Summary
In Rosario, the plaintiff alleged, inter alia, various violations of the FDCPA based on two notices sent by the defendants in connection with the collection of a debt. It was undisputed that the two notices were sent to "Lydia Rosario, c/o Thomas Hiedkamp, PO Box 61169, Fort Myers, FL 33906-1169;" that Mr. Hiedkamp was the plaintiff's attorney at the time of the correspondence; and that the address was the post office box for Mr. Hiedkamp's law office.
Summary of this case from Ahmed v. I.C. System, Inc.Opinion
Case No. 2:01-cv-221-FTM-29DNF
August 27, 2001
ORDER
This matter is before the Court on defendants' Motion to Dismiss Class Action Complaint (Doc. #19), filed on July 10, 2001. Plaintiff's Response to Defendants' Motion to Dismiss Class Action Complaint (Doc. #27) was filed on July 26, 2001. Defendants seek to dismiss the Fair Debt Collection Practices Act claim set forth in Count I because the notices in question were sent to plaintiff's attorney, and not to plaintiff. Defendants seek to dismiss Count II because of the resulting lack of federal jurisdiction over the state cause of action after the dismissal of Count I.
In deciding a motion to dismiss, the Court must accept as true all factual allegations in the Complaint. South Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996); Brown v. Crawford County, Ga., 960 F.2d 1002, 1010 (11th Cir. 1992). The Complaint must be viewed and all reasonable inferences must be made in favor of the plaintiff.Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (noting that when a court determines a motion to dismiss, the issue is not whether plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims). A Complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted); Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1072 (11th Cir. 2000), reh'g denied, 244 F.3d 143 (11th Cir. 2000).
Federal Rules of Civil Procedure require only that plaintiff set forth a short and plain statement of the claim that will give defendant fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8.;Conley v. Gibson, 355 U.S. at 47. However, dismissal is warranted under Fed.R.Civ.P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford County, Ga., 960 F.2d at 1010.
Here, plaintiff alleges various violations of 15 U.S.C. § 1692e for two notices sent by defendants. It is undisputed that the two notices at issue were sent to "Lydia Rosario, c/o Thomas Hiedkamp, P0 Box 61169, Fort Myers, Fl 33906-1169," that Mr. Hiedkamp was plaintiff's attorney at the time of the correspondence, and that the address was the post office box for Mr. Hiedkamp's law office. Defendants argue that plaintiff has failed to state a claim "because the notices at issue were sent not to her, but to her attorney." (Doc. #20, p. 4). The Court disagrees.
A "communication" under the statute is defined broadly: "The term" "communication means the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. § 1692a(2). Additionally, a debt collector who knows that the consumer is represented in the matter by an attorney is generally obligated to communicate with the consumer only through the attorney. 15 U.S.C. § 1692c(a)(2). In such situations, a notice to counsel satisfies the requirement that notice be sent to the consumer. Chaudhry v. Gallerizzo, 174 F.3d 394, 407 (4th Cir. 1999), cert. denied, 528 U.S. 891 (1999). It would not seem to further the purpose of the Act to preclude a claim for allegedly actionable communications simply because they were directed to plaintiff through an attorney's office in situations where the statute required communication only through counsel. The Court concludes that the statute is implicated at least in situations such as this, where the notices are sent to plaintiff, albeit at her attorney's address, and their text is plainly addressed to plaintiff and not her attorney. Under these circumstances, the notices qualify as a communication to a consumer under the Fair Debt Collection Practices Act.
Accordingly, it is now
ORDERED:
Defendants' Motion to Dismiss Class Action Complaint (Doc. #19) isDENIED.