United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE.
Westbrook brings this action asserting a claim under the Fair
Debt Collection Practices Act, 15 U.S.C. §§ 1692
et seq. (“FDCPA”), and various state law
tort claims. Doc. 13. The court has for consideration Twenty
4 Seven Recovery, Inc.'s motion to dismiss, doc. 29,
which is fully briefed, docs. 32, 33, and ripe for review.
For the reasons explained more fully below, the motion is due
to be granted solely as to the state law tort claims.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Mere “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). “Nor does a complaint suffice
if it tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
(citing Bell Atl. Corp., 550 U.S. at 557).
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be
granted. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). The
complaint must establish “more than a sheer possibility
that a defendant has acted unlawfully.” Id.;
see also Bell Atl. Corp., 550 U.S. at 555
(“Factual allegations must be enough to raise a right
to relief above the speculative level”). Ultimately,
this inquiry is a “context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
late husband was the owner of an automobile financed through
NASA Federal Credit Union. Doc. 13 at 2. After her late
husband died, Westbrook informed NASA of his death and
continued making payments on the automobile. Id. at
2-3. Despite the note being current, at NASA's direction,
a Twenty Four Seven employee repossessed the automobile
roughly five weeks after her husband's death.
Id. at 3. During the repossession, Westbrook
confronted the employee, stating that the automobile was not
in default and attempting to retrieve her personal items from
it. Id. The employee became hostile and refused to
allow Westbrook access to the automobile. Id.
Westbrook had to call the police in order to collect her
personal items from the automobile. Id. This lawsuit
pleads claims of negligence (Counts I and IV), wantonness
(Count II and V), violation of § 1692f(6) of the FDCPA
(Count VII), and invasion of privacy (Count VIII) against
Twenty 4 Seven. Id. at 4-9. Twenty 4 Seven
contends that Westbrook lacks standing to challenge the
repossession and has moved to dismiss her claims. Doc. 29.
The Negligence and Wantonness Claims (Counts I, II, IV,
negligence and wantonness claims are based on the
repossession of the vehicle and the alleged breach of the
peace during the repossession. Doc. 13 at 4-7. A wrongful
repossession or a breach of the peace injures the debtor.
See Ala. Code § 7-9A-625(c). As a non-debtor,
Westbrook lacks standing to bring negligence and wantonness
claims on these bases against Twenty 4 Seven. See
doc. 27 at 4. Indeed, in the context of breach of contract
and conversion claims over the repossession of a vehicle in
similar circumstances, the Alabama Supreme Court has held
that the widow and son of a deceased vehicle owner have no
standing to assert state law claims arising out of the
repossession.Vest v. Dixie-Midwest Express,
Inc., 537 So.2d 13, 14 (Ala. 1988). Alternatively,
Westbrook has failed to adequately plead the requisite injury
necessary for her negligence and wantonness claims.
See doc. 13 at 2-7 (pleading only that she had to
call the police to retrieve her personal items from the car
and that she suffered extreme embarrassment, shame, anxiety,
mental distress, and unspecified “other physical and
mental damages” as a result). Accordingly, Twenty 4
Seven's motion is due to be granted as to Counts I, II,
IV, and V.
The FDCPA Claim (Count VII)
FDCPA prohibits debt collectors from Taking or threatening to
take any nonjudicial action to effect dispossession or
disablement of property if
(A) there is no present right to possession of the property
claimed as collateral through an enforceable ...