United States District Court, W.D. Arkansas, Harrison Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L BROOKS, UNITED STATES DISTRICT JUDGE.
September 6, 2017, the Court held a hearing on
Defendants' Motion to Dismiss (Doc. 18), followed by an
initial case management conference. The parties presented
oral argument, and the Court granted the Motion from the
bench. The following Order memorializes the Court's
decision. To the extent anything in this Order differs from
what was stated from the bench, this Order will control.
case was filed in this Court on May 1, 2017. (Doc. 1).
Plaintiff Kandis Smith filed an Amended Complaint shortly
thereafter, on May 25, 2017. (Doc. 10). Defendants then filed
a collective Answer on June 29, 2017 (Doc. 14), and an
Amended Answer on June 30, 2017 (Doc. 17). Also on June 30,
2017, Defendants filed a Motion to Dismiss for Failure to
State a Claim (Doc. 18). Although the Motion to Dismiss is
styled as a Rule 12(b)(6) motion, it was technically filed
after the Answer, so the Court has considered it as a motion
for judgment on the pleadings pursuant to Rule 12(c). In any
event, when ruling on a 12(c) motion, the Court uses the
"same standard used to address a motion to dismiss for
failure to state a claim under Rule 12(b)(6)" Ashley
Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.
Amended Complaint reveals that Ms. Smith, an Arkansas
citizen, obtained a credit card sometime in 2008 and later
incurred a debt on the account. The last payment she made on
the credit card was in mid-2008. She defaulted on the debt,
and the account was "charged off." The Amended
Complaint does not state exactly when the account was
"charged off, " see Doc. 10, p. 4, but it
does reference the fact that on July 7, 2016, Defendant
Cavalry SPV I ("Cavalry") commenced a
debt-collection action against Ms. Smith in Carroll County
Circuit Court. That state-court complaint was filed on behalf
of Cavalry by Defendant Rachel Kuperman, who at the time
worked for Defendant Lloyd & McDaniel, PLC, a law firm.
state-court debt collection action was discussed in the
Amended Complaint and is a matter of public record. One of
the documents attached to the state-court complaint was an
"Affidavit of Claim, " executed on September 25,
2015, by an employee of Defendant Cavalry Portfolio Services,
LLC ("CPS"). See Doc. 10, p. 4. The
Affidavit of Claim notes that Ms. Smith's credit card
account was "charged off' by G.E. MoneyBank/Dillards
on December 16, 2008. The creditor then sold the debt to
Cavalry, which is a licensed debt collection agency. Cavalry,
in turn, hired CPS to perform the day-to-day debt collection
service on the account.
to the Amended Complaint in the case at bar, Ms. Smith never
acknowledged the existence of the debt in writing after she
defaulted in 2008, nor did she make payments on the debt
after she defaulted. More than seven years after the debt was
charged off, Ms. Smith was sued by Cavalry in state court.
After she received the state-court summons and complaint, she
called the phone number listed on the paperwork, which was
associated with Lloyd & McDaniel, PLC. She spoke with
attorney Kuperman, and Ms. Smith alleges that during their
conversation, Ms. Kuperman demanded that she begin paying
monthly on the debt, and also asked for Ms. Smith's
social security number and checking account information. It
does not appear that Ms. Smith provided any of this
information to Ms. Kuperman. Instead, she hired a lawyer, and
on August 8, 2016, her lawyer filed a motion to dismiss the
state-court debt-collection action, arguing that the suit was
barred by Arkansas' five-year statute of limitations on
debt collection. In short order, Cavalry moved to dismiss the
case, and the state court dismissed it on August 19, 2016.
case at bar, Ms. Smith asserts violations of the Fair Debt
Collection Practices Act ("FDCPA") (Count 1), the
Arkansas Fair Debt Collection Practices Act
("AFDCPA") (Count 2), abuse of process (Count 3),
and malicious prosecution (Count 4)-all of which purportedly
arise from Cavalry's attempt to collect the time-barred
debt in state court. Defendants' Motion to Dismiss,
however, only contemplates the dismissal of the abuse of
process and malicious prosecution claims. Defendants argue
that these two claims were not pleaded with sufficient detail
to state plausible claims for relief. Defendants Kuperman and
Lloyd & McDaniel, PLC, separately argue that they are
completely immune from civil liability for these torts
pursuant to the Arkansas attorney-immunity statute, codified
at Ark. Code Ann. § 16-22-310.
Smith believes that the Amended Complaint contains enough
facts to state plausible claims for abuse of process and
malicious prosecution, and further, that the
attorney-immunity statute does not apply here because
Kuperman and her law firm committed material omissions and
misrepresentations that constitute fraud or some other
intentional tort. Below, the Court considers the merits of
initial matter, the distinction between a motion for judgment
on the pleadings brought under Fed.R.Civ.P. 12(c) and a
motion to dismiss brought under Fed.R.Civ.P. 12(b)(6)
"is purely formal, because we review [a] 12(c) motion
under the standard that governs 12(b)(6) motions."
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th
Cir. 1990). To survive the Motion, the Amended Complaint must
present "a short and plain statement of the claim that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). The intention of this is to "give the defendant
fair notice of what the... claim is and the grounds upon
which it rests." Erickson v. Pardus, 551 U.S.
89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). In evaluating the sufficiency of
the Amended Complaint, the Court assumes that "all
factual allegations in the pleadings are true and interprets]
them in the light most favorable to the nonmoving
party." Bell v. Pfizer, Inc., 716 F.3d 1087,
1091 (8th Cir. 2013) (internal quotation omitted).
so, the Amended Complaint "must contain sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (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. "A pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement.'"
Id. (quoting Twombly, 550 U.S. at 555). In
short, "the pleading standard that Rule 8 announces does
not require 'detailed factual allegations, ' but it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Id.
(quoting Twombly, 550 U.S. at 555).