United States District Court, D. New Jersey
Christopher P. McDonnell, Esq., LAW OFFICE OF CHRISTOPHER P. McDONNELL, East Brunswick, New Jersey, Counsel for Plaintiff.
Christian M. Scheuerman, Esq., MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C., Pennsauken, New Jersey, Counsel for Defendant.
JOSEPH E. IRENAS, Senior District Judge.
Plaintiff Linda Lightfoot alleges violations of the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA). Defendant Healthcare Revenue Recovery Group, LLC (HRRG) presently moves to dismiss the FDCPA claims, Counts One through Four, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons stated herein, the Complaint does not plead sufficient facts to support a plausible conclusion that HRRG violated the FDCPA. Accordingly, the Motion to Dismiss will be granted, but Plaintiff will be given leave to file a Motion to Amend the Complaint.
The Complaint alleges the following facts.
HRRG is a debt collector under the FDCPA, 15 U.S.C. § 1692(a)(6). HRRG began contacting Lightfoot on her cellphone around January, 2014, regarding the collection of debt. Since that time, HRRG has contacted Lightfoot on her cellphone "on more than one occasion, " most recently around April, 2014. Around January, 2014, Lightfoot asked HRRG not to call her; she has asked HRRG not to call her "on more than one occasion."
During one call, HRRG threatened to take unspecified "legal action" against Lightfoot. HRRG has not taken any legal action against Lightfoot.
In order to survive a motion to dismiss, a complaint must allege facts that make a right to relief more than speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed.R.Civ.P. 8(a)(2). A court must accept all allegations in the plaintiff's complaint as true, viewing them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), but a court is not required to accept sweeping legal conclusions cast as factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The pleadings must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234.
To survive a 12(b)(6) motion under the FDCPA,
a plaintiff must plead sufficient facts showing that: "(1) he or she is a consumer' who is harmed by violations of the FDCPA; (2) the debt' arises out of a transaction entered into primarily for personal, family, or household purposes; (3) the defendant collecting the debt is a debt collector'; and (4) the defendant has violated, by act or omission, a provision of the FDCPA."
Astarita v. Solomon & Solomon, PC, No. CIV. 12-5670 WJM, 2013 WL 1694807, at *2 ...