UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PAUL A. MAHON, : : Plaintiff, : : Civil Action No.: 15-1227 (RC) v. : : Re Document Nos.: 13, 20 ANESTHESIA BUSINESS : CONSULTANTS, LLC, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

I. INTRODUCTION

Bringing claims under the federal Fair Debt Collection Practices Act (“FDCPA”) and the

District of Columbia debt collection statute, Plaintiff Paul A. Mahon alleges that Defendant

Anesthesia Business Consultants, LLC (“ABC”) continued to pursue payment of a debt

Mr. Mahon had already paid. ABC moves to dismiss Mr. Mahon’s claims. ABC argues that it is

not a debt collector subject to the FDCPA and that Mr. Mahon’s debt did not arise from a

consumer credit sale, which is a prerequisite for liability under the District of Columbia debt

collection statute. The Court agrees with ABC’s FDCPA assertions and will accordingly dismiss

Mr. Mahon’s federal claims. The Court will dismiss Mr. Mahon’s remaining claims without

prejudice, because those claims present a novel question of local law over which this Court’s

exercise of supplemental jurisdiction would be inappropriate. The Court will also deny

Mr. Mahon’s motion for leave to amend his complaint, because Mr. Mahon’s proposed

amendment would not save his claims from dismissal. II. BACKGROUND1

According to the complaint, Plaintiff Paul A. Mahon incurred a $1320.00 medical debt on

March 20, 2014, for anesthesia administered to him at Sibley Memorial Hospital in Washington,

D.C., by a company named Certified Anesthesia Services. First Am. Compl. ¶ 21, ECF No. 16;

id. Ex. 1, ECF No. 16-1. “[A]t the time he received the anesthesia services,” Mr. Mahon believes

that he signed an agreement “acknowledging financial responsibility for the debt in its entirety,

authorizing the debt-holder to bill his medical insurance company, and agreeing to pay any

amount of the debt not paid by his medical insurance plan.” Id. ¶ 23.

Afterward, Certified Anesthesia Services “sold, assigned, transferred, or placed” the debt

with Defendant Anesthesia Business Consultants, LLC (“ABC”) “for the purpose of collecting

payment.” Id. ¶ 24. ABC received a partial payment of $1207.94 from Mr. Mahon’s primary

medical insurance provider, Cigna, on April 16, 2014. Id. ¶ 25. ABC then billed Mr. Mahon for

the amount that remained outstanding ($112.06). Id. ¶ 26; id. Ex. 1 (reproducing ABC’s bill).

1 Contemporaneously with his brief opposing ABC’s motion to dismiss, Mr. Mahon filed a First Amended Complaint. See First Am. Compl., ECF No. 16. See generally Mot. Dismiss Pursuant to Rule 12(b)(6), ECF No. 13 [hereinafter Def.’s Mot.]; Pl.’s Resp. Opp’n Def. ABC’s Mot. Dismiss Pursuant to Rule 12(b)(6), ECF No. 17 [hereinafter Pl.’s Opp’n]. Because “[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a motion under Rule 12(b),” Fed. R. Civ. P. 15(a), the First Amended Complaint is the operative complaint here. See Def.’s Mot. 2 (indicating that ABC served its Rule 12(b) motion on October 13, 2015); First Am. Compl. (showing that Mr. Mahon filed his First Amended Complaint on October 27, 2015, or fourteen days after ABC served its motion to dismiss). The Court therefore cites principally to the First Amended Complaint in this Part and presumes that Mr. Mahon’s factual allegations in that complaint are true. See United States v. Philip Morris, Inc.,

(D.D.C. 2000) (“At the motion to dismiss stage, ‘the only relevant factual allegations are the plaintiffs’,’ and they must be presumed to be true.” (quoting Ramirez de Arellano v. Weinberger,

(D.C. Cir. 1984))). Although the First Amended Complaint names Suburban Credit Corporation of Virginia, Inc. (“SCC”) as an additional defendant, SCC has since settled with Mr. Mahon and is no longer a defendant in this case. See Stipulation of Dismissal with Prejudice, ECF No. 27. The Court thus omits discussion of facts and claims relevant to SCC.

2 ABC’s bill asked Mr. Mahon to address his payment check to “Surgical and Anes Assoc.”

Ex. 1. With a check dated May 6, 2014 and made out to “Surgical & Anes Assoc,” Mr. Mahon

paid the $112.06 in full. Id. ¶ 28; id. Ex. 3, ECF No. 16-3 (reproducing Mr. Mahon’s check).

ABC deposited Mr. Mahon’s check on May 12, 2014. Id. ¶ 28; id. Ex. 3.

But even though Mr. Mahon had paid the outstanding balance, ABC sent Mr. Mahon a

second bill, for the same $112.06, on July 2, 2014. Id. ¶ 29; id. Ex. 4 (reproducing the July 2,

2014 bill). Again, ABC’s bill asked Mr. Mahon to address his payment check to “Surgical and

Anes Assoc.” Id. Ex. 4, ECF No. 16-4. The bill’s sender was likewise labeled as “Surgical and

Anes Assoc.” Id. ¶ 30; id. Ex. 4. In addition to the written bill, ABC also called Mr. Mahon four

times in July and August 2014 and left voice messages about the asserted debt. Id. ¶ 31. Having

paid the $112.06 already, Mr. Mahon twice called ABC in July and August 2014 to dispute the

debt and to ask ABC to produce records demonstrating an unpaid bill. Id. ¶ 32.

ABC never produced any records demonstrating an unpaid bill, and in October 2014 it

instead “sold, assigned, transferred, or placed” Mr. Mahon’s account with another company for

debt collection purposes. Id. ¶ 34. Mr. Mahon asserts that ABC did not tell that company that

Mr. Mahon had disputed the debt. Id. ¶ 35.

Mr. Mahon filed suit in this Court in July 2015. See Compl., ECF No. 1. His complaint

brings claims for violations of the federal Fair Debt Collection Practices Act (“FDCPA”), 15

U.S.C. §§ 1692–1692p, and the District of Columbia debt collection statute,

. See First Am. Compl. ¶¶ 64–76. ABC moves to dismiss Mr. Mahon’s claims. See

Mot. Dismiss Pursuant to Rule 12(b)(6), ECF No. 13. With respect to Mr. Mahon’s FDCPA

claims, ABC argues that ABC is not a debt collector as defined in the FDCPA, so the Court must

dismiss the FDCPA claims because the FDCPA does not apply to ABC. Statement P. & A. Supp.

3 Mot. Dismiss Pursuant to Rule 12(b)(6), at 3–4 [hereinafter Def.’s Statement]. With respect to

Mr. Mahon’s District of Columbia statutory claims, ABC argues that Mr. Mahon’s debt did not

arise from a consumer credit sale, the presence of which is a requirement for his claims’ success

under the relevant statute, so the Court must also dismiss Mr. Mahon’s District of Columbia

statutory claims.

at 4–6.2

Unsurprisingly, Mr. Mahon’s opposition disagrees with ABC’s arguments. See Pl.’s

Resp. Opp’n Def. ABC’s Mot. Dismiss Pursuant to Rule 12(b)(6), at 4–10, ECF No. 17

[hereinafter Pl.’s Opp’n]. But Mr. Mahon also moves to amend his complaint “to more

accurately describe the relationship between Defendant ABC and C[ertified] A[nesthesia]

S[ervices], the party that originated the debt” and “to more fully lay out its claim against

Defendant ABC on that basis.” Pl.’s Mot. Leave Amend Compl. Pursuant to Rule 15(a)(2), at 2,

ECF No. 20 [hereinafter Pl.’s Mot. Leave]. The Court addresses each pending motion in turn.

III. ABC’S MOTION TO DISMISS

A. Legal Standard

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus,

(2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate

2 ABC’s motion to dismiss also argues that the Court must dismiss one of Mr. Mahon’s FDCPA claims because Mr. Mahon never disputed his debt in writing. See Def.’s Statement 6–7 (arguing for dismissal of Mr. Mahon’s claim under 15 U.S.C. § 1692g). Because Mr. Mahon’s amended complaint omits that claim, the Court need not discuss the merits of this argument. Compare Compl. ¶ 68 (charging ABC with a violation of 15 U.S.C. § 1692g(b)), with First Am. Compl. ¶¶ 64–71 (omitting the § 1692g claim against ABC). In any event, as discussed below, all of Mr. Mahon’s FDCPA claims must be dismissed because ABC is not a debt collector subject to the FDCPA. See infra Part III.B.

4 likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

See Scheuer v. Rhodes,

(1974); Brewer v. District of Columbia,

(D.D.C. 2012). A court considering such a motion presumes that the complaint’s

factual allegations are true and construes them liberally in the plaintiff’s favor. See, e.g., United

States v. Philip Morris, Inc.,

(D.D.C. 2000). It is not necessary for the

plaintiff to plead all elements of his prima facie case in the complaint. See Swierkiewicz v.

Sorema N.A.,

, 511–14 (2002); Bryant v. Pepco,

, 28–29 (D.D.C.

2010).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief

above the speculative level on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations and footnote omitted).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal,

. A

court need not accept a plaintiff’s legal conclusions as true, see

nor must a court presume the

veracity of the legal conclusions that are couched as factual allegations, see Twombly,

.3

3 In deciding a motion to dismiss under Rule 12(b)(6), a court may not rely on matters outside the pleadings without converting the motion to one for summary judgment, Fed. R. Civ. P. 12(d), though it may consider documents attached to the complaint as exhibits, documents incorporated by reference, and matters on which the court may take judicial notice, Abhe & Svoboda, Inc. v. Chao,

(D.C. Cir. 2007).

5 B. Fair Debt Collection Practices Act Claims

The federal Fair Debt Collection Practices Act (“FDCPA”) aims “to eliminate abusive

debt collection practices by debt collectors, to insure that those debt collectors who refrain from

using abusive debt collection practices are not competitively disadvantaged, and to promote

consistent State action to protect consumers against debt collection abuses.”

(e).

See generally Fair Debt Collection Practices Act,

Stat. 874 (1977)

(codified as amended at 15 U.S.C. §§ 1692–1692p). Its provisions govern debt collectors’

acquisition of location information, debt-related communications and representations,

debt-related conduct, and debt validation. See 15 U.S.C. §§ 1692b–1692g. The FDCPA also

makes debt collectors who violate its provisions civilly liable for actual damages, statutory

damages, and attorney’s fees and costs. See id. § 1692k(a).

But the FDCPA’s reach is limited. Its substantive provisions apply only to “debt

collectors,” as defined under the statute. See id. § 1692a(6) (defining “debt collector” for FDCPA

purposes); see, e.g., id. § 1692e (“A debt collector may not use any false, deceptive or

ABC has attached an internet page to its reply in support of its motion. See Reply Mem. Pl.’s Resp. Opp’n Def.’s Mot. Dismiss Ex. A, ECF No. 18-1; see also Def.’s Statement 1 (referring to ABC’s “Exhibit A,” and asserting that Exhibit A reproduces the homepage of a private physician practice group called “Surgical Anesthesia Associates, PLLC”); Reply Mem. Pl.’s Resp. Opp’n Def.’s Mot. Dismiss 4 n.2, ECF No. 18 (explaining that, because ABC neglected to attach its Exhibit A to its motion to dismiss, ABC attached Exhibit A to its reply). [hereinafter Def.’s Reply]. Although internet pages may be judicially noticeable, see, e.g., Spy Optic, Inc. v. Alibaba.Com, Inc., No. 15-0659,

(C.D. Cal. Sept. 28, 2015), the Court declines to take judicial notice of ABC’s Exhibit A. Because ABC belatedly produced Exhibit A in its reply, instead of in its motion to dismiss, Mr. Mahon never received an opportunity to respond to Exhibit A in his opposition brief. See generally Fed. R. Evid. R. 201(e) (explaining that, in general, “a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed”). The Court accordingly will not consider Exhibit A in its analysis of ABC’s motion to dismiss. The Court also does not rely on the billing service agreement ABC produced in its opposition to Mr. Mahon’s motion for leave to file a second amended complaint. See Obj. Pl.’s Mot. Leave Amend Compl. Pursuant to Rule 15(a)(2), Ex. A, ECF No. 21-1.

6 misleading representation . . . .” (emphasis added));

§ 1692g(b) “If the consumer notifies the

debt collector in writing . . . that the debt . . . is disputed . . . , the debt collector shall cease

collection of the debt . . . until the debt collector obtains verification of the debt . . . .” (emphasis

added)). To fall within the act’s prescriptions, therefore, an entity must meet the criteria

identified in the FDCPA’s “long and somewhat convoluted definition of the term ‘debt

collector.’” Wadlington v. Credit Acceptance Corp.,

(6th Cir. 1996).

The FDCPA initially defines “debt collector” to include “any person who uses . . .

interstate commerce or the mails in . . . the collection of any debts” and “any person . . . who

regularly . . . attempts to collect . . . debts owed or due . . . another.” 15 U.S.C. § 1692a(6).

Working from this presumptive definition, the FDCPA both adds to and subtracts from it.

First, the FDCPA adds to the set of “debt collectors” covered by declaring that “the term

includes any creditor who, in the process of collecting his own debts, uses any name other than

his own which would indicate that a third person is collecting . . . such debts.” Id. This “so-called

false name exception” is “a departure from the general rule that creditors are not subject to the

FDCPA.” Vincent v. Money Store,

(2d Cir. 2013).

Second, the FDCPA subtracts from its initial “debt collector” definition by excluding six

categories of possible “debt collectors.” See 15 U.S.C. § 1692a(6)(A)–(F). The one relevant

here—the sixth category—declares that “debt collector” does not include, among other persons,

“any person collecting . . . any debt . . . asserted to be owed or due another to the extent such

activity . . . concerns a debt which was not in default at the time it was obtained by such

person . . . .” Id. § 1692a(6)(F)(iii). In other words, if the alleged debt collector “was handling

the [debt] before it went into default, it is not a debt collector” under the FDCPA. Parker v. BAC

Home Loans Servicing LP,

(D.D.C. 2011); accord Wadlington,

7 107 (holding that the defendant was a creditor, not a debt collector, under the FDCPA, because

“the debts in question . . . were not ‘in default’” when the defendant received them); Perry v.

Stewart Title Co.,

(5th Cir. 1985) (“[A] debt collector does not include the

consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt

was not in default at the time it was assigned.”).

Here, ABC falls squarely within the sixth category of possible “debt collectors” excluded

from the “debt collector” definition, because it began handling Mr. Mahon’s medical debt when

it was not in default. “[T]he FDCPA does not define so key a term as ‘default[,]’” Alibrandi v.

Fin. Outsourcing Servs.,

(2d Cir. 2003), so courts must typically “look to any

underlying contracts and applicable law governing the debt at issue” to decide whether a debt is

in default, De Dios v. Int’l Realty & Invs.,

(9th Cir. 2011). Federal

regulations, for instance, “have defined default as commencing anywhere between 30 and 270

days after a debt becomes due.” Alibrandi,

(noting, for various kinds of debts,

pre-default periods of 30, 90, 180, and 270 days set by federal regulation).

But even without clear guidance about what a debt “in default” is under the FDCPA, it is

clear what a debt “in default” is not: a debt that has just become due. “[C]ourts have repeatedly

distinguished between a debt that is in default and a debt that is merely outstanding, emphasizing

that only after some period of time does an outstanding debt go into default.”

(footnote

omitted) (citing Skerry v. Mass. Higher Educ. Assistance Corp.,

(D. Mass.

1999); Jones v. Intuition, Inc.,

(W.D. Tenn. 1998)). The Second Circuit

has expressly rejected “the proposition that default occurs immediately after a debt becomes

due.” Id. at 87. In justifying that rejection, the Second Circuit noted that, if default occurs

immediately after payment becomes due, then payments’ due dates would “immediately expos[e]

8 debtors to the sort of adverse measures, such as acceleration, repossession, increased interest

rates, and negative reports to credit bureaus, from which the Act intended to afford debtors a

measure of protection.” Id.

Thus, if ABC began handling Mr. Mahon’s medical debt before it became due, then ABC

must have obtained the debt when the debt was not in default. The exhibit Mr. Mahon attached to

his complaint shows that this was the case: in the bill Mr. Mahon first received from ABC, ABC

did not include any language stating that Mr. Mahon’s debt was in default; ABC simply stated

that “[b]ills are due and payable when rendered.” See First Am. Compl. ¶ 26; id. Ex. 1, at 2. And

Mr. Mahon’s complaint does not allege that his debt was in default. See id. ¶¶ 21–26. Instead, it

establishes a concise timeline, in which (1) Mr. Mahon received services on March 20, 2014;

(2) the service provider “sold, assigned, transferred, or placed” his account with ABC for

payment collection; (3) ABC billed Mr. Mahon for his debt; (4) Mr. Mahon mailed his payment

to ABC on May 6, 2014; and (5) ABC deposited the check on May 12, 2014. Id. ¶¶ 21–28.

Under this timeline, ABC must have begun handling Mr. Mahon’s debt before the issuance of his

very first bill, which was sometime before May 6, 2014—in other words, before the debt became

due. Because ABC was therefore “collecting . . . a debt which was not in default at the time it

was obtained” by ABC, the FDCPA expressly excludes ABC from the set of “debt collectors”

governed by the FDCPA’s provisions. 15 U.S.C. § 1692a(6)(F).

Mr. Mahon does not attempt to rebut this argument. See Pl.’s Opp’n 4–6. Instead, he

argues that “ABC is a ‘debt collector’ under the FDCPA because it used a false name[,] ‘Surgical

and Anes Assoc,’ in the process of collecting its debts.” Id. at 4. In this manner, Mr. Mahon

implicitly concedes that ABC is a “creditor,” not a “debt collector”—but he argues that ABC is a

creditor subject to the “false name exception,” through which the FDCPA extends the scope of

9 its application to a creditor “who, in the process of collecting [its] own debts, uses any name

other than [its] own which would indicate that a third person is collecting or attempting to collect

such debts.” 15 U.S.C. § 1692a(6); see Pl.’s Opp’n 4–6.

Mr. Mahon has not, however, alleged facts that show that ABC satisfies each statutory

element required for the false name exception to apply. “The text of the exception . . . sets forth

three elements that must be satisfied before deeming a creditor a debt collector pursuant to the

false name exception: (1) the creditor is collecting its own debts; (2) the creditor ‘uses’ a name

other than its own; and (3) the creditor’s use of that name falsely indicates that a third person is

‘collecting or attempting to collect’ the debts that the creditor is collecting.” Vincent v. Money

Store,

(2d Cir. 2013); see 15 U.S.C. § 1692a(6). Although, as characterized in

Mr. Mahon’s complaint, ABC satisfies the first two elements, the third statutory element is

missing here. The Court addresses each element in turn.

With respect to the first element, ABC is indeed a creditor collecting its own debts. As

discussed above, ABC is not a “debt collector” under the FDCPA. ABC is therefore a creditor

under the FDCPA. See Bridge v. Ocwen Fed. Bank, FSB,

(6th Cir. 2012)

(explaining that “an entity that did not originate the debt in question but acquired it and attempts

to collect on it . . . is either a creditor or a debt collector depending on the default status of the

debt at the time it was acquired”).

Although ABC contends that the “either a creditor, or else a debt collector” dichotomy

for companies like itself is a “false syllogism,” Reply Mem. Pl.’s Resp. Opp’n Def.’s Mot.

Dismiss 2, ECF No. 18 [hereinafter Def.’s Reply], an entity that acquires a debt and seeks to

collect it cannot be neither a creditor nor a debt collector. Bridge,

. “To allow

such an entity to define itself out of either category would mean that the intended protection of

10 the FDCPA is unavailable.”

Thus, for instance, “a loan servicer . . . can either stand in the

shoes of a creditor or become a debt collector, depending on whether the debt was assigned for

servicing before the default or alleged default occurred.”

(citing Wadlington v. Credit

Acceptance Corp.,

, 106–08 (6th Cir. 1996); Perry v. Stewart Title Co.,

(5th Cir. 1985)). Put another way,

[i]f the one who acquired the debt continues to service it, it is acting much like the original creditor that created the debt. On the other hand, if it simply acquires the debt for collection, it is acting more like a debt collector. To distinguish between these two possibilities, the Act uses the status of the debt at the time of the assignment[.] . . . [T]he Act treats assignees as debt collectors if the debt sought to be collected was in default when acquired by the assignee, and as creditors if it was not.

Schlosser v. Fairbanks Capital Corp.,

(7th Cir. 2003); accord FTC v. Check

Inv’rs, Inc.,

(3d Cir. 2007).

The dichotomy between debt collectors and creditors delineates who qualifies as an

FDCPA “creditor” in general, as well as who qualifies as a “creditor” under the false name

exception to the FDCPA’s “debt collector” definition:

The same [principle] is true of a creditor who uses any name other than his own which would indicate that a third person is attempting to collect the debt. No such creditor may escape liability by alleging that it is neither a creditor nor a debt collector and thus not subject to the FDCPA.

Bridge,

(citation omitted).

Here, as discussed above, ABC cannot be a “debt collector” under the FDCPA because it

obtained Mr. Mahon’s medical debt when that debt was not in default. Instead, ABC was “acting

much like the original creditor that created the debt,” Schlosser,

.4 Under the false

4 Hence, ABC incorrectly argues that it was “not a creditor collecting its own debts because it is actually a billing service company that issued an invoice for a non-defaulted debt.” Def.’s Reply 2.

11 name exception, therefore, if ABC used a name other than its own “which would indicate that a

third person [was] . . . attempting to collect the debt,” then ABC could still be subject to the

FDCPA, even though it was not acting as a “debt collector.” See 15 U.S.C. § 1692a(6).

Having decided that ABC is a “creditor collecting its own debts” and thus satisfies the

first element required to invoke the FDCPA’s false name exception, the Court now turns to the

second and third elements: (2) whether “the creditor ‘uses’ a name other than its own,” and

(3) whether “the creditor’s use of that name falsely indicates that a third person is ‘collecting or

attempting to collect’ the debts that the creditor is collecting.” Vincent v. Money Store,

(2d Cir. 2013).

With respect to the second element, the complaint alleges that ABC used a name other

than its own—“Surgical and Anes Assoc”—in the process of collecting the balance of

Mr. Mahon’s medical debt. See First Am. Compl. ¶¶ 26, 29–30;

Exs. 1, 4, ECF Nos. 16-1,

16-4. ABC does not dispute that its use of that name satisfies the second element of the

false-name-exception analysis. See Def.’s Reply 2–6.

With respect to the third element, however, even though ABC was a creditor collecting

its own debts and using a name other than its own, the facts in Mr. Mahon’s complaint do not

show that ABC was using an alternative name that “would indicate that a third person is

collecting or attempting to collect such debts.” 15 U.S.C. § 1692a(6). This missing element is

fatal to Mr. Mahon’s FDCPA claims.

To avoid FDCPA coverage under the false name exception, a creditor “should use ‘the

name under which it usually transacts business, or a commonly-used acronym,’ or any name that

it has used from the inception of the credit relation.” Maguire v. Citicorp Retail Servs., Inc.,

(2d Cir. 1998) (citations omitted) (quoting Federal Trade Commission Staff

12 Commentary on the FDCPA,

, 50,107 (Dec. 13, 1988)). The creditor “need

not use its full business name or its name of incorporation.” Id.; accord Gutierrez v. AT&T

Broadband, LLC,

(7th Cir. 2004); Rollo v. Chase Home Fin. LLC,

No. 12-2914,

, at *4 (S.D. Tex. Apr. 4, 2013); Dickenson v. Townside T.V. &

Appliance,

(S.D. W. Va. 1990). Because the purpose of the false name

exception is “to keep the debtor from being deceived into believing some third party other than

the creditor with whom [he] has been dealing has been enlisted to collect the debt,” Leggett v.

Louis Capra & Assocs., LLC, No. 13-5847,

, at *10 (N.D. Ill. Apr. 10, 2015),

“[d]efendants may use assumed names for debt collection, so long as defendants are consistent in

using the assumed name to avoid consumer confusion,” Everst v. Credit Prot. Ass’n, L.P.,

No. 01-7025,

, at *4 (N.D. Ill. Aug. 25, 2003). Accord Leasure v. Willmark

Cmtys., Inc., No. 11-0443,

, at *3 (S.D. Cal. Mar. 14, 2013); Wolfe v. Bank

One Corp.,

, 847–48 (N.D. Ohio 2005). To determine whether a debtor

would be deceived, the Court must evaluate “whether the ‘least sophisticated consumer’ would

be deceived by the collection practice.” Maguire,

; accord Nrivnak v. NCO

Portfolio Mgmt.,

(N.D. Ohio 2014).

Here, when ABC began its credit relationship with Mr. Mahon, it used the name

“Surgical and Anes Assoc” to bill him for the $112.06 debt. See First Am. Compl. ¶ 26;

Ex. 1

(directing Mr. Mahon to address his payment to “Surgical and Anes Assoc”). When ABC sent

Mr. Mahon a second bill, ABC continued to use the name “Surgical and Anes Assoc.”

¶¶ 29–30;

Ex. 4 (also designating “Surgical and Anes Assoc” as the payee). And in the later

telephone calls between ABC and Mr. Mahon, Mr. Mahon does not allege that ABC

inconsistently used its assumed name. See

¶¶ 31–32.

13 Indeed, “Anesthesia Business Associates, LLC” never appears on the complaint’s

reproductions of ABC’s bills. See

Exs. 1, 4. Nor does Mr. Mahon allege that he was ever

confused by ABC’s use of the name “Surgical and Anes Assoc.” See

¶¶ 25–33; Pl.’s Opp’n

4–6. See generally Franceschi v. Mautner–Glick Corp.,

(S.D.N.Y.

1998) (noting that the plaintiff did not “even allege that he suffered confusion” about the

relationship between the alleged debt collector and the creditor, and finding the false name

exception inapplicable). On these facts, ABC consistently used the name “Surgical and Anes

Assoc” throughout its dealings with Mr. Mahon.

“Surgical and Anes Assoc” was thus “the only party of whom [Mr. Mahon] was aware

and was the entity to which he believed he owed the debt.” Gutierrez,

(holding,

in a case with similar facts, that the defendant did not fall under the false name exception’s

ambit). Even the “least sophisticated consumer” would not think that “some third party” other

than the creditor (which, to Mr. Mahon, had always been “Surgical and Anes Assoc”) was

enlisted to collect the debt. Leggett,

, at *10. In fact, it “would have created

more confusion” if ABC “started listing itself . . . as [Mr. Mahon’s] creditor instead of the name

in which all other business had been transacted.” Gutierrez,

.5

5 ABC’s bills also lack any reference to “Certified Anesthesia Associates,” which, according to Mr. Mahon’s complaint, originated his medical debt. See First Am. Compl. ¶ 21;

Exs. 1, 4. Thus, as with ABC and “Surgical and Anes Assoc,” the least sophisticated consumer would not have suffered confusion about the relationship between Certified Anesthesia Associates and ABC (or “Surgical and Anes Assoc,” the name by which ABC was known to Mr. Mahon). When a complaint “alleges that [the plaintiff] simply didn’t know the entity to which he incurred the debt, because its name was undisclosed . . . , and then a bill was later received from, and harassing calls were made by, [the defendant],” the plaintiff fails to state a claim under the FDCPA. A.W. v. Preferred Platinum Plan, Inc.,

(D. Minn. 2013).

14 Because ABC always corresponded with Mr. Mahon using the “name that it has used

from the inception of the credit relation,” the false name exception does not apply to ABC.

Maguire v. Citicorp Retail Servs.,

(2d Cir. 1998). ABC thus is not a “debt

collector” under the FDCPA for two reasons: (1) it obtained Mr. Mahon’s debt when it was not

in default, and (2) it is not a creditor “who, in the process of collecting his own debts, uses any

name other than his own which would indicate that a third person is collecting or attempting to

collect such debts.” 15 U.S.C. § 1692a(6). Because Mr. Mahon’s FDCPA claims against ABC

can only proceed against a “debt collector,” they must be dismissed. See id. § 1692e (“A debt

collector may not use any false, deceptive, or misleading representation or means in connection

with the collection of any debt.” (emphasis added)); First Am. Compl. ¶¶ 66, 67, 69 (asserting

FDCPA claims against ABC under § 1692e).

C. Claims Under the District of Columbia Debt Collection Statute

The Court now turns to Mr. Mahon’s claims under the District of Columbia debt

collection statute,

. Mr. Mahon asserts that this Court has jurisdiction over

these claims under the federal supplemental jurisdiction statute,

. First Am.

Compl. ¶ 3. Mr. Mahon does not assert that this Court has diversity jurisdiction over these claims

under

. First Am. Compl. ¶¶ 3–6. Nor does it appear that the amount these

claims put in controversy exceeds $75,000, the amount in controversy which § 1332 requires to

establish diversity jurisdiction. See

(a); First Am. Compl. 11 (asserting, under

District of Columbia statutes, statutory damages in the amount of $100.00, as well as actual

damages, punitive damages, and reasonable attorney’s fees, but without specifying whether the

amount in controversy exceeds $75,000). Supplemental jurisdiction under § 1367 thus provides

the sole source of federal jurisdiction over Mr. Mahon’s District of Columbia statutory claims.

15 The Court has discretion to decline to exercise that jurisdiction. See

(c) (“The

district courts may decline to exercise supplemental jurisdiction . . . if . . . the claim raises a

novel or complex issue of State law, . . . [or] the district court has dismissed all claims over

which it has original jurisdiction . . . .”).

Having determined that Mr. Mahon’s federal claims must be dismissed, the Court

declines to exercise supplemental jurisdiction over the remaining District of Columbia statutory

claims. See Shekoyan v. Sibley Int’l,

(D.C. Cir. 2005) (“[I]n the usual case in

which all federal-law claims are dismissed before trial, the balance of factors to be considered

under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—

will point toward declining to exercise jurisdiction over the remaining state-law claims.”

(alteration in original) (internal quotation marks omitted)). And supplemental jurisdiction is

doubly inappropriate here, given how few cases interpret the term “payable in installments” in

(2), an issue on which the parties focus their briefing. See Def.’s Statement

5–6 (arguing that Mr. Mahon’s medical debt cannot be a “consumer credit sale” covered by

because it was not “payable in installments”); Pl.’s Opp’n 6–9 & n.3; Def.’s

Reply 6–7. The Court is aware of just two opinions from the District of Columbia Court of

Appeals bearing on this issue, and even those opinions reach the issue only in dicta. See Wetzel v.

Capital City Real Estate, LLC,

, 1003 n.3 (D.C. 2013); Sterling Mirror of Md., Inc.

v. Gordon,

(D.C. 1993). Because Mr. Mahon’s District of Columbia statutory

claims present a novel question of local law, the Court declines to exercise supplemental

jurisdiction over these claims and will dismiss them without prejudice so that Mr. Mahon, if he

chooses, can bring them before a District of Columbia court for adjudication on the merits. See

generally

(c)(1); Carnegie-Mellon Univ. v. Cohill,

(1988)

16 (“When . . . the federal-law claims have dropped out of the lawsuit in its early stages and only

state-law claims remain, the federal court should decline the exercise of jurisdiction by

dismissing the case without prejudice.” (footnote omitted)).

IV. MR. MAHON’S MOTION FOR LEAVE TO AMEND

Under Federal Rule of Civil Procedure 15(a)(1), a party may amend his pleading once as

matter of course within twenty-one days after serving it, or twenty-one days after service of a

responsive pleading under Rule 12(b), (e) or (f). See Fed. R. Civ. P. 15(a)(1). Mr. Mahon has

already exercised this right. See First Am. Compl. After a party has already amended his

pleading once as a matter of course, he “may amend [his] pleading only with the opposing

party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Hoping to amend his

complaint once more, and not having obtained ABC’s written consent, Mr. Mahon now seeks the

Court’s leave to do so. See Pl.’s Mot. Leave.

Typically, leave to amend a complaint should be freely given “when justice so requires.”

Fed R. Civ. P. 15(a)(2). In deciding whether to allow a party to amend a complaint, however,

courts may consider “undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Harris v.

Sec’y, U.S. Dep’t of Veterans Affairs,

(D.C. Cir. 1997) (quoting Foman v.

Davis,

(1962)). “An amendment would be futile if it merely restates the same

facts as the original complaint in different terms, reasserts a claim on which the court previously

ruled, fails to state a legal theory, or could not withstand a motion to dismiss.” Robinson v.

Detroit News, Inc.,

(D.D.C. 2002).

17 Here, Mr. Mahon’s proposed second amended complaint falls into the last category of

futile amendments: it cannot withstand a motion to dismiss, for the same reasons as those

dooming his first amended complaint. As discussed above, the FDCPA claims in Mr. Mahon’s

first amended complaint must be dismissed because ABC is not a “debt collector” under the

FDCPA. See supra Part III.B. The Court’s conclusion relied on two key facts: (1) ABC obtained

Mr. Mahon’s debt when it was not in default, which means ABC is a creditor under the FDCPA,

and (2) ABC consistently used the name “Surgical and Anes Assoc” to correspond with

Mr. Mahon, which means ABC does not fall within the false name exception in the FDCPA

definition of “debt collector.” See id. Because Mr. Mahon’s proposed second amended complaint

does not alter either of these facts, it, just like the first amended complaint, does not state a claim

under the FDCPA. See Pl.’s Mot. Leave Ex. 1, ¶¶ 22–30, ECF No. 20-1 (showing Mr. Mahon’s

proposed second amended complaint, which again indicates that ABC obtained Mr. Mahon’s

debt before Mr. Mahon had ever received a bill for that debt); id. ¶¶ 28–33 (indicating that ABC

consistently used the name “Surgical and Anes Assoc” throughout its communications with

Mr. Mahon). Faced with ABC’s motion to dismiss, Mr. Mahon’s amended FDCPA claims, just

like his current FDCPA claims, would be dismissed.

For the same reasons, Mr. Mahon’s proposed second amended complaint cannot save

Mr. Mahon’s District of Columbia statutory claims from dismissal either. The proposed

complaint does not change Mr. Mahon’s legal theory under District of Columbia law—namely,

that ABC’s efforts to collect Mr. Mahon’s medical debt are actionable under the debt collection

statute,

, because the debt arose from a “consumer credit sale” that was

“payable in installments.” See Pl.’s Mot. Leave 3–4 (alleging no change in Mr. Mahon’s theory

of his case);

Ex. 1, ¶¶ 22–30 (same). As discussed before, this argument presents a novel

18 question of local law, which means that supplemental jurisdiction would be inappropriate if the

Court has already dismissed accompanying federal law claims. See supra Part III.C (discussing

supplemental jurisdiction). Faced with ABC’s motion to dismiss, the proposed second amended

complaint’s claims under the District of Columbia debt collection statute, just like the first

amended complaint’s claims under that statute, would be dismissed without prejudice. See id.

Neither the FDCPA nor the District of Columbia statutory claims in Mr. Mahon’s

proposed second amended complaint could withstand ABC’s motion to dismiss. Because his

amended complaint would be futile, the Court will deny Mr. Mahon’s motion for leave to file it.

See Harris,

(noting the futility of a proposed amended pleading as a reason to

deny leave to amend it); Robinson,

(“An amendment would be futile if

it . . . could not withstand a motion to dismiss.”).

V. CONCLUSION

For the reasons set forth above, ABC’s motion to dismiss (ECF No. 13) is GRANTED,

and Mr. Mahon’s motion for leave to file a second amended complaint (ECF No. 20) is

DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: April 13, 2016 RUDOLPH CONTRERAS United States District Judge

19