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Brown v. Encore Capital Group Inc.

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

April 20, 2015

ANNIE BROWN, Plaintiff,
ENCORE CAPITAL GROUP INC., et al., Defendants.


JOHN E. OTT, Chief Magistrate Judge.

This case is before the court on Defendants Encore Capital Group, Inc.; Midland Funding, LLC; and Midland Credit Management, Inc.'s (collectively "Midland") Motion to Dismiss and Motion for Partial Summary Judgment. (Doc. 7). The motion has been fully briefed. (Docs. 7, 13, and 14). The parties have consented to the full jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). (Doc. 21). For the reasons stated more fully below, the court finds that Defendants' Motion to Dismiss and Motion for Partial Summary Judgment is due to be granted.


On November 30, 2005, Plaintiff opened a credit account with Barclays Bank Delaware. (Doc. 7-1 at 4). Plaintiff last paid on that account on November 18, 2008, and on June 29, 2009, the account was charged off. ( Id. ) The balance on the account was $2, 442.39. ( Id. ) On December 14, 2012, Midland purchased the debt from Barclays. ( Id. at 2, ¶ 4).

On June 18, 2013, Midland filed suit in Small Claims Court in Jefferson County, Alabama seeking to recover $2, 442.39 plus post-judgment interest (the "Collection Suit"). (Doc. 1 at ¶ 16). The action contained three claims: (1) Breach of Contract, (2) Money Had and Received and (3) Account Stated. (Doc. 1 at 18-21). On August 29, 2013, Plaintiff, who was represented by counsel, filed an answer asserting that she was not indebted to Midland "and that any alleged outstanding debt was more than six years old and, therefore, violated the statute of limitations." (Doc. 1 at ¶ 18). The answer further asserted that "the Complaint violates the statute of limitations pursuant to ALABAMA CODE Section 6-2-37 for open accounts which must be commenced within three years, as it appears that this is an open account and the statute of limitations that should apply here is for an open account which is three years under the case of Ayers v. Calvary SVP1, LLC, 876 So.2d 474 (Ala. 2003)." (Doc. 1 at 22).

"Subsequently, on or about September 14, 2013 [Midland] pulled Plaintiff's credit report." (Doc. 1 at ¶ 19). Plaintiff alleges that Midland "did not have a lawful or permissible purpose for requesting, obtaining, and using the Plaintiff's consumer report." (Doc. 1 at ¶ 20).

The small claims case was set for trial on October 7, 2013. (Doc. 1 at 21). At that time, Jefferson County District Judge Bynon entered the following order: "All parties represented by their respective counsel in open court this date, by agreement and for good cause shown, this case is hereby dismissed with prejudice, costs of Court taxed against Plaintiff." (Doc. 1 at 25).

On June 17, 2014, Plaintiff filed the Complaint that forms the basis of this action. (Doc. 1). This Complaint contains six claims. Count I alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; Count II alleges invasion of the right to privacy; Count III alleges negligent, reckless, and wanton training and supervision; and Counts IV-VI allege various violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. (Doc. 1). Midland has moved for summary judgment as to Count I and to dismiss for failure to state a claim as to the remaining counts. The court will first address the motion to dismiss and then the motion for partial summary judgment.


A. Motion to Dismiss

Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE authorizes a motion to dismiss all or some of the claims in a complaint on the ground that its allegations fail to state a claim upon which relief can be granted. Such a motion tests only the sufficiency of the claim set out in the plaintiff's pleadings. Harris v. Proctor & Gamble Cellulose Co., 73 F.3d 321, 324 (11th Cir. 1996). Thus, the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986) (quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974)).

Rule 8(a)(2) requires only "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, " Conley v. Gibson, 355 U.S. 41, 47 (1957). The court assumes the factual allegations in the complaint are true and gives the plaintiff the benefit of all reasonable factual inferences. Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per curiam). However, "courts are not bound to accept as true a legal conclusion couched as a factual allegation.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) ("Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."). Nor is it proper to assume that the plaintiff can prove facts it has not alleged or that the defendants have violated the law in ways that have not been alleged. Twombly, 550 U.S. at 563 n.8 (citing Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id., 550 U.S. at 555 (citations, brackets, and internal quotation marks omitted). "Factual allegations must be enough to raise a right to relief above the speculative level...." Id. Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, '" i.e., its "factual ...

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