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McFerrin v. Capital One Bank (U.S.A.), N.A.

United States District Court, N.D. Alabama, Western Division

March 27, 2015

NATHAN D. McFERRIN, Plaintiff,
CAPITAL ONE BANK (U.S.A.), N.A., Defendant.



This case is presently pending before the court on defendant's Motion to Dismiss Amended Complaint. (Doc. 12.)[1] Plaintiff Nathan D. McFerrin has sued defendant Capital One Bank alleging claims based in the Fair Debt Collection Practices Act and state-law claims of fraud, unjust enrichment, and intentional infliction of emotional distress. Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that defendant's Motion to Dismiss Amended Complaint, (doc. 12), is due to be granted.


Defendant has moved to dismiss plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted. (Doc. 9 at 1-2.) The purpose of such a motion, authorized by Rule 12(b)(6) of the Federal Rules of Civil Procedure, is to test the facial sufficiency of the plaintiff's statement of a claim for relief. Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364, 1367 (11th Cir. 1997). Rule 12(b)(6) must be read together with Rule 8(a)(2) of the Federal Rules of Civil Procedure, which "requires that a pleading contain a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (internal citations and quotation omitted).

When addressing a 12(b)(6) motion to dismiss, the court accepts the allegations in the Complaint as true and construes those allegations in the light most favorable to plaintiff. Ironworkers Local Union 68 v. AstraZeneca Pharmaceuticals, LP, 634 F.3d 1352, 1359 (11th Cir. 2011)(quoting Am. Dental Ass'n, 605 F.3d at 1288). To survive a Motion to Dismiss, "the complaint must contain sufficient factual matter... to state a claim to relief that is plausible on its face." Id. (quoting Am. Dental Ass'n, 605 F.3d at 1289 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)))(internal quotations omitted). A claim is "plausible" if the facts are sufficient "to allow[ ] 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). However, "courts are not bound to accept as true a legal conclusion couched as a factual allegation, " and the court does not assume that plaintiff can prove facts she has not alleged. Twombly, 550 U.S. at 555, 563 n.8. (internal quotations and citations omitted). "[W]hile notice pleading may not require that the pleader allege a specific fact' to cover every element or allege with precision' each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.'" Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)(quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. Unit A Sept. 8, 1981)).


Plaintiff's Complaint contains the following "Statement of Facts, " which the court assumes are true for purposes of deciding defendant Motion to Dismiss Amended Complaint:

On December 03, 2008 a civil action, without proof of debt being [owed] by Plaintiff, was filed against Plaintiff in the District Court of Tuscaloosa County, Alabama. Plaintiff denied this debt for approximately six (6) and one half [(1/2)] years before Defendant (Plaintiff at that time) decided that the filed complaint against current Plaintiff, Nathan D. McFerrin, should be vacated because of fraud on a third party. Plaintiff was subjected to threats of incarceration, humiliation, denial of credit opportunities, increased interest payments for credit received, a complete destruction of the harmony of a household and destruction of credit, because of Defendant's [sic] Capital One Bank's actions against and toward Plaintiff.

(Doc. 1 at 2.) After defendant filed its first Motion to Dismiss, [2] (doc. 6), plaintiff filed an Amendment to Original Complaint, which contained the following allegations:

2. Defendant, Capital One Bank (USA) N.A., hereinafter, Capital One, has engaged in only one business practice with the Plaintiff and that is a relentless pursuit of a phantom debt allegedly owed by the Plaintiff.
3. Defendant, Capital One, qualifies as a debt collector because it has used the "instrumentalities of the interstate commerce, through usage of the phone and the mails in an attempt to collect from the Plaintiff.
4. Defendant, Capital One has engaged in regular telephone calls at Plaintiff's residence and workplace alleging that Plaintiff owes a debt and that they are collecting such a debt.
5. Defendant Capital One has not attempted to set itself apart as separate entity engaging in such collection practices on behalf of the Defendant, Capital One.
6. Defendant, Capital One, has attempted to collect on a credit card, allegedly contracted with and issued to the Plaintiff, in which the Plaintiff would have used for personal use....
8. Plaintiff re-alleges that Defendant, Capital One has engaged in debt collection practices that were/are intentional and reckless and that Plaintiff has suffered tremendous emotional distress by being called repeatedly at home and at work.
9. Plaintiff alleges that for Defendant, Capital One, to knowingly and intentionally accept a payment for a contract of a credit card, that 1) they cannot produce and 2) if produced, the Plaintiff would not have signed, is to be enriched unjustly. Emphasis added.
10. Plaintiff specifically states that Defendant, Capital One, has found a name and an address, and by method of "default to pay" forces consumers just like Plaintiff, to become overwhelmed with phone calls and letters and ultimately give [in] and pay a debt that is not owed. This is a fraudulent scheme that will not be deterred, even when an innocent consumer states emphatically that the debt is not owed and demands strict proof thereof. Plaintiff has become overwhelmed with phone calls and received a small claims complaint that was later dismissed citing third party fraud. Plaintiff has been threatened with criminal charges and jail time if he does not pay a debt that is not his. Plaintiff ...

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