United States District Court, M.D. Florida, Tampa Division
ORDER GRANTING “MOTION TO DISMISS OF THE
DEFENDANT PREFERRED COLLECTION AND MANAGEMENT SERVICES, INC.,
PURSUANT TO RULE 12(B)(1), (6) OF THE FEDERAL RULES OF CIVIL
BARBER, UNITED STATES DISTRICT JUDGE
matter comes to the Court on the “Motion to Dismiss of
the Defendant Preferred Collection and Management Services,
Inc., Pursuant to Rule 12(b)(1), (6) of the Federal Rules of
Civil Procedure” (Doc. # 6), filed by counsel on May
10, 2019. On May 31, 2019, Plaintiff Richard Hunstein filed a
response in opposition to the motion to dismiss. (Doc. # 12).
On October 2, 2019, the Court held a hearing on this matter.
(Doc. # 19). After reviewing the motion, response, legal
arguments, court file, and record, the Court finds as
July 6, 2018, Hunstein's son was treated at Johns Hopkins
All Children's Hospital. The hospital later claimed that
Hunstein incurred a medical debt of $2, 449.93 for charges
not covered by insurance. Subsequently, the hospital
transferred the debt to Preferred for collection. Preferred
sent a communication to a third-party mail house, CompuMail,
to prepare and mail a collection letter on its behalf.
asserts that in this communication, Preferred disclosed to
the mail house: (a) Hunstein's status as a debtor; (b)
the fact that Hunstein allegedly owed $2, 449.23 to Johns
Hopkins All Children's Hospital; (c) the fact that the
debt concerned his son's medical treatment; (d) his
son's name; and (e) other highly personal pieces of
information. CompuMail then populated some or all of this
information into a template, printed, and mailed a debt
collection letter from California to Hunstein. Hunstein
contends that because of Preferred's communication to
CompuMail, information about himself and his son - including
their names, medical issues, treatment dates, the amount
owed, and their home address - are all within the possession
of an unauthorized third-party.
instant action, Hunstein claims that Preferred violated the
Fair Debt Collection Practices Act
(“FDCPA”) and the Florida Consumer Collection
Practices Act (“FCCPA”) by disclosing information
about Hunstein to a third party “mail house.”
Hunstein seeks statutory damages, actual damages, and
Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim
showing the [plaintiff] is entitled to relief.”
Fed.R.Civ.P. 8(a). “Although Rule 8(a) does not require
‘detailed factual allegations,' it does require
‘more than labels and conclusions'; a
‘formulaic recitation of the cause of action will not
do.'” Young v. Lexington Ins. Co., No.
18-62468, 2018 WL 7572240, at *1 (S.D. Fla. Dec. 6, 2018),
report and recommendation adopted, No. 18-62468-CIV,
2019 WL 1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In order to
survive a motion to dismiss, factual allegations must be
sufficient “to state a claim for relief that is
plausible on its face.” Twombly, 550 U.S. at
555. On a motion to dismiss for lack of subject matter
jurisdiction pursuant to rule 12(b)(1) based upon a facial
challenge to a complaint, a plaintiff possesses safeguards
similar to those retained when a rule 12(b)(6) motion to
dismiss for failure to state a claim is raised. See
McElmurray v. Consol. Gov't of Augusta-Richmond
Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).
deciding a Rule 12(b)(6) motion, review is generally limited
to the four corners of the complaint. Rickman v.
Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D. Fla.
1995). Furthermore, when reviewing a complaint for facial
sufficiency, a court “must accept [a] [p]laintiff's
well pleaded facts as true, and construe the [c]omplaint in
the light most favorable to the [p]laintiff. Id.
(citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). If there are "enough fact[s] to raise a
reasonable expectation that discovery will reveal
evidence" to support the claim, there are
"plausible" grounds for recovery, and a motion to
dismiss should be denied. Twombly, 550 U.S. at 556.
enacted the FDCPA in 1977 in order to protect consumers from
unfair debt collection practices. Acosta v.
Campbell, 309 Fed.Appx. 315, 320 (11th Cir. 2009). Under
the FDCPA, “[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. In order
to state a claim for relief under the FDCPA, a plaintiff must
plausibly allege: (1) the defendant is a debt collector; (2)
the challenged conduct is related to debt collection; and (3)
the defendant has engaged in an act or omission prohibited by
the FDCPA. See Fuller v. Becker & Poliakoff,
P.A., 192 F.Supp.2d 1361, 1366 (M.D. Fla. 2002).
record reflects - and Preferred does not contest - that
Preferred is a debt collector. Furthermore, Preferred
concedes that the well-pleaded facts allege conduct that is
related to debt collection. However, Preferred argues that
Hunstein has not and cannot sufficiently allege that the
communication with the mail house violated §1692c(b)
because the communication does not qualify as a communication
“in connection with the collection of a debt.”
The Court agrees.
Except as provided in section 804 [15 USCS § 1692b],
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 postjudgment judicial remedy, a debt collector
may not communicate, in connection with the
collection of any debt, with any person other
than the consumer, his attorney, a consumer reporting agency