United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
G. CORNELIUS, U.S. MAGISTRATE JUDGE.
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.
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).
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.).
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.
STANDARD OF REVIEW
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).
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
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)).
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, ...