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Hunstein v. Preferred Collection and Management Services, Inc.

United States District Court, M.D. Florida, Tampa Division

October 29, 2019

RICHARD HUNSTEIN, Plaintiff,
v.
PREFERRED COLLECTION AND MANAGEMENT SERVICES, INC., Defendant.

          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 PROCEDURE”

          TOM BARBER, UNITED STATES DISTRICT JUDGE

         This 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 follows:

         Background [1]

         Around 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.

         Hunstein 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.

         In the instant action, Hunstein claims that Preferred violated the Fair Debt Collection Practices Act (“FDCPA”)[2] and the Florida Consumer Collection Practices Act (“FCCPA”)[3] by disclosing information about Hunstein to a third party “mail house.” Hunstein seeks statutory damages, actual damages, and attorneys' fees.

         Legal Standard

         Federal 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).

         When 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.

         Analysis

         Congress 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).

         The 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.

         Section 1692c(b) provides:

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 ...

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