Moore v. Principal Credit Corporation, No. 4:96CV338-S-B (N.D. Miss. 3/__/1998), 4:96CV338-S-B.

• Decision Date: 01 March 1998
• Docket Number: No. 4:96CV338-S-B.,4:96CV338-S-B.
• Parties: JAMES RODNEY MOORE, SR., et al., Plaintiffs, v. PRINCIPAL CREDIT CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

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JAMES RODNEY MOORE, SR., et al., Plaintiffs, v. PRINCIPAL CREDIT CORPORATION, et al., Defendants.

No.4:96CV338-S-B.

United States District Court, N.D. Mississippi, Greenville Division.

March __, 1998.

OPINION

This cause is before the court upon the defendants' motion to dismiss the various claims brought by the plaintiffs. The plaintiffs allege violations of the Fair Debt Collection Practices Act, 15 U.S.C.§ 1692 et seq., telephone harassment under 47 U.S.C.§ 223(a)(1) and Ms. Code § 97-29-45, Ms. Code § 95-1-1, and an intentional infliction of emotional distress claim.

Plaintiffs James Rodney Moore, Sr. and Patricia A. Moore are the parents of Plaintiff James Rodney Moore, Jr., a minor. The Moores owned and operated P&J Meat & Egg Co., Inc., a grocery business with locations in Drew and Merigold, Mississippi. According to the plaintiffs, beginning December 1, 1995, the defendants began making threatening and abusive telephone calls to the plaintiffs, including the minor plaintiff, regarding collection of debt for the purchase of computer software.

A Rule 12(b)(6) motion is disfavored and it is rarely granted. Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986). The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Jefferson v. Lead Industries Ass'n, Inc., 106 F.3d 1245, 1250 (5th Cir. 1997); Fernandez-Montes v. Allied Pilots Ass'n., 987 F.2d 278, 285 (5th Cir. 1993). The court must take the factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. Id. Dismissal is never warranted because the court believes the plaintiff is unlikely to prevail on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

The plaintiffs seek relief under 47 U.S.C.§ 223 which provides criminal sanctions of fines and imprisonment for obscene or harassing telephone calls occurring in interstate communications. The plaintiffs additionally seek relief under Ms. Code § 97-29-45, the analogous state criminal statute for harassing telephone calls. Because no private cause of action for either telephone harassment statute is available, the court grants the defendants' motion to dismiss on both of these claims.

The court additionally dismisses the plaintiffs' claim under Ms. Code § 95-1-1. In their response to the defendants' motion to dismiss, the plaintiffs concede that they do not allege a libel or slander claim but that their claim is one for "actionable words." According to the Mississippi Supreme Court, "the statute was designed to punish spoken words (not written), usually where there would be a face-to-face encounter, and, more importantly, no cooling-off time before a physical altercation occurred." Isaacks v. Reed, 537 So.2d 409 (Miss. 1988). Because the plaintiffs base their claim on telephone calls purportedly from New York, it would be a far reach to find that these words, no matter how abusive or threatening, were calculated to lead to a breach of the peace. Without further discussion, the court finds that the plaintiffs have failed to state a cause of action under § 95-1-1 and, therefore, grants the defendants' motion to dismiss on the claim asserted thereunder.

Finally, the defendants' have moved to dismiss claims under The Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq, and the intentional infliction of emotional distress claim. The defendants argue that the debt was a business debt of the plaintiffs and, therefore, The Fair Debt Collection Practices Act is inapplicable.

The defendants direct the court to the definitions of "consumer"and "debt"¹ arguing that the collection attempts arose from a business debt. In response, the plaintiffs confess that the subject of the obligation is not clearly identified in the complaint as one "primarily for personal, family, or household purposes" but that should the defect be material, it can easily be cured by amendment.² Based upon the following reasoning, it is unnecessary for the plaintiffs to amend their complaint solely as a measure to defeat the defendants' motion to dismiss.

The complaint clearly states that the adult...