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Hinds v. Ar Resources, Inc.,

United States District Court, Eighth Circuit

April 30, 2013

Bobby L. Hinds, Plaintiff,
v.
AR Resources, Inc., Defendant.

Peter F. Barry, Esq., Barry, Slade & Wheaton, LLC, counsel for Plaintiff.

Jeffrey W. Thone, Esq., Stephenson, Sanford & Thone PLC; and Kevin Cornish, Esq., High Swartz LLP, counsel for Defendants.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on a Motion to Dismiss Plaintiff's Amended Complaint brought by Defendant AR Resources, Inc. ("ARR") (Doc. No. 12). For the reasons set forth below, the Court grants the motion.

BACKGROUND

The central facts and procedural history of this case are largely undisputed by the parties for purposes of this motion.

ARR is a collection agency and a "debt collector" under the Fair Debt Credit Practices Act ("FDCPA"). (Doc. No. 8, Am. Compl. § 9.) Plaintiff Bobby L. Hinds ("Plaintiff") incurred a consumer debt and is a "consumer" under the FDCPA. ( Id. §§ 8, 10.) Plaintiff alleges that in April 2012, he disputed "with at least one credit-reporting agency" ARR's placement of this debt on his credit report. ( Id. § 11.) Plaintiff alleges that he disputed the debt after seeing and not recognizing the item on his credit report. ( Id. § 12.) Plaintiff alleges that ARR was on notice in or around April 2012 that he disputed the debt. ( Id. § 14.) Plaintiff further alleges that after receiving notice, ARR "updated" credit reporting information to consumer credit reporting agencies (Experian, Equifax, TransUnion and CSC) in July 2012, but failed to notate that Plaintiff disputed the debt. ( Id. §§ 15, 16, 17-25.) In addition, and specifically with respect to the Experian credit report, Plaintiff alleges that ARR misrepresented the status of his account as "Account Closed By Consumer's Request, " thus leaving the disputed item on the report. ( Id. §§ 22-25, Ex. 2 at 4.) Finally, Plaintiff alleges that on or about August 2, 2012, an ARR agent or employee communicated with Plaintiff by telephone and asked for payment on the alleged debt without disclosing that the agent was a debt collector. ( Id. §§ 36-38.) Plaintiff initiated the phone call with ARR in an effort to determine the source of an item appearing on his credit report. ( Id. § 37.) During the phone call, the representative of ARR stated: "[F]irst I have to advise you this is an attempt to collect a debt." (Doc. No. 15, Alford Aff. § 14, Ex. 2.)

On October 9, 2012, Plaintiff filed an action against ARR for violations of the FDCPA. (Doc. No. 1.) ARR moved to dismiss the Complaint. (Doc. No. 2.) On November 19, 2012, Plaintiffs filed an Amended Complaint, which asserts a single cause of action for violations of the FDCPA. ( See generally Am. Compl.) In particular, Plaintiff alleges that ARR violated the FCDPA by: failing to notate that Plaintiff disputed the debt with a credit reporting agency when ARR updated credit information in July 2012; misrepresenting the status on Plaintiff's Experian credit report as "Account Closed By Consumer's Request"; and failing to provide required consumer warnings during the August 2, 2012 phone call. ( See generally id. )

ARR moves to dismiss Plaintiff's Amended Complaint, arguing that the allegations in the Amended Complaint fail to state a claim for relief and, in the alternative, that personal jurisdiction does not exist over ARR.[1]

DISCUSSION

I. Motion to Dismiss Standard

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).

To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). Although a complaint need not contain "detailed factual allegations, " it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. As the United States Supreme Court recently reiterated, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at ...


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