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Askew v. Crown Management, LLC

United States District Court, N.D. Mississippi, Aberdeen Division

April 27, 2017

JERRY ASKEW PLAINTIFF
v.
CROWN MANAGEMENT, LLC DEFENDANT

          MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO DISMISS

         Presently before the Court is Defendant Crown Management, LLC's motion to dismiss for failure to state a claim or to dismiss for lack of jurisdiction [6]. Upon due consideration, the Court finds that the motion should be granted.

         I. Factual and Procedural Background

         On July 20, 2016, Plaintiff Jerry Askew ("Plaintiff') filed this action against Defendant Crown Management, LLC ("Defendant"), alleging a federal claim for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et. seq., as well as state-law claims for unfair or deceptive and/or unconscionable trade practices, fraud/fraudulent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, malicious abuse of process, and defamation. In support of these claims, Plaintiff alleges that Defendant is a collection agency and assignee of a debt charged on a Synchrony Bank credit card, which was apparently a Lowe's business credit account. Plaintiff further alleges that Defendant has "harassed, coerced, and otherwise used intimidating tactics" to "force" Plaintiff to pay the debt, which Plaintiff claims he does not owe. PL's Compl. [1] ¶ IV(3). These alleged tactics include but "[are] not limited to" the following: threatening to notify various credit bureaus of the debt and report it as a debt Plaintiff failed to pay; threatening to file suit against Plaintiff; threatening to garnish Plaintiffs wages or otherwise execute judgment on his property; "[m]aliciously and without merit" filing suit against Plaintiff in the County Court of Lowndes County, Mississippi; and requiring Plaintiff to appear and defend "such frivolous suit." Id. Plaintiff seeks statutory damages under the FDCPA; compensatory damages for mental and emotional distress, as well as humiliation and embarrassment, punitive damages, treble damages, attorney's fees, and costs.

         On October 6, 2016, in lieu of filling an answer, Defendant filed the present motion to dismiss [6] pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff filed a response, and Defendant filed a reply. The matter is now ripe for review.

         II. Federal Rule of Civil Procedure 12(b)(6)

         Motions to dismiss pursuant to Rule 12(b)(6) "are viewed with disfavor and are rarely granted." Kocurek v. Cuna Mut. Ins, Soc'y, 459 F.App'x 371, 373 (5th Cir. 2012) (citing Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003)). "[A plaintiffs] complaint.. . 'must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." ' " Phillips v. City of Dallas, Tex., 781 F.3d 772, 775-76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "[A plaintiff] must allege facts that support the elements of the cause of action in order to make out a valid claim." Webb v. Morella, 522 F.App'x 238, 241 (5th Cir. 2013) (per curiam) (quoting City of Clinton, Ark v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010) (quotation marks omitted)). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Id. (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993) (internal quotation marks omitted)). "Dismissal is appropriate when the plaintiff has not alleged 'enough facts to state a claim to relief that is plausible on its face' and has failed to 'raise a right to relief above the speculative level.' " Emesowum v. Hous. Police Dep't, 561 F.App'x 372, 372 (5th Cir. 2014) (per curiam) (quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955).

         III. Federal Rule of Civil Procedure 12(d)

         Defendant attaches to its motion to dismiss a copy of the Lowe's business credit card account statement and account agreement made the subject of this case, as well as the allegedly pertinent documents evincing assignment from Synchrony Bank to Defendant and Defendant's state-court complaint against Plaintiff. Defendant maintains that the Court may consider these documents with its Rule 12(b)(6) motion for the following reasons: Plaintiffs complaint makes references to these attachments; the attachments are central to Plaintiffs claim; and the documents are public records of which the Court may take judicial notice. Plaintiff makes no argument to the contrary in his response.

         "If, on a motion under Rule 12(b)(6). . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). Therefore, "[o]n a Rule 12(b)(6) motion, a district court generally 'must limit itself to the contents of the pleadings, including attachments thereto.' " Brand Coupon Network, LLC. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014) (quoting Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)).

         However, "[t]he court may also consider documents attached to either a motion to dismiss or an opposition to that motion when the documents are referred to in the pleadings and are central to a plaintiffs claims." Id. (citing Collins, 224 F.3d at 498). The Court finds that it can properly consider these attachments together with the motion to dismiss. The attachments contain information central to Plaintiffs claims against Defendant. Furthermore, the attachments are matters of public record, as the same were filed in the County Court of Lowndes County in the state-court action styled Crown Asset Management v. Jerry Askew, Civil Action No. 2015-325-CV2. See State-Ct. Compl. with Exhs. [6-1 to 6-3]. Furthermore, in Plaintiffs response, he refers to the attachments; he references the state-court action by Defendant against him, see PL's Mem. Br. Supp. Resp. Opp'n to Def.'s Mot. Dismiss [14] at 1, 2; the Lowe's business credit card account statement, see Id. at 6; and Defendant's acquisition of the debt at issue, id. For all of the foregoing reasons, the Court will consider the attachments in ruling on the present motion to dismiss. Therefore, the Court need not, and does not, convert the motion to dismiss to a motion for summary judgment.

         IV. Analysis and Discussion

         Defendant moves to dismiss Plaintiffs claims under Rule 12(b)(6) on the following grounds: (A) Plaintiffs FDCPA claim fails, because Plaintiff fails to allege that Defendant was a "debt collector" who sought to pursue "consumer debt" under the statute; (B) the Court should decline to exercise 28 U.S.C. § 1367(c) supplemental jurisdiction over the state-law claims, because the claims can be brought in the pending state-court action; and (C) even if the Court exercises supplemental jurisdiction over the pendent state-law claims, those claims are not viable. The Court finds that the first two arguments are well taken and render unnecessary the consideration of the third.

         (A) FDCPA Claim

         First, Defendant argues that Plaintiff fails to state a FDCPA claim. "Responding to reports of abusive practices by third-party collectors of consumer debts, Congress enacted the FDCPA 'to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.' " Sheriff v. Gillie, __ U.S. __, __, 136 S.Ct. 1594, 1598, 194 L.Ed.2d 625 (2016) § 1692(e). "To that end, the [FDCPA] imposes various procedural and substantive obligations on debt collectors." Id. See, e.g., 15 U.S.C. § 1692d (prohibiting harassing, oppressive, or abusive conduct); id. § 1692e (barring "false, deceptive, or misleading representation[s] ... in connection with the collection of any debt"); id. § 1692g(a) (setting out requirements for the contents of initial notices to consumers). "The FDCPA's private-enforcement provision, § 1692k, authorizes any ...


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