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Patterson v. AD Astra Recovery Service

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

November 27, 2018

AD ASTRA RECOVERY SERVICE, et al., Defendants.



         Presently pending is the motion to dismiss filed by the defendants, Speedy Cash and Ad Astra Recovery Services, Inc. (Doc. 21). The time to file any opposition to the motion has expired, and the plaintiff, Misti Patterson, has not responded. (See Doc. 13 at 5). For the reasons explained below, the motion is due to be granted in its entirety.


         Patterson originally filed this matter in the Bessemer Division of the Circuit Court of Jefferson County, Alabama, against Ad Astra, Speedy Cash, and several unnamed defendants, alleging claims under the Fair Debt Collection Practices Act (“FDCPA”), the Fair Credit Reporting Act (“FCRA”), the Real Estate Settlement Procedures Act (“RESPA”), and state common law. (Doc. 1-1). Ad Astra and Speedy Cash removed to this court, asserting federal question jurisdiction. (Doc. 1).

         After removal, the defendants sought dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 5). The undersigned partially granted the motion to dismiss as to the RESPA and FCRA claims-which Patterson conceded-and denied the balance of the motion. (Doc. 15). As to the remaining claims, the undersigned ordered Patterson to amend; the memorandum opinion and order noted the court generally agreed with the defendants' arguments regarding the remaining claims but provided Patterson an opportunity to amend to comply with federal pleading standards in light of the removal from state court. (Id.).

         Patterson filed an Amended Complaint on June 21, 2018, asserting claims for violations of the FDCPA and negligence against Speedy Cash and Ad Astra. (Doc. 17). On July 5, 2018, the defendants moved to dismiss the Amended Complaint under Rule 12(b)(6). (Doc. 21). The Initial Order governing this case requires parties to respond to motions to dismiss within fourteen (14) calendar days. (See Doc. 13 at 5). Patterson has not filed any opposition or otherwise responded to the motion to dismiss in the more than four intervening months. Accordingly, the motion is ripe for adjudication.


         "Federal Rule of Civil Procedure 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.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 "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) (quoting Twombly, 550 U.S. at 555). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. at 678 (quoting Twombly, 550 U.S. at 555, 557) (internal quotation marks omitted).

         To survive a motion to dismiss for failure to state a claim on which relief may be granted brought pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. 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." Id. (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where 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. (quoting Twombly, 550 U.S. at 557) (quotation marks omitted).

         As noted by other courts sitting in this district, a motion to dismiss is not automatically granted where a plaintiff fails to file a brief in opposition. Gadson v. Ala. Dep't of Corr., No. 13-0105-VEH, 2013 WL 5230241, at *2 (N.D. Ala. entered Sept. 17, 2013). Rather, the movant still bears the initial burden of demonstrating entitlement to dismissal under Rule 12(b)(6). Id. In circumstances where a plaintiff fails to file an opposition to a motion to dismiss, courts sitting in this district have held the following legal standard applies:

[T]he Court will review the merits of the movant's position and, if it is clearly incorrect or inadequate to satisfy the movant's initial burden, will deny the motion despite the nonmovant's failure to respond. If, however, the movant's presentation is adequate to satisfy its initial burden, the Court will not deny the motion based on arguments the nonmovant could have made but by silence elected not to raise.

Id. (alterations incorporated) (quoting Branch Banking and Trust Co. v. Howard, No. 12-0175, 2013 WL 172903, *1 (S.D .Ala. entered Jan. 16, 2013)).

         III. FACTS

         The Amended Complaint alleges Speedy Cash wrote Patterson a letter in August 2016, demanding she make payments on a loan. (Doc. 17 at 1). Patterson contends she did not take out a loan with Speedy Cash and communicated this fact to Speedy Cash on numerous occasions. (Id.). During her initial telephone call with Speedy Cash, Patterson voluntarily provided her social security number and birthday. (Id.). In September 2016, Speedy Cash presented loan documents Patterson contends reveal the loan, which was originated in California, was obtained by a third-party via identity theft. (Id.). Specifically, ...

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