United States District Court, M.D. Georgia, Macon Division
PHILLIP GILMORE, on behalf of himself and others similarly situated, Plaintiff,
USCB CORPORATION, Defendant.
T. TREADWELL, JUDGE
Phillip Gilmore filed a class action complaint against
Defendant USCB Corporation, asserting violations of the
Telephone Consumer Protection Act (“TCPA”) and
the Fair Debt Collection Practices Act (“FDCPA”).
Doc. 1. The Court granted Gilmore's motion to amend his
complaint. Doc. 14. After filing an answer, USCB Corporation
moved for judgment on the pleadings on Gilmore's FDCPA
claims pursuant to Federal Rule of Civil Procedure 12(c).
Doc. 20. For the following reasons, USCB Corporation's
motion (Doc. 20) is DENIED.
asserts that, “[s]ometime in 2017, ” USCB
Corporation began calling his cellular telephone number in an
attempt to collect an alleged debt. Doc. 13-1 ¶ 22.
Specifically, Gilmore alleges that USCB Corporation placed at
least one call on February 24, 2017 and another on February
28, 2017. Id. ¶ 23. Upon answering the call on
at least one occasion, Gilmore states that a pre-recorded
voice asked for a person named Johnny Lancaster and that he
informed USCB Corporation that it had the wrong number.
Id. ¶¶ 29-31. Notwithstanding this
conversation, Gilmore alleges USCB Corporation “placed
additional calls to [his] cellular telephone number.”
Id. ¶ 24.
on USCB Corporation's continued calls, Gilmore claims a
violation of 15 U.S.C. § 1692d of the FDCPA, which
prohibits harassment or abuse in connection with the
collection of a debt. Id. ¶ 80. USCB
Corporation moved for judgment on the pleadings, arguing that
Gilmore's amended complaint lacks sufficient facts to
establish a claim under § 1692d(5) and that Gilmore
lacks standing to bring such a claim because he is not a
“consumer” as defined by § 1692a(3). Doc.
20-1 at 8.
Legal Standard under Rule 12(c)
to Federal Rule of Civil Procedure 12(c), “[a]fter the
pleadings are closed-but early enough not to delay trial-a
party may move for judgment on the pleadings.”
“Judgment on the pleadings is appropriate when there
are no material facts in dispute and the moving party is
entitled to judgment as a matter of law.” Douglas
Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th
Cir. 2008) (citing Cannon v. City of W. Palm Beach,
250 F.3d 1299, 1301 (11th Cir. 2001)). “A motion for
judgment on the pleadings is subject to the same standard as
is a Rule 12(b)(6) motion to dismiss.” Provident
Mut. Life Ins. Co. of Philadelphia v. City of Atlanta,
864 F.Supp. 1274, 1278 (N.D.Ga. 1994).
avoid dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), and therefore also a Rule 12(c) motion for judgment
on the pleadings, 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). However, “where 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 Cty. Bd. of Educ. v. Marshall
Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
Claims under Section 1692d
not clear, Gilmore seems to assert two claims under §
1692d of the FDCPA: one for a violation of subsection (5) and
one under the section generally.Docs. 13-1 ¶ 3; 24 at 5.
Section 1692d provides, in relevant part, the following:
A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt. Without
limiting the general application of the foregoing, the
following conduct is a violation of this section:
(5) Causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent
to annoy, abuse, or harass any person at the called number.
support of its motion, USCB Corporation cites numerous
district court cases holding that the plaintiffs failed to
make out claims under the FDCPA where the defendant
collection agencies made many more calls and at a much
greater frequency than in the present case. Doc. 20-1 at 6-7.
However, as Gilmore correctly points out, in all of those
cases, the various district courts decided the issue at the
summary judgment stage of the litigation once the factual
records had been established. Doc. 24 at 1. In the present
case, discovery is ongoing, and the number and timing of the
calls made to Gilmore ...