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Cassandra Little v. Portfolio Recovery Associates, LLC

United States District Court, District of Kansas

April 10, 2014

Cassandra Little, Plaintiff,
v.
Portfolio Recovery Associates, LLC, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

Plaintiff Cassandra Little has sued Portfolio Recovery Associates (PRA) under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., alleging that they illegally harassed her while attempting to collect on a debt. The court previously granted PRA’s motion to dismiss Little’s FDCPA claims, finding Little’s allegations similar to those which were dismissed in Webb v. Convergent Outsourcing, Inc., 11–2606–JTM, 2012 WL 162394 (D.Kan. Jan. 19, 2012). This decision was affirmed in part and reversed in part on appeal, with the court agreeing that Little’s claim under 15 U.S.C. § 1692e(5) was properly dismissed, but remanding for further consideration of her § 1692d(5) claim, to the extent that her specific allegations differ from those in Webb, and address her § 1692e(2) claim advanced in paragraph 35 of her proposed amended complaint. Little v. Portfolio Recovery Assoc., __ Fed.Appx. __, 2013 WL 6153579 (10th Cir. 2013).

Subsequent to the appeal, Little has conceded that her Amended Complaint does not set forth a claim under § 1692e. (Dkt. 25, at 8). Accordingly, the only question before the court is whether Little’s amended complaint adequately states a claim for violation of § 1692d(5).[1]

To avoid dismissal, the complaint must present “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Plausibility” refers to the scope of the complaint; it cannot be so general as to encompass a wide swath of innocent conduct. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008). In assessing a motion to dismiss for failure to state a claim, we accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff. Smith [ v. United States], 561 F.3d [1090, ] 1098 [(10th Cir. 2009)]. Conclusory statements, threadbare recitals of elements, and legal conclusions, however, are not entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint must provide more than “naked assertion[s] devoid of further factual enhancement.” Id. (internal quotation marks omitted).

Little, 2013 WL 6153579, at *1.

Except for changes to Paragraphs 32 and 33, the modifications in the Amended Complaint are not substantial, and do not address Little’s § 1692d(5) claim. That is, she references that the debt was incurred with a particular credit card (¶ 17), and specifies that PRA attempted to communicate with her by telephone and mail “including but not limited to February, March and April 2012" (¶ 25). Otherwise the Amended Complaint adds allegations which relate solely to the claims under § 1692e or § 1692e(2), which she has abandoned.

With respect to the § 1692d(5) claim, Little alleges:

32. During the telephone calls representatives, employees and/or agents of the Defendant caused Plaintiff’s telephone continuously to ring, multiple times per day, with the intent to annoy, abuse and harass Plaintiff in violation of 15 U.S.C. § 1692d preface and d(5), in that they continued to call after advised Plaintiff could not pay.
33. During the telephone calls representatives, employees and/or agents of the Defendant repeatedly engaged Plaintiff in conversation, multiple times per day, with the intent to annoy, abuse and harass Plaintiff in violation of 15 U.S.C. § 1692d preface and d(5), after advised Plaintiff could not pay.

(Dkt. 10-1). The language in bold was added by Little in her Amended Complaint.

PRA argues that the Amended Complaint remains impermissibly vague. It notes the many cases holding that frequent calls, by themselves, do not establish an intent to harass. In determining whether a collection service has violated § 1692d(5),

the Court considers the volume and pattern of the calls by the debt collector to the plaintiff. A high volume of calls, even daily calls, unaccompanied by other egregious conduct is insufficient to raise a triable issue of fact for the jury.

Webb v. Premiere Credit, No. 12-2001, 2012 WL 5199754, *3 (D. Kan. Oct. 22, 2012) (footnotes omitted). As PRA notes, Webb is consistent with other decisions interpreting § 1692d(5). See Miller v. Prompt Recovery Servs., No 11-2292, 2013 WL 3200659 (N.D. Ohio June 24, 2013); Conover v. BYL Collection Servs., No. 11-6244, 2012 WL 4363740 (W.D.N.Y. Sept 21, 2012); Carman v. CBE Group, 782 F.Supp.2d 1223, 1232 (D. Kan. 2011).[2]

However, a “high volume of calls, even daily calls” is one thing, multiple calls in the same day is another. As Webb itself recognized, “Other egregious conduct may include calling after immediately hanging up, calling multiple times in a single day, calling places of employment, calling family or friends, calling at odd hours, or calling after being asked to stop.” 2012 WL 5199754 at *3. See also Conover, 2012 WL 4363740 at *6 ...


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