United States District Court, M.D. Alabama, Northern Division
DOROTHY RUSSAW, individually and on behalf of all others similarly situated, Plaintiffs,
SCOTT & ASSOCIATES, P.C., Defendant.
MEMORANDUM OPINION AND ORDER
L. BRASHER UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant Scott &
Associates, P.C.'s Motion to Dismiss Plaintiff's
Amended Complaint Pursuant to Federal Rule 12(b)(6). (Doc.
20). Upon consideration, the motion is GRANTED.
Dorothy Russaw filed this suit against Scott & Associates
alleging violations of the Fair Debt Collection Practices
Act. Russaw notified either the creditor, Barclay's Bank
Delaware, or the collector, Scott & Associates in writing
to cease and desist further communication. (Doc. 16
¶32). After Russaw's cease and desist, Scott &
Associates sent Russaw the following letter, which is the
subject of the present case. (Doc. 16 ¶¶32-54).
makes claims under the FCPA arising from this letter. Count
One asserts that the letter violates 15 U.S.C. §1692c,
which prohibits a debt collector from communicating with a
debtor after receiving a cease and desist letter. (Doc. 16
¶¶22-54). Count Two alleges that the letter makes
false, deceptive, or misleading representations in connection
with the collection of a debt in violation of 15 U.S.C.
§1692e. (Doc. 16 ¶¶55-77).
& Associates filed an initial motion to dismiss because
Russaw had not alleged to whom she sent her cease and desist
letter. (Doc. 14 at 5-8). Russaw amended her complaint in
response to the motion, but again failed to allege to whom
she sent the letter. (Doc. 16 ¶32). Scott &
Associates renewed its motion to dismiss. (Doc. 20).
& Associates argues that the Amended Complaint should be
dismissed in its entirety. Scott & Association argues
that Russaw has not alleged that she sent a cease and desist
letter to a “debt collector, ” which is a
necessary precondition to invoke 15 U.S.C. §1692c. It
also argues that its letter is consistent with the FCPA
because the Act expressly carves out an exception for this
type of contact and the letter is not contradictory or
confusing. Russaw counters that she should be entitled to an
inference that she sent Scott & Associates the letter,
that Scott & Associates was not allowed to contact her
after receiving the cease and desist, and that the letter is
evaluating a motion to dismiss, the court assumes the factual
allegations are true and construes them in the light most
favorable to the plaintiff. Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984); Duke v.
Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). “To
avoid dismissal the complaint must contain sufficient factual
matter … to state a claim to relief that is plausible
on its face.” Gates v. Khokhar, 884 F.3d 1290,
1296 (11th Cir. 2018) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)) (internal quotation marks omitted).
Whether a complaint is plausible depends on whether “it
contains sufficient facts to support a reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (emphasis added).
Count One is due to be dismissed.
One of the Amended Complaint arises under 15 U.S.C.
§1692c. Under this section of the FDCPA, “[i]f a
consumer notifies a debt collector in writing that the
consumer refuses to pay a debt or that the consumer wishes
the debt collector to cease further communication with the
consumer, the debt collector shall not communicate further
with the consumer with respect to such debt …”
except for three specific exceptions. 15 U.S.C.
§1692c(c). Scott & Associates argues that this Count
is due to be dismissed for two reasons.
Russaw Has Not Alleged She Notified a ...