Opinion
CIVIL NO. CCB-09-800.
May 26, 2009
MEMORANDUM
Now pending before the court is a motion to dismiss filed by one of the defendants in this case, Cavalry Portfolio Services, LLC ("Cavalry"), against the plaintiff, Tanya M. Keller ("Keller"). Keller alleges that Cavalry, a collection agency, violated federal and state law in attempting to collect a debt that Keller never owed. The issues have been fully briefed and no hearing is necessary. For the following reasons, the motion to dismiss will be denied as to all but one conceded count.
BACKGROUND
Because the court is considering a motion to dismiss filed by one of several defendants, the factual background of the case is taken entirely from Keller's complaint and focuses on the facts relevant to that defendant.
Cavalry, the defendant, is licensed in Maryland as a collection agency. Beginning in or around March 2004, Cavalry attempted to collect a debt from Keller involving a Sprint telephone account by reporting the account as $1553 past due on Keller's credit reports. Keller has never owned a Sprint phone and was not responsible for the account in question. By 2005, Cavalry representatives were calling Keller's mother two to three times per day in the early morning, at night, and on weekends, stating that they knew she was Keller's mother and threatening to seize Keller's assets. Keller's mother received approximately 100 such calls.
Cavalry also communicated directly with Keller. On September 16 and December 24, 2007, Cavalry sent Keller collection letters informing her of the outstanding balance on the Sprint account and offering her discounted amounts to pay off the debt. In September 2007, Cavalry representatives began calling Keller at her unpublished home number. During the first call, Keller told the representative that the Sprint account was not hers and that she never had a Sprint phone, and she requested that Cavalry not call her again. The caller threatened to keep calling, and, through December 2007, Cavalry placed approximately 25 unanswered calls to Keller's unpublished home number, never leaving messages on Keller's home answering machine.
On February 20 and April 14, 2008, Calvary sent Keller collection letters offering her different discounted amounts to settle the debt. At around the time the April letter was sent, a Cavalry representative called Keller at her unpublished home number ("the April 2008 call"), "was very nasty, aggressive and fast talking, and tried to force Keller into a $600 settlement, but when Keller refused, the caller threatened to call Keller again, and hung up on Keller after the call had lasted about two minutes." (Compl. ¶ 34.)
In October 2008, Cavalry accessed Keller's credit report without her consent and after she informed Cavalry the debt was not hers. Keller further alleges that Cavalry did not reasonably investigate the Sprint account and "may have failed to report the account as disputed to the three credit bureaus" (Compl. ¶ 38).
Keller filed suit against Cavalry and the other defendants in state court on February 19, 2009, charging them with numerous violations of federal and state law. The defendants timely removed the action to this court. Cavalry has moved to dismiss the action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
The claims against Cavalry are as follows: Count 1 alleges common law negligence; Count 2 alleges defamation; Count 3 alleges false light invasion of privacy; Counts 10-18 allege violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692c- 1692f; Counts 19-21 allege violations of the Maryland Consumer Debt Collection Act, Md. Code, Com'l Law § 14-202; and Counts 22 and 23 allege impermissible access of the plaintiff's credit report in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681b, and Md. Code, Com'l Law § 14-1202(a), respectively.
ANALYSIS
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, a Rule 12(b)(6) motion does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks and alterations omitted). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Following the Supreme Court's ruling in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007), "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 1969 (quoted in Goodman v. Praxair, 494 F.3d 458, 466 (4th Cir. 2007)). Moreover, the "plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65.
Looking first to the alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., as Cavalry does in its motion, and viewing all allegations in the complaint as true and all reasonable assumptions in the light most favorable to the non-moving party, Keller has not failed to state a claim under the FDCPA. In Count 10, for example, Keller alleges that Cavalry violated a provision of the statute that prohibits a debt collector from communicating with a consumer "at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer," id. § 1692c, by placing the April 2008 call to her unpublished number, a number that Keller previously told a Cavalry representative to cease calling. She further claims in Count 11 that Cavalry engaged in conduct "the natural consequence of which is to harass, oppress, or abuse [her] in connection with the collection of a debt," in violation of § 1692d. While a majority of Cavalry's collection efforts fell outside of FDCPA's one-year statute of limitations and thus cannot form the basis of her cause of action, see id. § 1692k(d), those alleged calls and letters may be relevant evidence in establishing an abusive or harassing pattern of which the conduct that occurred within the limitations period was a part, see, e.g., Pittman v. J.J. MacIntyre Co. of Nev., 969 F.Supp. 609, 612 (D. Nev. 1997). Moreover, Keller alleges in Count 15 that Cavalry "threat[ened] to take . . . action that cannot legally be taken or that is not intended to be taken," in violation of § 1692e(5), during the April 2008 call by threatening to call her again on her unpublished number after Keller refused to enter a $600 settlement.
As this discussion makes clear, Keller has not failed to state a claim under the FDCPA. At a minimum, these counts will survive and discovery on the facts related to Cavalry's conduct must proceed in any event. Thus, while it is a close call as to whether some of Keller's other theories should survive this motion to dismiss, in the interest of efficiency, the motion will be denied as to all but one conceded count to permit a more careful consideration of Keller's claims at a later stage of litigation. A separate order follows.
Keller concedes in her opposition memorandum that Count 14 fails to state a claim (Opp. Mem. at 8); accordingly, the court will dismiss that count.