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Eliker v. Nelnet

United States District Court, D. Kansas

March 30, 2018

KYLE ELIKER, Plaintiff,
v.
NELNET, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Plaintiff Kyle Eliker filed an action against Nelnet, Inc., for violations of the Fair Debt Collection Practices Act (“FDCPA”), the Fair Credit Reporting Act (“FCRA”), and the Fair Trade Commission Act (“FTC Act”). Eliker alleges damages of $1, 200, 000.00. Nelnet moved to dismiss Eliker's claims. For reasons explained below, the Court grants Nelnet's Motion to Dismiss (Doc. 5).

         I. Factual and Procedural Background [1]

         Eliker is a consumer and Nelnet is a Nebraska corporation with its principal place of business located in Lincoln, Nebraska. Eliker filed a complaint against Nelnet with the Sedgwick County District Court of Kansas on July 14, 2017. Eliker alleges that Nelnet is a debt collector and that Nelnet violated the FDCPA, the FCRA, and the FTC Act. Eliker alleges that he sent notice to Nelnet on August 7, September 6, and October 7, 2016, requesting verification of a debt and that Nelnet failed to respond. Eliker did not describe the nature of the debt or the communications from Nelnet in the complaint. Eliker further alleges that Nelnet:

attempted to pass fraudulent and misleading documentation in an attempt to verify/validate the alleged debt . . . negligently and/or recklessly hired, supervised, trained or selected its employees and/or debt collectors who dealt [with] Plaintiff . . . knowingly allowed its employees and/or agents to violate state and federal laws; using aggressive, intimidating and abusive techniques when dealing with Plaintiff . . . publicized false information about the alleged money owed it by Plaintiff . . . maliciously, willfully, recklessly, wantonly and/or negligently ignore and refuse to follow the requirements of the FDCPA, FCRA, FTC Act and state laws . . . engaged in a pattern and practice of wrongful and unlawful behavior with respect to collection activities and the handling of the account . . . [and] proximately caused Plaintiff past and future monetary loss, past and future damage to Plaintiff's credit and credit worthiness, past and future mental distress and emotional anguish, and other damages.

         Nelnet removed the case to the U.S. District Court for the District of Kansas on August 15, 2017, and filed its Motion to Dismiss Eliker's claims on August 21, 2017.

         II. Legal Standard

         A. Standard of Dismissal Under Rule 12(b)(6)

         Under Rule 12(b)(6), a defendant may move to dismiss a claim for which a plaintiff “fails to state a claim upon which relief can be granted.”[2] A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.' ”[3] A claim is facially plausible if the court can reasonably infer the defendant is liable from the facts pleaded.[4] The plausibility standard reflects the Rule 8 requirement that pleadings must provide defendants with fair notice of the claims, as well as the grounds upon which the claims rest.[5] The Court accepts all factual allegations in the complaint as true and views them in a light most favorable to the plaintiff.[6]The Court, however, does not apply the same standard to conclusory allegations or legal conclusions.[7]

         B. Pleading Standard for a Pro Se Litigant

         A pro se plaintiff's pleadings are to be “construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”[8] This rule means that “if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”[9] It is not, however, the “proper function of the district court to assume the role of advocate for the pro se litigant.”[10]

         III. Analysis

         A. Nelnet's Motion to Dismiss Eliker's Claim under the ...


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