Opinion
Civil No. 3:02-CV-2654-H.
July 22, 2003.
ORDER
Before the Court are Defendant Risk Management Alternatives, Inc.'s Partial Motion to Dismiss for Failure to State a Claim, filed May 23, 2003, Plaintiff's Response, filed June 2, 2003, Plaintiff's Supplemental Response, filed June 3, 2003, and Defendant's Reply, filed June 23, 2003.
I. Background
This case was filed under the Fair Credit Reporting Act ("FCRA"), Federal Fair Debt and Collection Act ("FFDCA") and under state law. This Court has previously ruled on Partial Motions to Dismiss by the other Defendants in this case. See Memorandum Opinions and Orders of April 16, 2003, April 17, 2003 and May 8, 2003. Defendant Risk Management Alternatives, Inc. ("RMA") now brings this Partial Motion to Dismiss, and argues that: (1) Plaintiff's negligence claim against RMA must be dismissed based upon this Court's prior rulings in this case; (2) Plaintiff's claim against RMA for defamation must be dismissed as time barred; (3) Plaintiff's "Texas Debt Collection" claim against RMA must be dismissed because Plaintiff fails to allege that the debts in question are "consumer debts;" (4) Plaintiff has failed to state a claim for debt collection practices under Texas common law; and (5) Plaintiff's FFDCA claim against RMA must be dismissed because Plaintiff fails to allege any facts that show that the debts in question were "consumer debts" as required by 15 U.S.C. § 1629K(a)(2). Plaintiff disputes each of these assertions.
II. Discussion
When ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must "liberally construe the complaint in favor of the plaintiff and assume the truth of all pleaded facts." Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir. 2002) citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). The Court addresses each of Defendant RMA's arguments with this standard in mind.
A. Plaintiff's Negligence Claims
RMA's first two arguments have been addressed in prior decisions of this Court. See Memorandum Opinions and Orders of April 16, 2003, April 17, 2003 and May 8, 2003. Plaintiff has alleged that RMA is both a "user" and "furnisher" of credit information as defined in the FCRA. In keeping with the Court's prior decisions on this issue, a cause of action for negligence cannot be maintained against "any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency" because such claims are prohibited by § 1681h(e) of the FCRA. See Id.; 15 U.S.C. § 1681h(e). Plaintiff's claim for negligence against RMA cannot stand. Defendant's Partial Motion to Dismiss Plaintiff's negligence claim is GRANTED and Plaintiff's claim for negligence against RMA is DISMISSED. B. Plaintiff's Defamation Claims
Defendant RMA also moves to dismiss Plaintiff's defamation claims. RMA presents two arguments for why Plaintiff's defamation claims cannot survive this Partial Motion to Dimiss: (1) in keeping with this Court's prior rulings, any claims for defamatory statements made prior to December 12, 2001 are time barred; and (2) Plaintiff's defamation claim in its entirety is time barred.
Defendant argues that any claim for defamatory statements made prior to December 12, 2001 are barred by the statute of limitations. Plaintiff responds that a motion to dismiss is an inappropriate vehicle in which to raise the statute of limitations issue. However, as discussed in this Court's previous opinions, statute of limitations issues may be determined in a motion to dismiss. See Radford v. General Dynamics Corp., 151 F.3d 396, 398 (5th Cir. 1998); Memorandum Opinion and Order of May 8, 2003. In keeping with this Court's previous rulings in this case, any defamatory statements made prior to December 12, 2001 are outside the statute of limitations and therefore may not give rise to a claim for defamation in this case.
Defendant further argues that all of Plaintiff's defamation claims must be dismissed because "the statute of limitations for defamation in the context of Plaintiff's claims in this case began to run when Plaintiff first discovered [the] alleged fraudulent debt in May 2001." RMA seems to argue that, despite the fact that the allegedly inaccurate credit report was published multiple times, only the first publication matters for purposes of a statute of limitations analysis. However, the Court has not located any basis for that premise. Under the general rule of defamation in Texas, each separate publication of a defamatory statement gives rise to a separate cause of action for defamation. Wheeler v. The Methodist Hosp., 95 S.W.3d 628, 639 (Tex.App.-Houston 2002, no pet.); Hyde v. Hibernia Nat'l Bank, 861 F.2d 446, 450 (5th Cir. 1988). The only exception to this rule is that of the "continuing tort," which does not apply in this case. See, e.g., Proctor Gamble Co. v. Amway Corp., 80 F. Supp.2d 639, 652-53 (S.D. Tex. 1999) (rev'd in part on other grounds) (defamation not generally considered a continuing tort). RMA's Partial Motion to Dismiss Plaintiff's defamation claims is GRANTED with respect to those defamatory statements made prior to December 12, 2001. RMA's Partial Motion to Dismiss is otherwise DENIED. C. Plaintiff's Texas Debt Collection Claims
The case cited by Defendant RMA in support of this proposition, Dornhecker, Sanchez Johnson v. Ameritech, Corp., 99 F. Supp.2d 918, 932 (N.D. Ill. 2000), is inapposite. Dornhecker applied Illinois state-law on defamation rather than the Texas law that applies in this case. Furthermore, the case does not expressly stand for the concept that multiple events of defamation all accrue at the time of the initial defamatory statement.
Plaintiff's Complaint brings a claim under "Texas Debt Collection." (Pl.'s Compl. at ¶ 263-64). It is not clear from the face of the complaint whether the basis for this claim is found in statutory or common law. RMA brings its Motion to Dismiss against this claim under both options.
1. Texas Debt Collection Practices Act
RMA argues that Plaintiff cannot show that the debt at issue in this case constitutes a "consumer debt" as required by the Texas Debt Collection Practices Act ("TDCPA"). Under the TDCPA a "consumer debt" is defined as "an obligation, or an alleged obligation, primarily for personal, family, or household purposes and arising from a transaction or alleged transaction." TEX. FIN. CODE ANN. § 392.001(2) (2003). In this case, Plaintiff alleges that he was wrongfully given personal liability for the corporate debts of his former employer, Paragon Computers, Inc. (Pl.'s Compl. at 7). That is not "an obligation, or an alleged obligation, primarily for personal, family, or household purposes" and as such cannot give rise to a cause of action under the TDCPA. Plaintiff's claim against RMA under the TDCPA is DISMISSED. 2. Texas Common Law
Defendant RMA also addresses the possibility that Plaintiff has brought a claim for unreasonable collection efforts under Texas common law. Unreasonable collection efforts are defined as "efforts that amount to a course of harassment that was willful, wanton, malicious, and intended to inflict mental anguish and bodily harm." Woodrum v. Bradley, 1990 WL 151264 (Tex.App.-Houston (14th Dist.) 1990, writ denied) (not designated for publication); see also, Connell v. Rosales, 419 S.W.2d 673, 676 (Tex.Civ.App.-Texarkana 1967, no writ). Conduct giving rise to recovery in unreasonable collection efforts under Texas law varies from case to case. The Court declines to find that Plaintiff has failed to state a claim upon which relief may be granted for common law unreasonable collection efforts at this time. Plaintiff has met the obligations of notice pleading. While the burden of proof on the Plaintiff for this claim will be high, it is too early to tell whether Plaintiff can meet that burden. Defendant RMA's Motion to Dismiss Plaintiff's "Texas Debt Collection" claim is GRANTED to the extent such a claim is brought under the TDCPA and DENIED to the extent such a claim is brought under Texas common law for unreasonable debt collection efforts.
D. Plaintiff's Federal Fair Debt Collection Act claim
Finally, Defendant RMA brings a Partial Motion to Dismiss Plaintiff's FFDCA claim. As with the TDCPA, a claim under the FFDCA must be related to a "consumer debt." "Consumer debt" is defined by the FFDCA as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes." 15 U.S.C. § 1692a(3) and (5) (2003). Plaintiff has not stated a claim upon which relief may be granted with respect to this claim because the debt at issue in this case is corporate rather than consumer in nature. Defendant RMA's Partial Motion to Dismiss is GRANTED with respect to Plaintiff's FFDCA claim.
III. Conclusion
Defendant RMA's Partial Motion to Dismiss is GRANTED as to Plaintiff's claims under the FFDCA, Plaintiff's claims under the TDCPA, Plaintiff's negligence claim, and that portion of Plaintiff's defamation claim that relates to defamatory statements made before December 12, 2001. Defendant RMA's Motion to Dismiss is DENIED with respect to Plaintiff's defamation claim arising out of defamatory statements made after December 12, 2001 and Plaintiff's Texas common law claim for unreasonable debt collection.
SO ORDERED.