Opinion
CASE NO. 2:10cv36-MEF.
May 17, 2010
MEMORANDUM OPINION AND ORDER
This Fair Debt Collection Practices Act ("FDCPA") case is before the Court on the Motion to Dismiss (Doc. # 5) filed by Defendant Law Office of Curtis O. Barnes ("Defendant") on January 18, 2010. Plaintiff Ricky Polk ("Polk") opposes this motion. For the reasons set forth below, the motion is due to be GRANTED, but Polk will be allowed an opportunity to amend his allegations.
JURISDICTION AND VENUE
This Court has subject matter jurisdiction over this case pursuant to 15 U.S.C. § 1692k(d), as well as, 28 U.S.C. §§ 1331 and 1367. Additionally, Defendant has not argued that the Court does not have personal jurisdiction over it. Pursuant to 28 U.S.C. § 1391(b), venue is appropriate in this district because a substantial part of the events or omissions giving rise to the claims occurred in this judicial district.
FACTUAL AND PROCEDURAL BACKGROUND
In December of 2009, Polk filed suit against Defendant in the Circuit Court of Covington County, Alabama. In the Complaint, Polk alleges that agents of Defendant called him on his cell phone regarding a debt he owed to Best Buy. Polk alleges that this call to his cell phone was not the first telephone called he had received from Defendant as Defendant attempted to collect on Polk's debt. Polk also alleges that Defendant's agents called his place of employment in an effort to embarrass and intimidate him and that Defendant frequently employs a strategy of such telephone calls in an attempt to collect on debts. Polk also alleges somewhat cryptically that
[a]s defendant called the employer of plaintiff Ricky Polk, defendant knew the "rig number" of the rig plaintiff Ricky Polk worked on (plaintiff is an offshore oil rig worker). This rig number is confidential and not generally known to the public. Defendant's knowledge of plaintiff's "rig number," and their [sic] knowledge of plaintiff's cell phone number leads plaintiff to assert, upon information and believe, that Defendant Law Offices of Curtis O. Barnes utilizes consumer information in an illegal and improper manner.
Doc. 1-2 at ¶ 9. After these meager factual allegations, Polk alleges in a very conclusory fashion that Defendant's conduct violated the FDCPA and that it constitutes the Alabama tort of invasion of privacy. He further alleges that Defendant negligently or wantonly hired, retained, or supervised incompetent debt collectors who committed the wrongs against him. Polk seeks statutory damages under the FDCPA, attorney's fees and costs, punitive damages, and compensatory damages.
On January 13, 2010, Defendant removed this action from the Circuit Court of Covington County, Alabama to this court by invoking its jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, and 1367. Shortly thereafter, Defendant filed the instant motion to dismiss citing the vague and conclusory allegations of Polk's Complaint as improper under federal law.
DISCUSSION
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Prior to the Supreme Court's decision in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007), a motion to dismiss could only be granted if a plaintiff could prove "no set of facts . . . which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986). Now, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, ___ U.S. ___, 129 S. Ct. at 1949. A complaint does not state a facially plausible claim for relief if it shows only "a sheer possibility that the defendant acted unlawfully." Id. While a complaint need not contain detailed factual allegations to survive a motion pursuant to Federal Rule of Civil Procedure 12(b)(6), "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. (quotation marks and citations omitted). Absent the necessary factual allegations, "unadorned, the-defendant-unlawfully-harmed-me accusation[s]" will not suffice. Id. In considering a defendant's motion to dismiss, a district court will accept as true all well-pleaded factual allegations and view them in a light most favorable to the plaintiff. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Accord, Nelson v. Campbell, 541 U.S. 637, 640 (2004) (where a court is considering dismissal of a complaint at the pleading stage, it must assume the allegations of the complaint are true).
The Court is of the opinion that Polk's Complaint is largely comprised of conclusory allegations of violations of a lengthy and complex statute without supplying sufficient factual detail to satisfy the requirements of Twombly and Iqbal. The description of the conduct Defendant is alleged to have undertaken is vague and confusing. Is the "rig number" an identification number for Polk's work site or a telephone number for his work site on an offshore drilling platform? The Court simply cannot tell which Polk intends to convey. Furthermore, it is not clear if Polk is alleging that Defendant contacted his employer at some point to learn the "rig number" or how Defendant learned the "rig number." It is also not clear what Polk intends to allege about how Defendant might have learned his cell phone number or whether Defendant had any reason to know that it was improper to contact Polk while he was at work. Also absent from the Complaint are allegations from which the Court could ascertain the number, frequency or pattern of calls from Defendant's agents or the content of the calls which he contends were intended to harass or intimidate him. Simply put, his factual allegations are inadequate as a matter of law to support his contention that Defendant violated the FDCPA or committed the tort of invasion of privacy. Moreover, the Court cannot find sufficient factual support for the remaining negligent/wanton hiring/retention/supervision claim. For the foregoing reasons, the Court finds that Polk's Complaint (Doc. # 1-2) fails to comply with Federal Rule of Civil Procedure 8's requirement that it contain a short and plain statement of the facts and is largely comprised of legal conclusions which do not plausibly suggest liability on the part of Defendant.
Although the Court will grant Defendant's motion to dismiss for the reasons set forth in this Memorandum Opinion and Order, Polk will be given an opportunity to cure the present pleading inadequacies in the claims brought against Defendant, if he can do so bearing in mind the strictures of Rule 11 of the Federal Rules of Civil Procedure. If Polk continues to assert claims against Defendant in an Amended Complaint, he must rectify the deficiencies noted above and he must allege sufficient facts to state claims to relief that are plausible on their face. Defendant will, of course, be free to file another motion to dismiss in response to any Amended Complaint Polk files, should it choose to do so.
CONCLUSION
Accordingly, Defendant's motion to dismiss is GRANTED. It is further ORDERED that Plaintiff shall have until May 27, 2010 to file an Amended Complaint which more specifically pleads the factual basis of the claims asserted against Defendant. Any Amended Complaint Polk files must be complete unto itself, must not incorporate by reference allegations of the prior Complaint, must not include additional claims, and must strictly conform to this Memorandum Opinion and Order.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).