANDARD

         A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy the Rule 8 pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). While a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized that “[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570); see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).

         When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While the court is required to accept as true all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

         “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, “this leniency does not give a court license to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Inv., Inc. v. Cty of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citations omitted).

         III. ...


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