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Diosmeris Espinal v. West

November 22, 2011

DIOSMERIS ESPINAL,
PLAINTIFF,
v.
WEST ASSET MANAGEMENT, INC., DEFENDANT



The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.

OPINION

I. Introduction

Plaintiff Diosmeris Espinal brought a complaint in state court against defendant West Asset Management, Inc. for violations of the Fair Debt Collection Practices Act ("FDCPA"). Defendant removed the case to federal district court and filed this motion to dismiss.

II. Facts and Procedural History

The facts asserted in plaintiff's complaint are sparse. The complaint alleges that plaintiff is a "consumer" within the meaning of the FDCPA and that defendant is a "debt collector" within the meaning of the FDCPA. (Id. ¶¶ 2--5.)

The complaint concedes that defendant "attempted to collect a debt that falls within the definition of ‗debt' for the purposes of 15 U.S.C. § 1692a(5)." (Id. ¶ 6.) On an unspecified date, according to the complaint, defendant sent a letter to plaintiff stating "that the original creditor has ‗assigned' the account to [defendant] ‗to assist you in resolving the outstanding balance.'" (Id. ¶ 7.) This constitutes the entirety of plaintiff's assertions regarding the contents of the letter, which was not attached as an exhibit to the complaint. The complaint describes the letter as "intentionally ambiguous and . . . intended to be deceptive regarding [defendant's] role and the current debt ownership status of the original creditor," and asserts that defendant "is misrepresenting the amount owed, if indeed any debt exists." (Id. ¶¶ 8--9.)

It must be noted that plaintiff has not filed timely opposition to this motion. Local Civil Rule 7.1(b)(1) provides that "[u]nless a Judge or Magistrate Judge advises the attorneys otherwise, all motions, regardless of their complexity and the relief sought, shall be presented and defended in the manner set forth in L. Civ. R. 7.1." Rule 7.3(c)(1) makes clear that "[t]he regular motion days for all vicinages are set forth in L. Civ. R. 78.1." Moreover, Rule 7.1(d)(2) states that opposition papers "must be filed with the Clerk at least 14 days prior to the original motion day, unless the Court otherwise orders, or an automatic extension is obtained pursuant to L. Civ. R. 7.1(d)(5)." Here, defendant filed a motion to dismiss on October 27, 2011, and consistent with the Local Rules, this Court set a return date for November 21, 2011. Therefore, under Local Rule 7.1(d)(2) and the chart published by the Clerk's office under Rule 78.1, plaintiff's opposition brief was due on November 7, 2011. Plaintiff did not request an extension and did not file an opposition brief until November 21, 2011. (The brief is dated November 15, 2011, but the discrepancy is irrelevant because either date is out of time.)

Nevertheless, even if this Court were to consider plaintiff's opposition, the arguments made therein do not alter this Court's analysis and conclusion.

III. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." This standard "does not require ‗detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A pleading must offer more than "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "‗naked assertion[s]' devoid of ‗further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557).

Instead, "a complaint must contain sufficient factual matter, accepted as true, to ‗state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). This means that the plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Plaintiff need not satisfy a "probability requirement" but must show "more than a sheer possibility that defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).

"[A] court must accept as true all of the allegations contained in a complaint," but that rule "is inapplicable to legal conclusions," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "Context matters in notice pleading," and a complaint fails to state a claim if "the factual detail in a complaint is so undeveloped that it does not provide a defendant with the type of notice of claim which is contemplated by Rule 8." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).

IV. Discussion

Plaintiff alleges that defendant is liable for a violation of 15 U.S.C. ยง 1692j(a), which declares it "unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so ...


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