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Gilmore v. USCB Corp.

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

November 9, 2017

PHILLIP GILMORE, on behalf of himself and others similarly situated, Plaintiff,
v.
USCB CORPORATION, Defendant.

          ORDER

          MARC T. TREADWELL, JUDGE

         Plaintiff 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.

         I. BACKGROUND

         Gilmore 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.

         Based 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.

         II. DISCUSSION

         A. Legal Standard under Rule 12(c)

         Pursuant 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).

         To 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).

         B. Claims under Section 1692d

         Although 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.[1]Docs. 13-1 ¶ 3; 24 at 5. Section 1692d provides, in relevant part, the following:

A debt collector[2] 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.

         In 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 ...


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