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Hubbell v. American Accounts & Advisors, Inc.

United States District Court, Eighth Circuit

October 7, 2013

Katelynn Hubbell, Plaintiff
v.
American Accounts & Advisors, Inc. Defendant.

Thomas J. Lyons, Jr., Esq., for Plaintiff

Katelynn Hubbell; and Richard J. Malacko, Esq., for Defendant American Account & Advisors, Inc.

REPORT AND RECOMMENDATION ON MOTION FOR JUDGMENT ON THE PLEADINGS

ARTHUR J. BOYLAN, Magistrate Judge.

This action is before the court, United States Chief Magistrate Judge Arthur J. Boylan, on a Motion for Judgment on the Pleadings [Docket No. 4] by Defendant American Account & Advisors, Inc. ("AAA"). A hearing on the motion was held on September 4, 2013, at the United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415. This case has been referred to the magistrate judge for report and recommendation under 28 U.S.C. § 636(b)(1)(B). It is the court's determination herein that Defendant's motion should be granted in part and denied in part.

Background and Claims

Plaintiff Katelynn Hubbell utilized the services of Southdale Anesthesiologists and received a bill for $334.15. Plaintiff failed to a make a timely payment. As a result, her debt was sent to Defendant for collection. Defendant is a licensed collection agency in the State of Minnesota.

On January 10, 2013, Defendant sent Plaintiff an initial collection letter, requesting "PAYMENT IN FULL." [Docket No. 12]. The letter advised Plaintiff that her failure to pay could result in legal action being commenced against her. Despite this warning, Plaintiff did not send payment in full to Defendant.

On February 14, 2013, Defendant sent Plaintiff a second collection letter. The letter stated in pertinent part: "WE REGRET THAT THE ACTION NOW BEING TAKEN BECAME NECESSARY. WE HAD HOPED THAT WE MIGHT WORK THIS OUT ON A VOLUNTARY BASIS. APPARENTLY, THIS IS NOT POSSIBLE." [Docket No. 12].

Concerned that some action had been commenced against her, Plaintiff called Defendant's office on February 28, 2013 to inquire about the second letter. Plaintiff spoke with a collector named Amir, who informed her that, in fact, no "additional action nor any legal action was being taken." [Docket No. 1].

In response to this phone conversation, Plaintiff filed this federal lawsuit against Defendant on May 15, 2013. Plaintiff contends in her complaint that Defendant's second letter, dated February 14, 2013, violated the Fair Debt Collection Practices Act (FDCPA) because it was threatening, misleading, contained false and deceptive language, and caused her to erroneously believe that additional action was being taken against her. She relies on 15 U.S.C. §§ 1692(e), 1692(e)(5), 1692(e)(10), and 1692(f) of the FDCPA. Plaintiff's complaint includes a demand for actual damages, statutory damages, costs and reasonable attorney's fees.

On June 14, 2013, Defendant made an offer for judgment in the amount of $1, 001, pursuant to Fed.R.Civ.P. 68. Plaintiff rejected the offer. Defendant did not file an answer, but nonetheless now moves to dismiss Plaintiff's complaint on the pleadings, pursuant to Fed.R.Civ.P. 12(c).[1]

Standard of Review

Defendant seeks dismissal of Plaintiff's complaint under Fed.R.Civ.P. 12(c), motion for judgment on the pleadings. A Rule 12(c) motion is only appropriate "after the pleadings are closed." When a defendant brings a motion to dismiss prior to the close of the pleadings, the motion is properly made pursuant to Fed.R.Civ.P. 12(b)(6). Here, the pleadings are not closed because Defendant has not yet served an answer to Plaintiff's complaint.

Ordinarily, a procedural error of this nature might result in the denial of a defendant's motion. However, because the legal standard for both motions is the same, and the distinction between the two is "purely formal, " the Court will treat Defendant's 12(c) motion as if it had been properly styled as a Rule 12(b)(6) motion. Ali v. Frazier, 575 F.Supp.2d 1084, 1090 (D. Minn. 2008) (citing Westcott ...


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