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Clark v. Pinnacle Credit Services

United States District Court, M.D. Georgia, Macon Division

March 3, 2017

ROBERT D. CLARK, Plaintiff,
v.
PINNACLE CREDIT SERVICES, et al., Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE

Defendants Pinnacle and Verizon move to dismiss Clark's complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 12. Clark did not respond. For the following reasons, the Motion is GRANTED in part and DENIED in part.

         I. THE ALLEGATIONS

         On June 14, 2016, Clark filed a complaint against Verizon, Pinnacle, and ten unnamed employees of the Defendants (DOES 1-10). Doc. 1. Clark alleges Defendant Pinnacle and its employees, on behalf of Defendant Verizon, attempted to collect a defaulted debt owed to Verizon by “repeatedly and willfully plac[ing] calls to [his] cellular telephone number” without his consent using an “automatic telephone dialing system.” Doc. 1 ¶¶ 20, 25-26. The phone calls allegedly took place “within the last four years prior” to Clark filing his complaint. Id. ¶¶ 24, 35. Based on this conduct, Clark, in Count I, alleges Pinnacle violated the Fair Debt Collection Practices Act (FDCPA). Doc. 1 ¶¶ 45-49. Additionally, Clark makes the following allegations against Verizon and Pinnacle:

● Count II alleges violations of the Telephone Consumer Protection Act (TCPA). Id. ¶¶ 50-59.
● Count III alleges an invasion of privacy by intrusion upon seclusion. Id. ¶¶ 60-70.
● Count IV alleges a violation of Georgia's Fair Business Practices Act (GFBPA). Id. ¶¶ 71-76.
● Count V alleges “unreasonable collection practices.” Id. ¶¶ 77-81. . Count VI alleges a violation of Clark's “right to be left alone.” Id. ¶¶ 82-86.
● Count VII brings a claim for punitive damages. Id. ¶¶ 87-88.

         II. DISCUSSION

         A. Motion to Dismiss Standard

         The Federal Rules of Civil Procedure require that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid dismissal pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter to “‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006) (quotation marks and citation omitted). Courts “need not accept as true, however, conclusory legal allegations made in the complaint.” Andrx Pharm., Inc. v. Elan Corp., PLC, 421 F.3d 1227, 1230 n.1 (11th Cir. 2005). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation marks and citation omitted). Where there are dispositive issues of law, a court may dismiss a claim regardless of the alleged facts. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

         B. FDCPA Claim

         In Count I, Clark claims Pinnacle violated the FDCPA through the automated telephone calls over the past four years and by re-opening Clark's credit report in 2014. Doc. 1 ¶¶ 45-49. Pinnacle argues this claim is barred by the FDCPA's one year statute of limitations and that a continuing violation theory does not apply. Doc. 12-1 at 3; see generally 15 U.S.C. § 1692k(d) (“An action may be brought in any appropriate United States district court . . . within one year ...


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