United States District Court, D. New Jersey
FITZROY POWELL, on behalf of himself and others similarly situated Plaintiff,
ALDOUS & ASSOCIATES, P.L.L.C., Defendant.
Mcnulty United States District Judge
plaintiff, Fitzroy Powell, brings this putative class action
against Aldous & Associates, P.L.L.C.
("Aldous") for alleged violations of the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C.
§ 1692 et seq., which prohibits debt collectors
from engaging in abusive, deceptive, and unfair practices.
(FAC ¶¶ 1, ll). Now before the court is the motion of
the defendant, Aldous & Associates, P.L.L.C.
("Aldous") to dismiss the first amended complaint
under Federal Rule of Civil Procedure 12(b)(6). For the
reasons stated below, the motion is granted.
Fitzroy Powell lives in Paterson, New Jersey. (FAC ¶ 6).
Before January 21, 2017, Powell entered into an agreement
with Diamond Wireless for personal wireless service. (FAC
¶¶ 15-25). Pursuant to that agreement, Powell came
to owe Diamond a debt, which was placed with Aldous for
collection. (FAC ¶¶ 27-30).
is a law firm located in Utah. (FAC ¶ 7). Aldous is in
the business of collecting debts owed to others. (FAC
¶¶ 8-9). Aldous sent Powell a letter dated January
21, 2017, which states, in relevant part:
The original creditor of this file, Diamond Wireless, has
developed an "Amnesty Program, " for seriously
delinquent accounts. Therefore, you will be permitted to
clear your obligation on your past due amount by paying 50%
of the Total Due to our office no later than April 15, 2017.
Amnesty Program amount to settle debt: $200.00. Pay now
online by going to www.aldouslegal.com and click
"Pay Now" at the top. Be sure to reference the
listed account number.
A negative credit report reflecting on your credit record may
be submitted to a credit reporting agency and will remain if
you fail to fulfill the terms of your credit obligations.
Upon receipt of this payment, your account and any negative
report to the credit bureau will be "Settled in Full,
" and you will be released from further obligation.
If you desire to pay over the phone, please contact our
office today at 1.888.221.5155. More than thirty (30) days
has passed since our first written notice to you. Currently,
your obligation is not resolved.
When payment is received your obligation will be finalized
and closed. Once paid and if you choose, you will be able to
enter into a new agreement with the original creditor.
Aldous 85 Associates, P.L.L.C.
IS AN ATTEMPT TO COLLECT A DEBT: ANY INFORMATION OBTAINED
WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A
this time, not [sic] attorney with this firm has
personally reviewed the
circumstances of your
ATTORNEYS ARE ADMITTED TO PRACTICE IN ONE OR MORE OF THE
FOLLOWING: NEW YORK**, LOUISIANA*, PENNSYLVANIA*, UTAH*
ex. A) (emphasis in original). This letter to Powell stated that
he owed $400 but could "settle" the debt for $200.
(FAC ¶¶ 38, ex. A). As of the date of the letter,
no attorney employed with Aldous was licensed to practice in
New Jersey. (FAC ¶ 41).
Powell's perspective, Aldous's use of the January 21,
2017 letter would confuse "the least sophisticated
consumer" as to whether Aldous was meaningfully involved
in the matter as an attorney. (FAC ¶ 44). The complaint
alleges that Aldous's letter falsely implies that an
attorney, acting as an attorney, is meaningfully involved in
collecting the consumer debts at issue. (FAC ¶ 46).
asserts four FDCPA violations provided for in 15 U.S.C.
§ 1692(e). They are:
(a) Using false, deceptive or misleading representations or
means in connection with the collection of a debt; [Section
(b) Threatening to take any action that cannot legally be
taken or that is not intended to be taken; [Section
(c) Using unfair or unconscionable means to collect or
attempt to collect any debt; [Section 1692(e) (10)] and
(d) Making a false representation or implication that an
attorney is meaningfully involved [Section 1692(e)(3)].
¶ 49) ([bracketed] material inserted).
filed his original complaint against Aldous on May 25, 2017.
(ECF no. 1). Aldous filed a motion to dismiss on July 19,
2017. (ECF no. 4). Powell then filed a first amended
complaint on August 17, 2017. (Herein, the "complaint,
" unless otherwise specified, refers to the first
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, if it fails to state a
claim upon which relief can be granted. The moving party
bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). In deciding a motion to dismiss under Rule 12(b)(6), a
court must take all allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
See Warth v. Seldm, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts
Inc., 140 F.3d 478, 483 (3d Cir. 1998); see also
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and formulaic recitation of
the elements of a cause of action will not do."
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Thus, the factual allegations must be sufficient to raise a
plaintiffs right to relief above a speculative level, such
that it is "plausible on its face." See
Id. at 570; see also Umland v. PLANCO Fin. Sew.,
Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
"facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). While
"[t]he plausibility standard is not akin to a
'probability requirement'... it asks for more than a
sheer possibility." Iqbal, 556 U.S. at 678.
United States Court of Appeals for the Third Circuit has
explicated the Twombly/Iqbal standard on several
occasions. See, e.g., Argueta v. U.S. Immigration &
Customs Enforcement,643 F.3d 60, 70-73 (3d Cir. 2011);
Santiago v. Warminster Twp.,629 F.3d 121, 129-30
(3d Cir. 2010). In ...