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Roper v. CNU of Alabama

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

August 4, 2017

TIFFANY ROPER, Plaintiff,
v.
CNU OF ALABAMA, Defendants.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Tiffany Roper, proceeding pro se, sued Defendants Debt Management Partners, Adam March, and Daniel Valentine, among others, alleging that they violated the Fair Debt Practices Collection Act, the Telephone Consumer Protection Act, and Federal Communications Commission's telemarketing sales regulations. DMP, Mr. March, and Mr. Valentine moved the court to dismiss Ms. Roper's claims against them for lack of personal jurisdiction, lack of proper service, and failure to state a claim. (Doc. 13, 14). For the reasons discussed in this opinion, the court will grant the motion as to Mr. March and Mr. Valentine but deny it as to DMP.

         I. BACKGROUND

         In October of 2013, Ms. Roper borrowed $500.00 from Advance America, an online lender. Ms. Roper obtained an extension on the original loan, resulting in a new balance of $587.50. Ms. Roper was unable to pay the balance, and the loan became delinquent.

         Cash Net USA funded and held the loans offered by Advance America. CashNetUSA sold Ms. Roper's account to DMP, who in turn sold it to Solutions to Portfolios, LLC, who sold it to Legal Outsourcing. Ms. Roper alleges that DMP, Mr. March, and Mr. Valentine “have or have had, direct or indirect control over the daily operations of such account.” (Doc. 1 at ¶ 22).

         Ms. Roper's complaint details several conversations with persons she alleges to be employees or agents of the Defendants (including the three Defendants who have moved to dismiss the complaint). (Doc. 1 at ¶¶ 22, 25-28, 32-44, 56-57, 60-64, 70, 88). During these conversations, Ms. Roper alleges the Defendants or their agents made false statements about the amount of her debt and the consequences of nonpayment, and also failed to identify themselves as debt collectors. Further, Ms. Roper claims she received over 150 unauthorized calls, and that the collectors failed to use accurate caller identification information. (Doc. 1 at ¶ 88, 65-66).

         II. STANDARD OF REVIEW

         A Rule 12(b)(2) motion attacks the court's jurisdiction over the defendant's person. In determining whether personal jurisdiction exists, a federal court sitting in diversity undertakes a two-step inquiry: “the exercise of jurisdiction must (1) be appropriate under the state long-arm statute and (2) not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). “[B]ecause Alabama's long-arm statute permits the exercise of personal jurisdiction to the fullest extent constitutionally permissible, ” the two inquiries are coextensive in this case. Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007).

         “The plaintiff bears the burden of establishing personal jurisdiction over the defendant [but] ‘need only make a prima facie showing.'” S & Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000) (quoting Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir. 1990)). The court must accept the allegations in the complaint as true. Id. “Where, as here, the defendant challenges jurisdiction by submitting affidavit evidence in support of its position, ‘the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction.'” Mazer, 556 F.3d at 1274 (quoting Meier ex rel. Meier v. sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)). If “the plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable inferences in favor of the plaintiff.” Meier, 288 F.3d at 1269.

         A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. The Federal Rules of Civil Procedure require the complaint to provide “a short and plain statement of the claim” demonstrating that the plaintiff is entitled to relief. Fed.R.Civ.P. 8(a)(1). A plaintiff must provide the grounds of her entitlement, but Rule 8 rarely requires detailed factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 does, however, demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleadings that contain nothing more than a formulaic recitation of the elements of a cause of action do not meet Rule 8 standards. Twombly, 550 U.S. at 555, 557.

         The court must construe a pro se complaint liberally, but it does not have a duty to rewrite it. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006). Even a pro se plaintiff is “subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

         III. DISCUSSION

         A. Personal Jurisdiction

         Personal jurisdiction “represents a restriction on judicial power . . . as a matter of individual liberty.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). When a defendant challenges personal jurisdiction by filing affidavits to support its position, “[t]he plaintiff bears the burden of proving by affidavit the basis upon which jurisdiction may ...


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