The opinion of the court was delivered by: Linares, District Judge.
This matter comes before the Court by way of a motion to dismiss Plaintiff Juan Muralles' ("Plaintiff" or "Muralles") action by Defendant Client Services, Inc. ("Defendant" or "Client Services"), pursuant to Federal Rule of Civil Procedure 12(b)(6) [Docket Entry No.3 ]. The Court has considered the submissions made in support of and in opposition to the instant motion and decides the matter without oral argument. Fed. R. Civ. P. 78. Plaintiff's claims arise out of Defendant's attempts to collect a consumer debt. Defendant seeks to dismiss all Fair Debt Collection Practices Act ("FDCPA") claims asserted in Plaintiff's Complaint, which claims are brought under the FDCPA, 15 U.S.C. § 1692, et seq. Defendant does not mention Plaintiff's claims under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et. seq., so this Opinion will not consider them for the purposes of Defendant's motion to dismiss.
For the reasons that follow, Defendant's motion to dismiss is granted in part and denied in part. Plaintiff's claims for furnishing deceptive forms under § 1692j of the FDCPA are dismissed without prejudice. Plaintiff has thirty (30) days in which to amend such claims to cure the pleading deficiencies addressed herein. Plaintiff's §§ 1692c and 1692g of the FDCPA as well as its claim under § 1681s-2 of the FCRA may proceed at this time.
Plaintiff's Complaint states that on June 16, 2010, Defendant Client Services sent Plaintiff an initial contact letter which named Credit First National Association ("CFNA"), Plaintiff's original creditor, as a creditor to Plaintiff's debt. (Compl., ¶¶ 8-10). Prior to receipt of Defendant Client Services' letter, Plaintiff's counsel had sent a client representation letter to Plaintiff's original creditor, Credit First National Association. (Id. at ¶ 9). Plaintiff alleges that the terms used in the letter placed Defendant Client Services in violation of the FDCPA in two respects: 1) it was a communication in connection with debt collection with the Plaintiff when the debt collector knew or should have known Plaintiff was represented by an attorney with respect to such debt (§ 1692c); and 2) the communication was unlawfully designed and furnished to create a false belief in Plaintiff that a person other than the creditor of Plaintiff was participating in the collection when in fact such collector was not so participating (§ 1692j).
Subsequent to receiving Defendant's initial contact letter, Plaintiff sent a letter responding to Defendant to dispute the debt ("disputation letter")(Id. at ¶ 13). Despite Plaintiff having sent this letter, Defendant Client Services failed to validate the debt with Plaintiff while continuing to charge interest and other assorted fees. (Id. at ¶ 14). This failure to validate, Plaintiff alleges, constituted a violation of the FDCPA.
Separate from its FDCPA claim, Plaintiff also alleges facts in violation of the FCRA.
After Plaintiff sent the disputation letter to Defendant Client Services, Client Services and/or Credit First National Association furnished credit information to a credit reporting agency which did not reflect the existence of Plaintiff's claimed dispute. (Id. at ¶ 13, 4). That Defendant made inaccurate or incomplete reporting to consumer reporting agencies is alleged by Plaintiff to be in violation of § 1681s-2 of the FCRA (Id. at 4).
Defendant now moves to dismiss Plaintiffs' cause of action generally as to all FDCPA claims, and more specifically as regards Defendant's failure to advise whether Defendant was assigned or purchased Plaintiff's debt under FDCPA § 1692g. Defendant does not address Plaintiff's inaccurate or incomplete reporting claim under § 1681s-2 of the FCRA.
For a complaint to survive dismissal, it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard is not akin to a "'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully"; mere consistency with liability is insufficient. Id. In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[;] [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.
Additionally, in evaluating a plaintiff's claims, generally "a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). It may not take into account additional facts asserted in a memorandum opposing such a motion to dismiss since such memoranda do not constitute pleadings under Federal Rule of Civil Procedure 7(a). Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988).
The burden of proof for showing that no claim has been stated is on the moving party. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005)(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). During a Court's threshold review, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir. 2002). In general, the Federal Rules of Civil Procedure should be construed liberally so as to encourage ruling on the merits instead of technicalities: "This liberality is expressed throughout the Federal Rules of Civil Procedure and is enshrined in a long and distinguished history . . . . An inadvertant mistake in pleading will not be held against the pleader if another party has not been misled by the mistake or otherwise prejudiced." Lundy v. Adamar of New Jersey, 34 F.3d 1173, 1186 (3d Cir. 1994). Further, courts will not dismiss for failure to state a claim merely because the complaint miscategorizes legal theories or ...