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Ellis v. Bureaus, Inc.

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

July 17, 2017

DIANNE ELLIS, Plaintiff,
THE BUREAUS, INC., et al., Defendants.



         This matter is before the Court on motions to dismiss filed by three of the four defendants. (Docs. 29-31). The plaintiff has filed a consolidated response and the movants separate replies, (Docs. 47, 54-56), and the motions are ripe for resolution.


         According to the complaint, (Doc. 1), the plaintiff purchased an off-road vehicle by charging the purchase price to her credit card with defendant Capital One, N.A. (“Capital One”) and giving Capital One a lien on the vehicle. With Capital One's active involvement, the plaintiff later sold the vehicle, and Capital One issued the plaintiff a release of lien and confirmed in writing that her credit card balance was fully satisfied. Capital One nevertheless dunned the plaintiff about her delinquent account and made collection calls using an automated telephone dialing system (“ATDS”) and an artificial or pre-recorded voice without her prior express consent. Eventually, the plaintiff's account was acquired by defendant Bureaus Investment Group Portfolio No. 15, LLC (“Portfolio”). Portfolio and/or defendant The Bureaus, Inc. (“Bureaus”) made calls to the plaintiff regarding the alleged debt, at least some of which were made using an ATDS and/or an artificial or prerecorded voice without her prior express consent. Portfolio later referred the account to defendant Stoneleigh Recovery Associates, LLC with representations the account was delinquent and past due. All four defendants wrongfully reported to consumer reporting agencies that the plaintiff's account was delinquent and past due. (Doc. 1 at 1-5).

         The claims, and the defendants against whom they are asserted, are as follows:

• Count One

Fair Debt Collection Practices Act (“FDCPA”)

Portfolio, Bureaus, Stoneleigh

• Count Two

Telephone Consumer Protection Act (“TCPA”)

all defendants

• Count Three


all defendants

• Count Four


all defendants

• Count Five

Wanton collections

all defendants

• Count Six


Capital One

• Count Seven



• Count Eight

Invasion of privacy

all defendants

• Count Nine

Fraudulent representation

Capital One

(Doc. 1 at 5-13). The movants - all defendants except Capital One - seek dismissal of all claims against them other than Counts One and Eight.[1]


         I. Count Two.

         Stoneleigh moves to dismiss on the grounds the complaint fails to allege that it made any telephone calls to the plaintiff of any kind. (Doc. 30 at 2). Stoneleigh is correct. The plaintiff offers no defense of her claim against Stoneleigh, and its motion to dismiss is due to be granted.

         The complaint does allege that the other two movants made telephone calls to the plaintiff. Portfolio and Bureaus argue, however, that the complaint's allegations fail to satisfy Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). (Doc. 29 at 2-4).

         To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the pleading requirements of Rule 8(a)(2). Twombly, 550 U.S. at 555. “A pleading that states a claim for relief must contain … a short and plain statement of the claim showing that the pleader is entitled to relief ….” Fed.R.Civ.P. 8(a)(2). Rule 8 establishes a regime of “notice pleading.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 513-14 (2002). It does not, however, eliminate all pleading requirements.

         First, the complaint must address all the elements that must be shown in order to support recovery under one or more causes of action. “At a minimum, notice pleading requires that a complaint contain inferential allegations from which we can identify each of the material elements necessary to sustain a recovery under some viable legal theory.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 960 (11th Cir. 2009) (emphasis and internal quotes omitted).

         Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2). The rule “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” to satisfy that rule. Twombly, 550 U.S. at 555. There must in addition be a pleading of facts. Though they need not be detailed, “[f]actual allegations must be enough to raise a right to relief above the speculative level ....” Id. That is, the complaint must allege “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. “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.” Iqbal, 556 U.S. at 678. “The plausibility standard … asks for more than a sheer possibility that the defendant has acted unlawfully, ” and “[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotes omitted). A complaint lacking “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its ...

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