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McGill v. Diversified Consultants, Inc.

United States District Court, D. Kansas

February 4, 2014

JOSHUA J. McGILL, Plaintiff,
v.
DIVERSIFIED CONSULTANTS, INC., Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

This matter comes before the Court on defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim (Doc. # 6). For the reasons set forth below, the motion is denied.

I. Governing Standards

The Court will dismiss a cause of action for failure to state a claim only when the factual allegations fail to "state a claim to relief that is plausible on its face, " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326 (1989). The complaint need not contain detailed factual allegations, but a plaintiff's obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See Bell Atlantic, 550 U.S. at 555. The Court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

II. Plaintiff's Complaint

Plaintiff asserts a claim under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Plaintiff alleges the following facts: Plaintiff's personal telephone account with T-Mobile went into default, and the account was transferred to defendant, a collection agency, for collection of the amount due. Plaintiff filed an action against defendant under the FDCPA, and the parties entered into a settlement agreement under which defendant agreed "to purchase and permanently forgive" the alleged debt and agreed that it would not "seek to collect upon, sell or transfer this alleged debt in the future." Subsequently, defendant "falsely communicated to T-Mobile and/or another collection agency that the debt was still owed, " and plaintiff has been pursued by another collection agency for the same debt that was the subject of the settlement agreement with defendant. Plaintiff alleges that defendant violated Sections 1692e of the FDCPA, and he seeks actual damages (including for emotional distress), statutory damages, and attorney fees under that statute.

III. Analysis

A. Applicable Statutory Provisions

Plaintiff claims violations of the preface and paragraph (8) of Section 1692e of the FDCPA, which provide as follows:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
...
(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

15 U.S.C. § 1692e. Defendant does not dispute in this motion that it is a "debt collector" for purposes of the FDCPA. See id. § 1692a(6) (defining "debt collector"). "Debt" is defined by the statute to include both actual and ...


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