United States District Court, S.D. Georgia, Augusta Division
MIN. NEGUS KWAME FAHIM ASIEL-DEY, Plaintiff,
SANTANDER CONSUMER USA, INC., Defendant.
RANDAL HALL, CHIEF JUDGE
proceeding pro se, initiated this action on January
11, 2017. (Doc. 1.) In his complaint, Plaintiff alleges
violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq. ("FDCPA") by
Defendant Santander Consumer USA, Inc. ("SC").
While Plaintiff's factual allegations are not a model of
clarity, he appears to assert that Defendant S.C. sent him
letters on December 1, 2015 and January 12, 2016 and that
these letters and/or their contents were in violation of the
FDCPA. [Id. ¶¶ 3, 6-7.) On
June 9, 2017, Defendant S.C. filed its present motion to
dismiss on the grounds that Plaintiff's complaint failed
to state a claim upon which relief could be granted. (Doc.
10.) Plaintiff did not file a response in opposition to
Defendant SC's motion to dismiss.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court tests the legal sufficiency of
the complaint, not whether the plaintiff will ultimately
prevail on the merits. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) . The Court must accept as true all facts
alleged in the complaint and construe all reasonable
inferences in the light most favorable to the plaintiff.
See Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225
(11th Cir. 2002). Conversely, the Court need not accept the
complaint's legal conclusions as true - only its
well-pleaded facts. Ashcroft v. Iqbal, 556 U.S. 662,
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Id. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. (citing Twombly, 550 U.S. at 566). "The
plausibility standard is not akin to a 'probability
requirement/ but it asks for more than a sheer possibility
that a defendant has acted unlawfully." Id. And
"[w]hile a trial judge is to employ less stringent
standards in assessing pro se pleadings than would
be used to judge the final product of lawyers, this leniency
does not permit the district court to act as counsel for a
party or to rewrite deficient pleadings."
Lampkin-Asam v. Volusia Cty. Sch. Bd., 261 Fed.Appx.
274, 276-77 (11th Cir. 2008); see also Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989) ("All
persons, regardless of wealth, are entitled to reasonable
access to the courts. . . . Still, once a pro se . .
. litigant is in court, he is subject to the relevant law and
rules of court, including the Federal Rules of Civil
Procedure."); In re Unsolicited Letters to Fed.
Judges, 120 F.Supp.2d 1073, 1074 (S.D. Ga. 2000)
("[C]ourts do and should show a lenience to pro
se litigants not enjoyed by those with the benefit of a
legal education. Yet even in the case of pro se
litigants this leniency does not give a court license to
serve as de facto counsel for a party, or to rewrite
an otherwise deficient pleading in order to sustain an
action." (citations omitted)).
Plaintiff has failed to state a plausible claim for relief
under the FDCPA against Defendant SC. In order to state a
plausible claim for relief under the relevant provisions of
the FDCPA cited in Plaintiff's complaint, Plaintiff must
allege, inter alia, "that the defendant is a
debt collector." See Reese v. Ellis, Painter,
Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th
Cir. 2012); see also 15 U.S.C. § l692c(a)
("Without the prior consent of the consumer given
directly to the debt collector or the express permission of a
court of competent jurisdiction, a debt collector
may not communicate with a consumer in connection with the
collection of any debt . . . ." (emphasis added)); 15
U.S.C. § l692e ("A debt collector may not
use any false, deceptive, or misleading representation or
means in connection with the collection of any debt, "
(emphasis added)); 15 U.S.C. § l692g(a) ("Within
five days after the initial communication with a consumer in
connection with the collection of any debt, a debt
collector shall, unless the following information is
contained in the initial communication or the consumer has
paid the debt, send the consumer a written notice containing
. . . ." (emphasis added)). The FDCPA defines a
"debt collector" as "any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another." 15 U.S.C. § l692a(6).
Excluded from this definition of "debt collector, "
(A) any officer or employee of a creditor while, in the name
of the creditor, collecting debts for such creditor; (B) any
person while acting as a debt collector for another person,
both of whom are related by common ownership or affiliated by
corporate control, if the person acting as a;debt collector
does so only for persons to whom it i is so related or
affiliated and if the principal business of such person is
not the collection of debts; (C) any officer or employee of
the United States or any State to the extent that collecting
or attempting to collect any debt is in the performance of
his official duties; (D) any person while serving or
attempting to serve legal process on any other person in
connection with the judicial enforcement of any debt; (E) any
nonprofit organization which, at the request of consumers,
performs bona fide consumer credit counseling and assists
consumers in the liquidation of their debts by receiving
payments from such consumers and distributing such amounts to
creditors; and (F) any person collecting or attempting to
collect any debt owed or due or asserted to be owed or due
another to the extent such activity (i) is incidental to a
bona fide fiduciary obligation or a bona fide escrow
arrangement; (ii) concerns a debt which was originated by
such person; (iii) concerns a debt which was not in default
at the time it was obtained by such person; or (iv) concerns
a debt obtained by such person as a secured party in a
commercial credit transaction involving the creditor.
Id.; but see id. ("Notwithstanding the
exclusion provided by clause (F) of the last sentence of this
paragraph, the term includes any creditor who, in the process
of collecting his own debts, uses any name other than his own
which would indicate that a third person is collecting or
attempting to collect such debts.").
complaint, Plaintiff conclusorily alleges that, "[t]o
the best of [his] belief and information, [Defendant SC] . .
. is a debt collector as defined in 15 U.S.C. §
1692(a)(6) . . ." (Doc. 1, ¶ 3.) Notably, however,
Plaintiff does not provide any factual support for these
legal conclusions. See Iqbal, 556 U.S. at 678
("[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." (citing Twombly, 550 U.S. at
555)); Papasan v. Allain, 478 U.S. 265, 286 (1986)
("Although for the purposes of this motion to dismiss we
must take all the factual allegations in the complaint as
true, we are not bound to accept as true a legal conclusion
couched as a factual allegation."). For example,
Plaintiff does not describe the debts that Defendant S.C.
attempted to collect,  identify the originating creditor for
these debts, or state whether these debts were in default at
the time they were obtained by Defendant SC. Indeed,
Plaintiff does not even conclusorily allege that Defendant
S.C. engages in "business the principal purpose of which
is the collection of any debts" or that it ;
"regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due
another." See 15 U.S.C. § l692a(6).
Moreover, Plaintiff has not attached any relevant exhibits to
his complaint from which the Court can infer that Defendant
S.C. is indeed a debt collector or is otherwise liable under
the FDCPA. Accordingly, Plaintiff has failed to plead
sufficient factual content that would allow this Court
"to draw the reasonable inference that [Defendant SC] is
liable for the misconduct alleged" and his claims
against Defendant S.C. are therefore subject to dismissal.
See Iqbal, 556 U.S. at 678.
the foregoing and due consideration, IT IS HEREBY
ORDERED that Defendant SCs motion to dismiss (doc.
10) is GRANTED due to Plaintiff's
failure to state a claim upon which relief can be granted.
The Court, however, recognizes Plaintiff is proceeding
pro se and will therefore give him an opportunity to
attempt to cure his pleading deficiencies by amending his
complaint with regards to Defendant SC. Accordingly,
IT IS FURTHER ORDERED that,
should Plaintiff wish to proceed forward with this case,
Plaintiff SHALL FILE his amended complaint
by the close of business on MARCH 15,
2018. Plaintiff's failure to timely file his
amended complaint and address the pleading deficiencies
identified herein as directed may result in the dismissal
with prejudice of his claims against Defendant S.C. -and the
closure of this case - without further notice.
 Plaintiff is also known as Ronnie
Theodis Demmons. (See Doc. 1, at 4.)
 In his complaint, Plaintiff also
alleged various state and federal law claims against another
defendant, Verley Matthew Craps. (Doc. 1, ¶¶ 4-5.)
On April 21, 2017, the United States Magistrate Judge entered
an Order in which he directed Plaintiff to explain his
failure to timely serve Defendant Craps. (Doc. 5.) On May 8,
2017, Plaintiff filed his response to the Magistrate
Judge's Order, in which he stated tnat he sent Defendant
Craps a waiver of service form on April 11, 2017 and
requested additional time to serve Defendant Craps. (Doc. 8.)
On May 19, 2017, the Magistrate Judge granted Plaintiff until
June 19, 2017 to serve Defendant Craps and explicitly warned
Plaintiff that his failure to timely serve Defendant Craps
would result in a recommendation that Defendant Craps be
dismissed from this case. (Doc. 9.) Plaintiff failed to
provide the Court with proof of service on Defendant Craps or
otherwise explain the failure of service thereon. (See Doc.
11, at 2.) Accordingly, on June 26, 2017, the Magistrate
Judge entered his Report and Recommendation
("R&R") wherein he recommended that
Plaintiff's claims against Defendant Craps be dismissed
without prejudice. (Id. at 2-3.) Plaintiff did not