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Leato v. Teachers Credit Union and Tri-Force, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

September 10, 2019

JOHN LEATO; LAURINA LEATO; and MELISSA GLAROS PLAINTIFF
v.
TEACHERS CREDIT UNION and TRI-FORCE, INC. DEFENDANTS

          OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         John and Laurina Leato, husband and wife, and Melissa Glaros, the mother of the Leatos' five-year-old grandchild, filed this lawsuit under the Fair Debt Collection Practices Act ("FDCPA"). They proceed pro se and in forma pauperis ("IFP"). Plaintiffs have named as Defendants Teachers Credit Union and Tri-Force, Inc. The case is before the Court for pre-service screening pursuant to 28 U.S.C. § 1915(e)(2).

         I. BACKGROUND

         According to the allegations of the Complaint, the Defendants are engaged in the collection of debts within the State of Indiana. Plaintiffs allege the principal purpose of the Defendants' businesses is the collection of debts allegedly owed to third parties.

         Within the past year, Plaintiffs allege that Defendants attempted to collect a consumer debt from them. Plaintiffs reside in Arkansas. Plaintiffs allege that the Defendants attempted to collect a debt by means of robo-calling. Plaintiffs state the robo-calling began after they had sent "cease and desist" communication notices to all parties.

         Specifically, Plaintiffs allege that within the past year, [1] two identical voicemail messages were left for Mrs. Leato. The messages were as follows:

This message is solely intended for, Laurina Leato, if you are not this individual please disconnect the call at this time, and do not listen to this message. If you are Laurina Leato, please do not hang up. This is a second documented attempt to reach you regarding a complaint. We are in the process of pursuing this matter, applicable to the laws of your state. To avoid further action please press one to speak to a claims specialist in our office. If you are unable to speak to a claims specialist at this moment please return this call to 704-585-8987. Again that number is 704-585-8987. Your complaint number is 2018362740.

         Plaintiffs further allege that the voicemail messages did "not state the call was from Tri-Force, Inc. ADAM SHAW-PRIVATE INVESTIGATOR, skip tracers on behalf of TEACHERS CREDIT UNION." The messages also failed to state the call was in connection with an attempt to collect a debt.

         Plaintiffs allege that the Defendants violated the FDCPA in the following ways: (1) failing to disclosure the caller's identity when attempting to collect a debt; (2) engaging in conduct that was designed to harass, oppress, and abuse Plaintiffs in connection with the collection of a debt; (3) threatening to take legal action when they did not intend to take such action; (4) threatening to take action that cannot legally be taken and was not intended to be taken; and (5) leaving voicemail messages without stating that the communication was an attempt to collect a debt.

         II. LEGAL STANDARD

         The Court is obligated to screen an IFP case prior to service of process being issued. A claim is frivolous when it "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court bears in mind, however, that when "evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold 'a pro se complaint, however inartfully pleaded, ... to less stringent standards than formal pleadings drafted by lawyers.'" Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

         III. DISCUSSION

         The first issue the Court must address is whether each of the named Plaintiffs has standing to pursue this case. Article III of the United States Constitution extends the "judicial power" of the federal courts only to concrete "Cases" and "Controversies." U.S. Const, art. Ill. § 2. "To have standing, a 'plaintiff must have ... suffered an injury in fact.'" Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 690 (8th Cir. 2017) (quoting Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)). The Eighth Circuit summarized the concept as follows:

To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. A concrete injury must be de facto; that is, it must actually exist. Both tangible and intangible injuries can be concrete. At [the screening stage], ...

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