United States District Court, S.D. Florida
C. HUCK UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon American Express Company and
American Express Educational Assurance Company's Motion
to Dismiss ... ("Motion") [ECF No. 26], filed
February 22, 2017. Plaintiff Rene Mesa ("Mesa")
filed a Motion in Opposition 12(B)(6) . ..
("Response") [ECF No. 29] on March 15, 2017.
Defendants American Express Company ("Amex") and
American Express Educational Assurance Company
("AEEAC") filed their Reply Memorandum . . .
("Reply") [ECF No. 35] on March 28, 2017. The Court
has carefully considered the parties' submissions, the
record, and applicable law.
filed his Amended Complaint on February 7, 2017 [ECF No. 22],
in which he alleges eight separate violations: Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C.
§ 1692d (Count I); FDCPA, 15 U.S.C. § 1692e(2)
(Count II); FDCPA, 15 U.S.C. § 1692e(8) (Count III);
FDCPA, 15 U.S.C. § 1692e(10) (Count IV); FDCPA, 15 U.S.C.
§ 1692e(ll) (Count V); Florida Consumer Collection
Practices Act ("FCCPA"), Fla. Stat. § 559
(Count VI); Telephone Consumer Protection Act
("TCPA"), 47 U.S.C. § 227 (Count VII); and
Negligent Hiring and Supervision (Count VIII). Counts VI,
VII, and VIII are the only allegations against Amex and
alleges that he received calls to his cellular telephone
"several times within the last four years, by use of an
automated telephone dialing system." (Am. Compl. ¶
31). The caller represented that the call was on behalf of
Defendant Transworld Systems Inc. ("Transworld"),
but "failed to provide meaningful identification as debt
collector at the inception of the calls." (Id.
¶ 32). "Plaintiff received several telephone calls
from different telephone numbers." (Id.).
Plaintiff received these calls "after numerous requests
to cease and desist" and after settling a federal
lawsuit against Defendant NCO Financial Systems in case
13-cv-23131 -UU. (Id. ¶ 33). The final call
Mesa received from Transworld was on or about October 22,
2015. (Id. ¶ 34).
Mesa returned the telephone calls, Transworld did not advise
him that it was attempting to collect a debt nor did
Transworld identify itself as a debt collector. (Id.
¶ 35). Although Mesa did not consent to being recorded
during the phone calls, the representative indicated that she
could not turn off the recorder. (Id. ¶ 36).
Only after obtaining Mesa's private information did the
representative indicate that she was a debt collector.
(Id.). The Transworld representative refused to
identify herself as a debt collector until after Mesa
provided his identification information. (Id. ¶
37). Mesa subsequently called Transworld various times, and a
different representative informed Mesa that he owed $10,
945.85. (Id. ¶ 39). The representative told
Mesa that if he made late payments, "those late payments
would not appear on the credit report." (Id.).
However, "[t]he late payments did appear on Plaintiffs
credit report." (Id.). Plaintiff
"expressed his frustration" to a supervisor
regarding late payments on his credit report "that never
took place." (Id. ¶ 40).
Transworld supervisor informed Mesa that the original lender
for the loan was AEEAC and that "further inquiry
regarding the false late payments that appeared in [the]
credit report should be taken up with them."
(Id. ¶ 41). Plaintiff sent Transworld a notice
of dispute regarding the "false late payments" on
his credit report, and Transworld "failed to list the
debts as disputed." (Id.). Mesa alleges that
"[b]y reporting misleading information regarding the
nature and/or status of said alleged debt with respect to
such matters as the identity of the original creditor, the
relevant dates and ages of said alleged debt, and other
matters which these Defendants knew or should have known
would mislead, " Defendants violated the law.
(Id.). The late payment entries were removed from
the credit report after several months. (Id.).
credit report provided that he had "missed 14 payments
within the last four (4) years, " when in fact
"[t]hese were defaulted student loans and no payment was
ever made on them." (Id. ¶ 43). The
Defendants AEEAC, Amex, and Transworld "knowingly,
willfully[, ] and with malice listed seventy-two (72) false
and derogatory entries in Plaintiffs credit with Equifax,
Experian[, ] and Transunion ... in order to coerce
payment." (Id.). Mesa did not consent to
receive calls from Transworld. (Id. ¶ 44).
AEEAC, Amex, and Transworld "engaged in a knowingly,
willfully[, ] and with malice attempt to collect a debt by
providing knowing false and deceptive credit information to
the Credit Bureaus in an attempt to collect a debt."
(Id. ¶ 45). Mesa's telephone number is
unlisted, he does not do business with Transworld, and he
never consented to Transworld's use of his private
financial information and telephone number. (See Id.
¶¶44, 46- 47).
alleges that AEEAC "controls, directs, manages,
oversees, supervises, profits from[, ] and engages in debt
collection directly and indirectly through" Transworld
and is "responsible to the acts of their agents under
agency." (See Id. ¶ 48). As such, AEEAC
"is required to make certain that their employees,
agents[, ] and servants engage in collection efforts that are
compliant with the TCPA, FDCPA[, ] and the FCCPA."
(See id). Likewise, Mesa alleges that Amex
"controls, directs, manages, oversees, supervises,
profits from[, ] and engages in debt collection directly and
indirectly through" Transworld and is "responsible
to the acts of their agents under agency." (See
Id. ¶ 49).
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.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
BellAtl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Although this pleading standard "does not
require 'detailed factual allegations, '... it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Id.
(alteration added) (quoting Twombly, 550 U.S. at
555). Pleadings must contain "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (citation omitted). Indeed, "only a complaint
that states a plausible claim for relief survives a motion to
dismiss." Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556). To meet this
"plausibility standard, " a plaintiff must
"plead[ ] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678 (citing
Twombly, 550 U.S. at 556).
reviewing a motion to dismiss, a court must construe the
complaint in the light most favorable to the plaintiff and
take the factual allegations therein as true. See Brooks
v. Blue Cross & Blue Shield of Fla, Inc., 116 F.3d
1364, 1369 (11th Cir. 1997). However, pleadings that
"are no more than conclusions are not entitled to the
assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Iqbal, 556 U.S. at 678.
contends that Amex and AEEAC are legally responsible for
telephone calls that Transworld allegedly made to him. (Am.
Compl. ¶¶ 31-41, 48-9). He alleges that AEEAC and
Amex control, direct, manage, oversee, supervise, profit
from, and engage in debt collection directly and indirectly
through their agent Transworld. (See Id.
¶¶ 48-49). Defendants AAEAC and Amex argue that the
claims against them should be dismissed "because there
are no well-pleaded facts supporting the alleged existence of
their agency relationship with" Transworld. (Mot. 5).
Rather, Defendants maintain that Mesa's "conclusory
agency allegations do ...