United States District Court, W.D. Arkansas, El Dorado Division
HEATHER JONES a/k/a HEATHER DEMPSEY, individually, and on behalf of all others similarly situated PLAINTIFF
ECONOMIC RECOVERY CONSULTANTS, INC. and JOHN DOES 1-25 DEFENDANT
O. Hickey United States District Judge
the Court is a Motion for Judgment on the Pleadings filed by
Defendant Economic Recovery Consultants, Inc.
(“Defendant”). ECF No. 7. Plaintiff has filed a
response. ECF No. 13. The Court finds this matter ripe for
its consideration. For the reasons explained below,
Defendant's motion is granted.
action arises under the Fair Debt Collection Practices Act,
15 U.S.C. §§ 1692, et seq.
(“FDCPA”). Defendant is a “debt
collector” within the meaning of FDCPA, with its
principal place of business in Searcy, Arkansas. ECF No. 1,
¶ 6. According to the Complaint, Plaintiff allegedly
incurred a debt to Ouachita County Medical Center
(“Ouachita Medical”) for medical services
provided to Plaintiff. Id. at ¶ 20. Defendant
contracted with Ouachita Medical to collect the alleged debt.
Id. at ¶ 23. On January 31, 2018, Plaintiff
received a collection letter from Defendant demanding payment
on her past due account with Ouachita Medical. Id.
at ¶ 25. The top paragraph of the letter reads
“Please be advised that your account has been assigned
to [Defendant]. You are directed to address all future
correspondence and payments concerning this account to the
address below.” Id. at ¶ 30. Plaintiff
alleges, however, that the letter “fails to provide any
address below this language where the consumer can dispute or
get information about the debt.” Id. at ¶
31. It is further alleged that the only information below the
paragraph is a phone number for Defendant's collection
department. Id. at ¶ 31.
April 27, 2018, Plaintiff, on behalf of herself and all other
similarly situated consumers, filed a putative class action
complaint against Defendant, alleging two violations of the
FDCPA stemming from the collection letter. Specifically,
Plaintiff alleges that Defendant “made deceptive and
misleading representations when [it] sought to collect a debt
from Plaintiff but failed to provide an address where [it]
could be contacted, in violation of 15 U.S.C. §§
1692 and 1692e(10).” Id. at ¶ 37. In
addition, Plaintiff asserts that Defendant violated 15 U.S.C.
§ 1692g because the letter failed “to clearly
display the address to send disputes” and only provided
a phone number, thereby causing consumers' rights to be
limited. Id. at ¶ 42.
6, 2018, Defendant filed the instant motion pursuant to
Federal Rule of Civil Procedure 12(c), arguing that
Plaintiffs allegations regarding the collection letter are
unsupported by the contents of the letter. Specifically,
Defendant asserts that its address is listed below the
directive to “address all future correspondence and
payments concerning this account to the address below.”
Defendant further contends that its address is listed at the
top of the letter. According to Defendant, an unsophisticated
consumer would not be misled as to its mailing address. Thus,
the letter is not deceptive or violative of the FDCPA as a
matter of law, according to Defendant. With this background
in mind, the Court will turn to the merits of the instant
motion for judgment on the pleadings under Rule 12(c), a
court shall apply the same legal standard as it does for a
motion to dismiss under Rule 12(b)(6). Ashley Cnty., Ark.
v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). A
pleading must state “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To meet this standard and to survive a
Rule 12(b)(6) motion, a complaint need only state factual
allegations sufficient to raise a right to relief above the
speculative level that is plausible on its face. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
deciding a Rule 12(b)(6) motion, courts are required to
accept all of the complaint's well-pled allegations as
true and resolve all inferences in the plaintiff's favor.
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d
928, 933 n.4 (8th Cir. 2012). However, this tenet does not
apply to legal conclusions, “formulaic recitation of
the elements of a cause of action, ” or naked
assertions which are so indeterminate as to require further
factual enhancement. Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). “Judgment
on the pleadings is appropriate only when there is no dispute
as to any material facts and the moving party is entitled to
judgment as a matter of law.” Wishnatsky v.
Rovner, 433 F.3d 608, 610 (8th Cir. 2006).
considering a motion for judgment on the pleadings, a court
must generally ignore all materials outside the pleadings.
Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999). However, courts may consider
“some materials that are part of the public record or
do not contradict the complaint . . . as well as materials
that are necessarily embraced by the pleadings.”
Id. (internal quotation marks omitted). Thus, the
Court will decide the instant motion under the Rule 12(b)(6)
Whether the Complaint Fails to State a Claim Under 15 U.S.C.
first argues that it is entitled to judgment on the pleadings
as to Count I of Plaintiff's Complaint. Count I of the
Complaint alleges that Defendant violated 15 U.S.C. §
1692e, which prohibits debt collectors from using “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. Section 1962e(10) makes it unlawful to use
“any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information
concerning a consumer.” “In evaluating whether a
debt collection letter is false, misleading or deceptive, the
letter must be viewed through the eyes of the unsophisticated
consumer.” Duffy v. Landberg, 215 F.3d 871,
873 (8th Cir. 2000) (citation omitted). “This standard
is designed to protect consumers of below average
sophistication or intelligence without having the standard
tied to the very last rung on the sophistication
ladder.” Haney v. Portfolio Recovery Assocs.,
L.L.C., No. 15-1932, 2016 WL 11265606, at *4 (8th Cir.
Sept. 21, 2016) (citations and quotations omitted). Although
the standard “protects the uninformed or naive consumer
. . . [it] also contains an objective element of
reasonableness to protect debt collectors from liability for
peculiar interpretations of collection letters.”
Id. “Language in a debt-collection letter
cannot be viewed in isolation; the letter must be viewed
‘as a whole' to determine whether it runs afoul of
the FDCPA.” Hubbell v. Am. Accounts & Advisors,
Inc., No. 13-1157, 2013 U.S. Dist. LEXIS 160315, at *6
(D. Minn. Oct. 7, 2013) (citing Adams v. J.C. Christensen
& Assocs., Inc., 777 F.Supp.2d 1193, 1196 (D. Minn.
instant motion, Defendant takes the position that “no
reasonable consumer could be harassed, misled or deceived as
to [its] mailing address by the contents” of the
letter. ECF No. 8, p. 7. In support of this position,
Defendant points to a payment slip located at the bottom of
the letter which directs the recipient, in bold text, to
“detach and return with your payment.” ECF No.
8-1. Defendant maintains further that its mailing address is
also located in the top left corner of the letter.
Id. In addition, Defendant asserts that its local
and toll-free telephone numbers are printed at the top and in
the body of the letter, and its ...