McElveen v. Westport Recovery Corp.
McElveen v. Westport Recovery Corp.
Opinion of the Court
*1376THIS CAUSE is before the Court upon Defendants' Motion to Dismiss Class Action Complaint (the "Motion"). See ECF No. [9]. The Court has carefully considered the Motion, all supporting and opposing submissions, the record and applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is granted.
I. BACKGROUND
Plaintiff Lara McElveen ("McElveen") alleges that she incurred a debt stemming from the financing of a motor vehicle that was subsequently reduced to judgment. See ECF No. [1], at ¶ 9. After the debt went into default, Defendant Westport Recovery Corp. ("Westport") acquired the debt and garnished Plaintiff's wages. See Id. at ¶¶ 10-11. On September 14, 2016, Plaintiff sent Westport an email stating "[t]his says I owe over 42,0000 [sic]. That was not the paperwork I received from the court. How is this possible I received paperwork that stated almost 20,000.00." See Id. at ¶ 12. That same day, Defendant Debra L. Greenberg responded to Plaintiff on behalf of Westport with an email containing a statement (the "Statement") of the amount owed. See Id. at ¶ 13. According to Plaintiff, the Statement is false and misleading because it miscalculates the amount of interest due. See Id. at ¶ 15. Plaintiff also alleges that the Statement shows that Westport assessed Plaintiff's "costs related to the garnishment prior" to authorization by the state court. See Id. at ¶ 16. The Statement was the first time Defendants disclosed to Plaintiff their calculation of interest and the date of assessment of costs. See Id. at ¶ 17.
On September 18, 2017, Plaintiff filed her Complaint, alleging that Defendants violated Sections 1692e and f of the Fair Debt Collection Practices Act ("FDCPA"),
II. LEGAL STANDARD
Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly ,
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See *1377Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance ,
A court considering a Rule 12(b)(6) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc. ,
III. DISCUSSION
Defendants allege that Plaintiff's Complaint should be dismissed because: (1) the Complaint is barred by the statute of limitations; (2) the Statement was not an attempt to collect on a debt; (3) Plaintiff's claim under Section 1692f is barred by the statute of limitations; (4) Plaintiff's claim under Section 1692f fails to state a claim; (5) Plaintiff's claim under Section 1692e fails to state a claim; and (6) Plaintiff's allegations, which form the basis of her claim under Section 1692e, cannot also establish a separate violation of Section 1692f. See ECF No. [9]. The Court agrees that Defendants' first two arguments warrant dismissal of Plaintiff's Complaint with prejudice. The Court's analysis will accordingly be limited to these two arguments.
A. Plaintiff's Complaint is time-barred.
Section 1692k(d) of the FDCPA states, "An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs." Plaintiff acknowledges that "the one-year statute of limitations would normally run Thursday, September 14, 2017." ECF No. [16], at 1. The Court, however, was closed on September 14, 2017, due to Hurricane Irma. See ECF No. [1], at ¶ 14; ECF No. [16], at 1-3. Plaintiff alleges that the Complaint is therefore timely because it was filed once the Court reopened on September 18, 2017. See
Whether Plaintiff's Complaint is considered timely depends on whether the Court was "inaccessible" under Federal Rule of Civil Procedure 6(a)(3), which states that if the Clerk's office is "inaccessible ... on the last day for filing ... then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday."
Prior to its 2009 amendment, the rule referred to "weather or other conditions" as the reason for the inaccessibility of the clerk's office. As the advisory committee's *1378notes to the 2009 amendment to subdivision (a)(3) state: "The reference to 'weather' was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system . Weather can still be a reason for inaccessibility of the clerk's office. The rule does not attempt to define inaccessibility. Rather, the concept will continue to develop through caselaw." Fed. R. Civ. P. 6(a)(3) advisory committee's notes to 2009 amendment (emphasis added).
Indeed, emerging caselaw suggests that, "given the advent of electronic case filing (ECF), a clerk's office is no longer 'inaccessible' just because it may be physically closed on a particular day." Domazet v. Willoughby Supply Co. , No. 1:14-CV-1455 GLS,
In response, Plaintiff points to the severity of Hurricane Irma, the mandatory evacuations in South Florida, and the loss of power that affected many areas. See ECF No. [16], at 2. Plaintiff further contended that:
The Court may very well be inaccessible even though the filing system is operational, as litigants and counsel located in the immediate area of a natural disaster like Hurricane Irma may not be able to access the Court's filing system due to the need to make preparations for the hurricane and may also not be able to access the Court's filing system due to the loss of electrical power and internet connections during and after the hurricane.
*1379Id. at 3. Plaintiff's contention is certainly true, and the Court would not hesitate to find the clerk's office to be "inaccessible" where the office itself was closed and a litigant could not access the electronic filing system due to some technical complication. However, conspicuously absent from Plaintiff's Complaint or response to the Motion are any allegations that on September 14, 2017-three to four days after the storm had passed-Plaintiff's counsel were without power or internet access, that the Court's electronic filing system was down, that they attempted to file the six-page Complaint using the electronic filing system but were unable to, or that they even tried to access the electronic filing system at all.
The parties cite to Chao Lin v. U.S. Atty. Gen. , where the Eleventh Circuit Court of Appeals stated in dicta that "Official closure of the Clerk's office for any reason makes that office 'inaccessible.' "
The Lins' argument fails under any recognized standard for inaccessibility. No extenuating circumstances are present here. The Lins offer no evidence or assertion that the weather made it impossible for them to access the Clerk's office, nor do they contend that they lacked internet access to file their petition electronically . The Clerk's office was not physically inaccessible due to inclement weather. [T]hat office remained open ... and was accessible to the general public. Although the Lins assert that they should not suffer for the delay by Federal Express, they fail to explain how the Clerk's office was inaccessible.
*1380B. The Statement was not an attempt to collect on a debt under the FDCPA.
The Court also finds that Plaintiff's Complaint fails to state a claim under the FDCPA because the Statement was not an attempt to collect on a debt. "For the FDCPA to apply, two threshold criteria must be met. First, the defendant must qualify as a 'debt collector,' an issue which is not disputed in the present case. Second, the communication by the debt collector that forms the basis of the suit must have been made 'in connection with the collection of any debt.' " Dyer v. Select Portfolio Servicing, Inc. ,
The FDCPA does not explain what is meant by "in connection with the collection of any debt," and the Eleventh Circuit has not established a bright-line rule. Nevertheless, "courts have developed a factor-based analysis that takes into account: '(1) the nature of the relationship of the parties; (2) whether the communication expressly demanded payment or stated a balance due; (3) whether it was sent in response to an inquiry or request by the debtor; (4) whether the statements were part of a strategy to make payment more likely; (5) whether the communication was from a debt collector; (6) whether it stated that it was an attempt to collect a debt; and (7) whether it threatened consequences should the debtor fail to pay.' " Bohringer v. Bayview Loan Servicing, LLC ,
Importantly, courts have found that letters sent for informational purposes, such as those "sent in response to correspondence or an inquiry from a debtor are communications induced by the debtor and not the debt collector. Thus, they do not fall within the ambit of the FDCPA." Dyer v. Select Portfolio Servicing, Inc. ,
It is undisputed that the Statement was sent to Plaintiff following her email to Defendants inquiring about the amount owed. Considering the factors articulated above, the Court concludes, as a matter of law, that the Statement received by Plaintiff was not a communication sent in connection with the collection of a debt. On the one hand, the Statement specified an amount due and was sent by Defendants, a debt collector. On the other hand, the Statement did not demand payment; was unequivocally sent in response to an inquiry or request by the debtor; was not likely part of a strategy to make payment more likely, as the Statement did not include any phone numbers, addresses, or any other information regarding how payment could be made; did not state that it was an attempt to collect a debt;
IV. CONCLUSION
For the reasons stated, it is ORDERED AND ADJUDGED that Defendants' Motion to Dismiss Class Action Complaint, ECF No. [9] , is GRANTED . As an amendment would be futile, the Complaint is DISMISSED WITH PREJUDICE . See Jimenez v. Cont'l Serv. Grp. Inc. Conserve , No. 17-CV-60270,
DONE AND ORDERED in Miami, Florida, this 13th day of March, 2018.
The Court's ECF system was in fact operational, as nine cases were filed on September 14, 2017. See ECF No. [9], at 27-29.
While the Court is sympathetic that a storm happened to come by during the last week of Plaintiff's limitations period, the Court notes that, unlike the Lins, who had 30 days to file their petition, Plaintiff had a year to file the Complaint.
In her response, Plaintiff mentions that the Statement was attached to an email sent by Greenberg that stated "[t]his communication is from a debt collector attempting to collect a debt and any information obtained will be used for that purpose." ECF No. [16], at 4. The Court, however, is not convinced that the inclusion of boilerplate language at the end of the email outweighs the other factors that overwhelmingly support the conclusion that the Statement was not a communication in connection with the collection of a debt. See Bohringer ,
Plaintiff does not evaluate the factors articulated in the Court's analysis. Instead, Plaintiff cites to Hart v. Control, LLC ,
Reference
- Full Case Name
- Lara E. MCELVEEN v. WESTPORT RECOVERY CORP. and Debra L. Greenberg
- Cited By
- 6 cases
- Status
- Published