Christopher S. Wheaton, Esq. and Barry, Slade, Wheaton & Helwig, LLC, 2701 University Avenue S.E., Suite 209, Minneapolis, MN 55414, counsel for plaintiff.
Richard J. Malacko, Esq. and Malacko Law Office, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101, counsel for defendants.
DAVID S. DOTY, District Judge.
This matter is before the court upon the motion to dismiss by defendants American Account & Advisors, Inc. and John Doe (collectively, AAA). Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motion.
This Fair Debt Collection Practices Act (FDCPA) dispute arises out of the attempt by AAA to collect a debt owed by plaintiff Jennifer Caulfield. On January 23, 2012, Doe, an employee of AAA, contacted Caulfield by telephone to collect payment of the debt. First Am. Compl. § 9. Caulfield explained that she could not pay at that time, whereupon Doe shouted that she "needed to set something up with him then and there" and to "[b]e responsible and pay your bill." Id . §§ 13-14, 25. Caulfield asked Doe not to call her during business hours. Id . § 18. Doe responded that "he could continue to call her because he was trying to collect a debt." Id . § 19. In response, Caulfield terminated the phone call. Id . § 30.
Caulfield filed an amended complaint on November 23, 2012, alleging violations of the FDCPA. AAA filed an amended answer on December 5, 2012. On January 21, 2013, AAA moved to dismiss. At oral argument, and upon questioning from the court, AAA conceded that the motion is more properly styled as a motion for judgment on the pleadings. As a result, the court converts the present motion to a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
I. Standard of Review
The same standard of review applies to motions under Federal Rules of Civil Procedure 12(c) and 12(b)(6). Ashley Cnty., Ark. v. Pfizer, Inc. , 552 F.3d 659, 665 (8th Cir. 2009). Thus, to survive a motion for judgment on the pleadings, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009)). "A claim has facial plausibility when the plaintiff [has pleaded] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). Although a complaint need not contain detailed factual allegations, it must raise a right to relief above the speculative level. See Twombly , 550 U.S. at 555. "[L]abels and conclusions or a formulaic recitation of the elements of a cause of action" are not sufficient to state a claim. Iqbal , 129 S.Ct. at 1949 (citation and internal quotation marks omitted).
II. FDCPA Claims
"A violation of the FDCPA is reviewed utilizing the unsophisticated-consumer standard which... protects the uninformed or naive consumer, yet also contains an objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collection [attempts]." Strand v. Diversified Collection Serv., Inc. , 380 F.3d 316, 317-18 (8th Cir. 2004) (citations and internal quotation marks omitted). "The unsophisticated consumer test is a practical one, and statements that are merely susceptible of an ingenious misreading do not violate the FDCPA." Peters v. Gen. Serv. Bureau, Inc. , 277 F.3d 1051, 1056 (8th Cir. 2002) (citations and internal quotation marks omitted). Caulfield alleges that AAA violated §§ 1692d, 1692e and 1692f of the FDCPA.
A. Section 1692d
Section 1692d provides that a "debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." The statute ...