United States District Court, M.D. Georgia, Macon Division
ROBERT D. CLARK, Plaintiff,
PINNACLE CREDIT SERVICES, et al., Defendants.
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.
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. ¶¶
● 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.
Motion to Dismiss Standard
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).
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 ...