United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS.
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendant Account
Services' (“Defendant”) Motion to Dismiss,
ECF No.  (the “Motion”), Plaintiff Nathalie
Jimenez's (“Plaintiff”) Second Amended
Complaint, ECF No. . Plaintiff timely filed a Response,
ECF No. , and Defendant timely filed a reply, ECF No.
. For the reasons set forth below, Defendant's Motion
is granted in part and denied in part.
Court set forth the facts of this case in its prior Order,
ECF No. , granting in part and denying in part
Defendant's first Motion to Dismiss, ECF No. . Given
their pertinence to the Court's instant analysis, those
facts bear repeating.
Plaintiff's First Amended Complaint, ECF No. ,
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.  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. Id. at ¶¶ 11-12 (citing
ECF No.  at Exhs. A-B). Plaintiff sent dispute letters to
each of the CRAs a second time on April 5, 2016. Id.
at ¶ 13 (citing ECF No.  at Exh. C).
April 12, 2016, Plaintiff sent a second debt validation
letter to Texas MedClinic. Id. at ¶ 14 (citing
ECF No.  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. 
at Exh. E). Defendant had yet to “validate the
debt” at this point. Id.
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.  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.  at Exh. H).
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. ; see also ECF No. .
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. ; ECF No. . On September 16, 2016, Defendant
filed its first Motion to Dismiss, ECF No. , 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
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. ; see also ECF
No. . Defendant now moves to dismiss all counts of
Plaintiff's Second Amended Complaint pursuant to Rule
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).
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)).
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