Plumb v. Prof'l Account Servs.
| Decision Date | 13 May 2020 |
| Docket Number | Case No. 3:19-cv-00085-SLG |
| Parties | JOSHUA PLUMB, Plaintiff, v. PROFESSIONAL ACCOUNT SERVICES, INC. and BETTY SANDERS, Defendants. |
| Court | U.S. District Court — District of Alaska |
Before the Court at Docket 33 is Defendants' Motion for Judgment on the Pleadings.1 Plaintiff Joshua Plumb responded in opposition at Docket 36. Defendants replied at Docket 37. Oral argument was not requested and was not necessary to the Court's decision.2
On March 28, 2019, Joshua Plumb commenced this action against Professional Account Services, Inc. ("PAS") and Betty Sanders (together, "Defendants"), alleging violations of the Fair Debt Collection Practices Act("FDCPA").3 On August 14, 2019, Mr. Plumb filed the operative First Amended Complaint ("FAC").4 According to the FAC, Mr. Plumb was injured in a car accident in December 2014 and treated at Mat-Su Regional Medical Center ("MSRMC").5 As a result of this treatment, Mr. Plumb incurred debt in the form of medical bills.6 Mr. Plumb alleges that his debt was eventually transferred to PAS for collection.7 On July 19, 2018, Ms. Sanders sent a fax to Mr. Plumb's counsel stating:
I am contacting your office on behalf of Mat-Su Regional Medical Center. . . I am checking on the status of the case for Joshua Plumb. . . The patient/client treated on 12/17/14 and has an outstanding balance with the hospital of $5,121.64. . . I spoke with Allstate and I was advised that the claim/case settled with the patient in June 2017. . . Please verify if the patient needs to be contacted for the balance or is the case still ongoing with your office?8
Mr. Plumb alleges that, contrary to Ms. Sanders's representations, Ms. Sanders sent the fax on behalf of PAS, and not MSRMC.9
A month or so later, on August 23, 2018, PAS sent a letter directly to Mr. Plumb titled "RE: Mat-Su Regional Medical Center," and stating as follows: "Peryour request, this is to advise you that your current balance is $5121.64."10 The letter added in bold font: 11
As a result of these two communications—the fax and the letter—Mr. Plumb alleges three violations by Defendants of 15 U.S.C. § 1692e: (1) false or misleading representations; (2) failure to disclose; and (3) time-barred debt collection.12 Mr. Plumb also seeks to certify a class defined as:
On August 19, 2019, Defendants answered, denying Mr. Plumb's allegations and raising affirmative defenses.14 Defendants now move for judgment on the pleadings.15
This Court has jurisdiction over Mr. Plumb's FDCPA claims pursuant to 28 U.S.C. § 1331, which provides for federal question jurisdiction, and pursuant to 15 U.S.C. § 1692k(d), which provides for federal jurisdiction over actions to enforce the FDCPA.
Under Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." "Motions for judgment on the pleadings under [Rule] 12(c) and motions to dismiss for failure to state a claim under [Rule] 12(b)(6) are 'functionally identical,'"16 but Rule 12(c) motions are premature unless an answer has been filed and the pleadings are closed.17 Accordingly, motions for judgment on the pleadings under Rule 12(c) are generally evaluated under the relevant Rule 12(b) standard; here, the relevant standard is Rule 12(b)(6).18
When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim,a court considers only the pleadings and documents incorporated into the pleadings by reference, as well as matters on which a court may take judicial notice.19 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"20 A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."21 Thus, there must be "more than a sheer possibility that a defendant has acted unlawfully."22 A court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party."23
When granting a motion to dismiss, a court is generally required to grant the plaintiff leave to amend, unless amendment would be futile.24 In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of theallegations of [the] original complaint."25
"The FDCPA 'comprehensively regulates the conduct of debt collectors,' and 'is a strict liability statute.'"26 "[T]he FDCPA prohibits debt collectors 'from making false or misleading representations and from engaging in various abusive and unfair practices.'"27 There are four elements to an FDCPA cause of action:
(1) the plaintiff is a "consumer" under 15 U.S.C. § 1692a(3); (2) the debt arises out of a transaction entered into for personal purposes; (3) the defendant is a "debt collector" under 15 U.S.C. § 1692a(6); and (4) the defendant violated one of the provisions contained in 15 U.S.C. §§ 1692a-1692o.28
In the instant motion, the parties dispute the fourth prong—whether Plaintiffs have alleged a violation of a provision of § 1692 and, specifically, whether Defendants' alleged conduct, if proven, would constitute a violation § 1692e. Section 1692e provides that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt" and provides a non-exhaustive list of examples of proscribed conduct including, as relevant here:
In determining whether conduct violates 15 U.S.C. § 1692e, a court "undertake[s] an objective analysis of the question whether the 'least sophisticated debtor would likely be misled by a communication,'" which is "a legal, not a factual, determination."29 "The 'least sophisticated debtor' standard is 'lower than simply examining whether particular language would deceive or mislead a reasonable debtor'" and is "'designed to protect consumers of below average sophistication or intelligence' or 'those who are uninformed or naïve,' particularly when those individuals are targeted by debt collectors."30 In the Ninth Circuit, "a debtcollector's liability under § 1692e of the FDCPA is an issue of law."31
Counts I and II of the FAC arise from Ms. Sanders's fax to Plaintiff's counsel ("the Fax"). In Count I, Plaintiff alleges that the Fax falsely represents that Ms. Sanders was acting on behalf of MSRMC, when, in fact, she was acting on behalf of PAS; Plaintiff alleges that therefore, the Fax violates 15 U.S.C. § 1692(e)(10)'s prohibition against use of a false representation in connection with collecting a debt.32 In Count II, Plaintiff alleges that the Fax fails to disclose that it is from a debt collector, in violation of § 1692(e)(11).33
Defendants contend that both counts based on the Fax should be dismissed.34 Citing to the Ninth Circuit's decisions in Guerrero v. RJM Acquisitions LLC and Donohue v. Quick Collect, Inc., Defendants contend that the Fax is not actionable under the FDCPA because it is a communication directed solely to an attorney.35 In Guerrero, the plaintiff sued the purchaser of his consumer debt forviolations of the FDCPA, including for misrepresenting to the plaintiff's counsel that it was not a debt collection agency, in violation of § 1692(e).36 In reversing the district court's denial of the defendant's motion to dismiss, the Ninth Circuit held "that communications directed solely to a debtor's attorney are not actionable under the Act" and, therefore, the "letter to counsel . . . was not a prohibited collection effort and did not violate . . . [§] 1692(e)."37 Defendants contend that the Fax—as a communication directed solely to Mr. Plumb's attorney—"cannot be a basis for a claim under the FDPCA" as it is "squarely within the scope of Guerrero."38 Defendants emphasize the Ninth Circuit's observations in Guerrero that the FDCPA treats a consumer separately from a consumer's attorney,39 that the FDCPA is intended to prevent "harassment, deception, and other abuse," and that "when an attorney is interposed as an intermediary between a debt collectorand a consumer, [a court] assume[s] the attorney, rather than the FDCPA, will protect the consumer from a debt collector's fraudulent or harassing behavior."40
In his opposition to Defendants' motion, Plaintiff maintains that the Fax falls within a narrow...
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