United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH UNITED STATES DISTRICT JUDGE
Brandon Gause, on behalf of himself and a putative class of
approximately 1,000 other individuals, sues Defendant Medical
Business Consultants, Inc. ("MBC") for alleged
violations of the Florida Consumer Collection Practices Act
("FCCPA"), Fla. Stat. §§ 559.55, et
seq., and the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. §§
1692 et seq. (Doc. 1). He also seeks declaratory and
injunctive relief pursuant to the Declaratory Judgment Act,
28 U.S.C. §§ 2201, et seq. Id. MBC moves
to dismiss or, alternatively, for judgment on the pleadings.
(Doc. 23). Gause opposes. (Doc. 27). The Court will grant in
part and deny in part the motion.
is a natural person and a Florida resident. (Doc. 1 at
¶10). MBC is a Florida corporation that provides debt
collection services to physicians and other medical service
providers in Florida. Id. at ¶¶ 2, 11.
January 3, 2018, MBC sent Gause a one-page collection letter
(the "Letter") in an attempt to collect a $1,610.55
debt Gause incurred after receiving personal medical services
from Florida Cardiology Associates. (Doc. 1-1). The Letter is
from MBC's "Settlement Division" and is
addressed to Gause at a Port Richey, Florida address.
Id. The Letter reads:
We have been retained by [Florida Cardiology Associates] to
settle this account. Please send payment in full in the
If you feel that this is not a valid debt CONTACT US
IMMEDIATELY AT (***) ******* if you fail to contact us we
will have no choice but to assume that this is a VALID and
Unless you notify this office within 30 days after receiving
this notice that you dispute the validity of this debt or any
portion thereof, this office will assume this debt is valid.
If you notify this office in writing within 30 days from
receiving this notice, this office will: obtain verification
of the debt or obtain a copy of a judgment and mail you a
copy of such judgment or verification. If you request this
office in writing within 30 days after receiving this notice,
this office will provide you the name and address of the
original creditor, if different from the current creditor.
Id. (capitalization in original, redaction added).
The Letter is signed by "Your Representative, LISA
SMITH" and lists the same telephone number provided in
the body of the Letter. Id, (capitalization in
original). In the bottom left corner of the Letter is a space
for Gause to provide his debit or credit card payment
information. Id. In the bottom right corner of the
Letter are two text boxes stacked atop one another.
Id. The first text box reads:
We report to multiple Credit Bureaus biweekly. This
delinquent balance could prevent you from obtaining
credit when you need it in the future.
Id. (holding in original). The second reads:
What to Do When You Receive a Collection
Don't Get Angry
Let Us Help
Your account was referred to us by someone that
values your business.
Our staff is experienced in credit and collections.
They are ready to assist you if you will let them.
This is not intended to be legal
Id. (holding and italics in original). The Letter
concludes, "THIS IS A COMMUNICATION FROM A DEBT
COLLECTOR" Id. (capitalization and
holding in original).
complaint alleges MBC sent nearly identical collection
letters to approximately 1,000 other individuals in the state
of Florida during the putative class period. (Doc. 1 at
initiated this litigation by filing a three-count, class
action complaint with the Court on July 18, 2018. (Doc. 1).
Count I alleges MBC violated section 559.72 of the FCCPA
because MBC, through the Letter, asserted the existence of a
legal right it knew it didn't have by (i) stating it
would assume the debt was "valid" and
"just" if Gause didn't contact MBC
"immediately" and (ii) implicitly threatening to
report the debt to multiple credit bureaus bi-weekly.
Id. at ¶¶ 37-46. Count II alleges MBC
violated the FDCPA in three distinct respects:
first, that MBC violated section 1692g because the
Letter's demand for immediate action and implicit threat
to report the debt overshadowed Gause's statutory right
to dispute and verify the debt within thirty days;
second, that MBC violated section l692e because the
Letter's implicit threats to report the debt were false;
and third, that, alternatively, MBC violated section
1692f because the Letter, as a whole, amounted to an unfair
and unconscionable means to collect a debt. Id. at
¶¶ 47-55. Count III alleges Gause is entitled to
(i) a declaratory judgment declaring that MBC's conduct
violated the FCCPA and the FDCPA and (ii) an injunction
enjoining MBC from collecting or attempting to collect debts
using communications like those contained in the Letter.
Id. at ¶¶ 56-66.
answered the complaint on August 13, 2018. (Doc. 9). MBC
admits it's engaged in the business of collecting debts
for physicians and other medical service providers in
Florida, and that it's a "debt collector" as
that term is defined by both the FCCPA and the FDCPA.
Id. at ¶l 1. MBC also admits it sent Gause the
Letter in an attempt to collect the debt he owed to Florida
Cardiology Associates, and that the debt qualifies as a
"consumer debt" under both the FCCPA and the FDCPA.
Id at ¶¶26, 28. MBC denies the remainder
of Gause's allegations and asserts a single affirmative
defense (failure to state a claim). See generally
filed the instant motion on April 19, 2019. (Doc. 23). MBC
moves pursuant to Rule 12(b)(1), Fed. R. Civ. P., for the
entry of an order dismissing the action for lack of subject
matter jurisdiction. Id. at 4-7. As grounds, MBC
argues Gause cannot establish he suffered a "concrete
injury" as required by the Supreme Court in Spokeo,
Inc. v. Robins, 136 S. Ct. 1540 (2016), and that Gause
therefore lacks standing to sue. Id. Alternatively,
MBC moves pursuant to Rule 12(c), Fed. R. Civ. P., for the
entry of an order granting judgment on the pleadings in
MBC's favor and against Gause on each of his claims.
Id. at 7-16. As grounds, MBC argues the complaint,
as a matter of law, fails to plausibly allege violations of
either the FCCPA or the FDCPA. Id. at 7-15. And
because the complaint fails to plausibly allege violations of
either statute, says MBC, there's likewise no legal basis
for the entry of a declaratory judgment in Gause's favor.
Id. at 15-16.
responded in opposition to the motion on June 3, 2019. (Doc.
27). With respect to standing, Gause contends MBC's
violations of the FCCPA and the FDCPA did, in fact, result in
"concrete" injuries to Gause because the violations
posed "a real risk of harm" to Gause's
"statutorily recognized interests." Id. at
7-12. With respect to MBC's alternative request for
judgment on the pleadings, Gause contends the complaint
plausibly alleges violations of the FCCPA and the FDCPA, as
well as Gause's entitlement to the entry of a declaratory
judgment in his favor and against MBC. Id. at 12-20.
motion is fully briefed and ripe for the Court's
the Court will provide pertinent background on the FCCPA and
the FDCPA. Next, the Court will address whether Gause has
standing to sue. Finally, the Court will address whether MBC
is entitled to judgment on the pleadings.
result of increased abuse by consumer debt collectors and the
lack of any meaningful common law tort remedies, in the
late-1960s and early-1970s, state legislatures began to
recognize the need for consumer protection legislation in the
area of debt collection. And by the late-1970s, most states
had enacted consumer protection laws aimed at preventing
abusive debt collection practices. See H.R. Rep. No.
95-131 at 3 (1977) (noting that thirty-seven states and the
District of Columbia had laws regulating debt collectors.)
For its part, Florida enacted the FCCPA in 1972 "as a
means of regulating the activities of consumer collection
agencies within the state." LeBlane v. Unifund CCR
Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (per
curiam). The purpose of the FCCPA "is to deter bad
collection practices," and "to protect Florida
consumers from illegal [and] unscrupulous practices of debt
collectors and other persons." Brook v. Chase Bank
USA, N.A., 566 F. App'x 787, 790 (11th Cir. 2014)
(per curiam) (citation omitted). See also Harris v.
Beneficial Fin. Co. of Jacksonville, 338 So.2d 196,
200-01 (Fla. 1976) (describing the FCCPA as "a laudable
legislative attempt to curb what the Legislature evidently
found to be a series of abuses in the area of debtor-creditor
relations"). Relevant here, section 559.72 of the FCCPA
prohibits a debt collector, in attempting to collect a debt,
from "asserting the existence of [a] legal right when
such person knows that the right does not exist." Fla.
Stat. § 559.72(9).
abusive debt collection wasn't just a state issue. In the
late-1970s, Congress began to recognize abusive debt
collection as "a widespread and serious national
problem" as well. S. Rep. No. 95-382, at 2 (1977),
reprinted in 1977 U.S.C.C.A.N 1695, 1696. Congress
There is abundant evidence of the use of abusive, deceptive,
and unfair debt collection practices by many debt collectors.
Abusive debt collection practices contribute to the number of
personal bankruptcies, to marital instability, to the loss of
jobs, and to invasions of individual privacy.
Existing laws and procedures for redressing these injuries
are inadequate to protect consumers.
15 U.S.C. § 1692(a)-(b). As a result, Congress enacted
the FDCPA in 1978. Like the FCCPA and other states' laws
regulating consumer debt collection practices, the purpose of
the FDCPA "is to protect consumers from a host of
unfair, harassing, and deceptive debt collection
practices," S. Rep. No. 95-382, at 1 (1977),
reprinted in 1977 U.S.C.C.A.N. 1695, 1696, and
"to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not
competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection
abuses," 15 U.S.C. § 1692(e). Relevant here,
sections 1692e and 1692f of the FDCPA, respectively, prohibit
debt collectors from using "any false, deceptive, or
misleading representation or means in connection with the
collection of any debt," as well as the use of any
"unfair or unconscionable" means of collection. 15
U.S.C. §§ l692e, I692f.
addition, the FDCPA requires debt collectors to inform
consumers in writing of their statutory right to dispute and
verify the debt. This written notice is commonly referred to
as a "validation notice." Section l692g of the
FDCPA prescribes the mandatory contents of the validation
notice. Specifically, section l692g(a) requires that
[w]ithin five days after the initial communication with a
consumer in connection with the collection of any debt, a
debt collector shall, unless the following information is
contained in the initial communication or the consumer has
paid the debt, send the consumer a written notice containing:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days
after receipt of the notice, disputes the validity of the
debt, or any portion thereof, the debt will be assumed to be
valid by the debt collector;
(4) a statement that if the consumer notifies the debt
collector in writing within the thirty-day period that the
debt, or any portion thereof, is disputed, the debt collector
will obtain verification of the debt or a copy of a judgment
against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt
(5) a statement that, upon the consumer's written request
within the thirty-day period, the debt collector will provide
the consumer with the name and address of the original
creditor, if different from the current creditor.
15 U.S.C. § l692g(a)(1)-(5). A debt collector violates
the FDCPA where it undertakes "any collection
activities" or "communication" during the
thirty-day period that "overshadow or [are] inconsistent
with the disclosure of the consumer's right to dispute
the debt or request the name and address of the original
creditor." 15 U.S.C. § l692g(b).
accordance with their stated purpose, both the FCCPA and the
FDCPA permit individuals to sue debt collectors who fail to
comply with the statutes' provisions. See Fla.
Stat. § 559.77(2) ("A debtor may bring a civil
action against a person violating the provisions of [section
559.72]."); 15 U.S.C. § l692k(a) (permitting
institution of a civil action for damages against "any
debt collector who fails to comply with any provision of this
subchapter"). And although both statutes are remedial in
nature and prohibit similar, abusive debt collection
practices, the FDCPA doesn't preempt the FCCPA, so long
as the FCCPA's provisions aren't inconsistent with
those of the FDCPA. See 15 U.S.C. § l692n.
Plaintiffs may therefore be entitled to recover under both
the FCCPA and the FDCPA in a single action for the same
conduct. Available remedies under the FCCPA and the FDCPA
include actual damages, statutory damages up to $1,000
subject to the Court's discretion, and reasonable costs
and attorney's fees. See Fla. Stat. § 559.77(2);
15 U.S.C. § l692k(a)(1)-(3). The FCCPA also provides for
the recovery of punitive damages. See Fla. Stat.
that background in mind, the Court turns to the merits of
moves to dismiss the complaint in its entirety on grounds
that Gause lacks standing to sue. "[A] dismissal for
lack of standing has the same effect as a dismissal for lack
of subject matter jurisdiction under Rule 12(b)(1)."
Stalley ex rel United States v. Orlando Reg'l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.
2008) (per curiam). Challenges to a district court's
subject matter jurisdiction come in two forms: "facial
attacks" and "factual attacks." Morrison
v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003).
"Facial attacks challenge subject matter jurisdiction
based on the allegations in the complaint, and the district
court takes the allegations as true in deciding whether to
grant the motion." Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990) (per curiam). Factual attacks, on
the other hand, "challenge subject matter jurisdiction
in fact, irrespective of the pleadings." Id.
styles its motion to dismiss as a "factual attack,"
as the motion relies on Cause's responses to certain of
MBC's discovery interrogatories (i.e., matters
outside the four corners of the complaint). (Doc. 23 at 4).
But the distinction is of no moment, here, as a district
court resolves the question of its subject matter
jurisdiction independent of any disputed issues of fact, so
long as the inquiry doesn't implicate the merits of the
plaintiffs claim. Morrison, 323 F.3d at 924-25. And
because "standing in no way depends on the merits of [a]
plaintiffs contention that particular conduct is
illegal," Worth v. Seldin, 422 U.S. 490, 500
(1975), the Court is free to independently consider
Gause's allegations and to weigh the evidence in order to
satisfy itself of its power to hear the case, see
Morrison, 323 F.3d at 925 (citation omitted). See
also Butler v. Morgan, 562 F. App'x 832, 834 (11th
Cir. 2014) (per curiam) ("A district court may dismiss a
complaint for lack of subject-matter jurisdiction based on:
(1) the complaint alone; (2) the complaint plus undisputed
facts evidenced in the record; or (3) the complaint plus
undisputed facts plus the court's resolution of disputed
facts.") (citation omitted).
Constitution limits the power of the federal judiciary to
"Cases" and "Controversies." U.S. Const,
art. III, § 2. To satisfy the case-or-controversy
requirement, a plaintiff must have standing to sue.
Spokeo, 136 S. Ct. at 1547. The standing doctrine
"developed in our case law to ensure that federal courts
do not exceed their authority as it has been traditionally
understood." Id. The doctrine "limits the
category of litigants empowered to maintain a lawsuit in
federal court to seek redress for a legal wrong."
plaintiff must demonstrate standing for each claim he seeks
to press." Davis v. Fed Election Comm'n 554
U.S. 724, 734 (2008). And "[i]t is well-settled that
'if none of the named plaintiffs purporting to represent
a class establishes the requisite of a case or controversy
with the defendants, none may seek relief on behalf of
himself or any other member of the class.'"
A&M Gerber Chiropractic LLC v. GEICO Gen. Ins.
Co., 925 F.3d 1205, 1211 (11th Cir. 2019) (quoting
O'Shea v. Littleton, 414 U.S. 488,494(1974)).
Thus, as the named plaintiff and putative class
representative, Gause must demonstrate standing for each of
consists of three elements: "[t]he plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision." Spokeo, 136 S. Ct. at 1547 (citation
omitted). "Where, as here, a case is at the pleading
stage, the plaintiff must. . . clearly allege facts
demonstrating each element." Id. (internal
quotations and citation omitted). Where any element is
missing, the plaintiff lacks standing to sue, and the
district court, as a result, lacks ...