Strand v. Diversified Collection Service, No. 03-3849.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Bye
• Citation: 380 F.3d 316
• Parties: Elizabeth STRAND, Appellant, v. DIVERSIFIED COLLECTION SERVICE, INC., a California corporation; John Doe, a/k/a Dan Miller, Appellees.
• Docket Number: No. 03-3849.
• Decision Date: 12 August 2004

Page 316

380 F.3d 316 Elizabeth STRAND, Appellant,
v.
DIVERSIFIED COLLECTION SERVICE, INC., a California corporation; John Doe, a/k/a Dan Miller, Appellees. No. 03-3849. United States Court of Appeals, Eighth Circuit. Submitted: June 16, 2004. Filed: August 12, 2004.

Appeal from the United States District Court for the District of Minnesota, Paul Magnuson, J.

David T. Redburn, Brooklyn Park, MN, argued, for appellant.

Michael A. Klutho, argued, Minneapolis, MN (Matthew J. Franken, on the brief), for appellee.

Page 317

Before LOKEN, Chief Judge, JOHN R. GIBSON, and BYE, Circuit Judges.

BYE, Circuit Judge.

Elizabeth Strand brought an action against Diversified Collection Service, Inc. (DCS), for alleged violations of the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692o. The district court¹ dismissed Ms. Strand's suit for failure to state a claim upon which relief can be granted. We affirm.

I

Within a twenty-day period in 2003, Ms. Strand received from DCS four letters (dated May 28, May 30, June 5, and June 17) attempting to collect a debt. Printed on the envelope of each letter were the terms "D.C.S., Inc." above the return address, "PERSONAL AND CONFIDENTIAL" in capital boldface type, and "IMMEDIATE REPLY REQUESTED" in capital reverse typeface. Each envelope also displayed a printed corporate logo depicting a grid with an upward-pointing arrow and the initials "DCS."

Following the receipt of the letters, Ms. Strand brought this suit, alleging DCS violated § 1692f(8) of the FDCPA. Section 1692f(8) prohibits debt collectors from using "unfair or unconscionable" conduct when attempting to collect a debt through the use of "any language or symbols, other than the debt collector's address, on any envelope when communicating with a consumer by use of mails ... except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business."

Pursuant to Federal Rule of Civil Procedure 12(b)(6), DCS brought a motion to dismiss Ms. Strand's claim. The district court granted the motion, declining to adopt a strict reading of § 1692f(8). The court reasoned the letters and symbols on the envelopes were benign insofar as they did not reveal they pertained to a debt collection. For the following reasons, we agree and therefore affirm.

II

We review de novo a district court's decision to grant a motion to dismiss. Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir.2002). Under Rule 12(b)(6), we must accept Ms. Strand's factual allegations as true and grant every reasonable inference in her favor. Id. at 464; Fed.R.Civ.P. 12(b)(6). A motion to dismiss should be granted "as a practical matter ... only in the unusual case in which a plaintiff includes allegations that show, on the face of the complaint, that there is some insuperable bar to relief." Frey v. Herculaneum, 44 F.3d 667, 671 (8th Cir.1995) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.1974)). At the very least, however, the complaint must contain facts which state a claim as a matter of law and must not be conclusory. Id.

A violation of the FDCPA is reviewed utilizing the unsophisticated-consumer standard which is "designed to protect consumers of below average sophistication or intelligence without having the standard tied to `the very last rung on the sophistication ladder.'" Duffy v. Landberg, 215 F.3d 871, 874 (8th Cir.2000) (quoting Taylor v. Perrin, Landry, deLaunay & Durand, 103 F.3d 1232, 1236 (5th Cir.1997)). This standard protects the uninformed or naive consumer, yet

Page 318

also contains an objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collection letters. Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1054-1055 (8th Cir.2002).

Section 1692f, in pertinent part, states:

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

...

(8) Using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use...