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Russaw v. Scott & Associates, P.C.

United States District Court, M.D. Alabama, Northern Division

October 24, 2019

DOROTHY RUSSAW, individually and on behalf of all others similarly situated, Plaintiffs,
v.
SCOTT & ASSOCIATES, P.C., Defendant.

          MEMORANDUM OPINION AND ORDER

          ANDREW L. BRASHER UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         Plaintiff 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).

         (Image Omitted)

(Doc. 16-1).

         Russaw 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).

         Scott & 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).

         DISCUSSION

         Scott & 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 confusing.

         When 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).

         A. Count One is due to be dismissed.

         Count 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.

         1. Russaw Has Not Alleged She Notified a ...


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