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Waterston v. Advance Bureau of Collections LLP

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

January 31, 2019

MEGHAN WATERSTON, Plaintiff,
v.
ADVANCE BUREAU OF COLLECTIONS LLP d/b/a ADVANCE BUREAU OF COLLECTIONS; KENNETH M. FRENCH; SHERRY L. JOHNSON; and JAMES W. DAVIS, Defendants

          ORDER GRANTING MOTION TO DISMISS

          TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Sherry L. Johnson's Motion to Dismiss Plaintiff's Amended and Recast Complaint [Doc. 56].[1] For the reasons discussed below, the Court GRANTS this motion and DISMISSES Plaintiff's claims against Defendant Johnson without prejudice.

         STANDARD OF REVIEW

         A motion to dismiss tests the sufficiency of the allegations in a plaintiff's complaint. Acosta v. Campbell, 309 Fed.Appx. 315, 317 (11th Cir. 2009). A complaint survives a motion to dismiss if it pleads “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But the Court need not accept as true “[t]hreadbare recitals of the elements of a cause of action” or “conclusory statements.” Iqbal, 556 U.S. at 678. Thus, to decide whether a complaint survives a motion to dismiss, district courts are instructed to use a two-step framework. See McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018). The first step is to identify the allegations that are “no more than mere conclusions.” Id. (quoting Iqbal, 556 U.S. at 679). “Conclusory allegations are not entitled to the assumption of truth.” Id. (citation omitted). After disregarding the conclusory allegations, the second step is to “assume any remaining factual allegations are true and determine whether those factual allegations ‘plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679).

         BACKGROUND

         This is the fifth motion to dismiss Defendants have filed in this case. See [Docs. 17, 32, 42 & 45]. The Court terminated the first and second Motions to Dismiss [Docs. 17 & 32] after Plaintiff filed a Consent Motion to Dismiss [Doc. 49] the parties that filed those motions. See [Doc. 51]. Defendants James W. Davis and Sherry L. Johnson then filed separate motions to dismiss. See [Docs. 42 & 45]. The Court issued a single order denying those motions as to Plaintiff's Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) claims but granting those motions as to Plaintiff's negligence claims. [Doc. 53, at p. 1]. In the same Order, the Court directed Plaintiff to file a recast complaint because her original Complaint [Doc. 1] was “tantamount to a shotgun pleading”-a fact she essentially conceded.[2] [Doc. 53, at p. 8]; [Doc. 52, at p. 7 n.21]. Complying with the Court's previous Order, Plaintiff filed a Recast Complaint [Doc. 54] adding additional factual allegations and clarifying her claims under the FDCPA. In response to Plaintiff's Recast Complaint, Defendant Johnson filed the Motion to Dismiss Plaintiff's Amended and Recast Complaint [Doc. 56] now before the Court. The Court recites the facts of this case as alleged in Plaintiff's Recast Complaint as required by the standard of review applicable to motions to dismiss.

         Plaintiff's claims are based on Defendants' efforts to collect a debt Plaintiff owed for medical services provided by Primary Pediatrics (“Primary”), a previously dismissed party in this action. [Doc. 54, at ¶¶ 30 & 34-37]. Plaintiff alleges that, although she originally owed the debt to Primary, Primary transferred it to Defendant Advance Bureau of Collections LLP (“ABC”) after the debt went into default. [Id. at ¶¶ 32 & 33]. Defendants ABC and Kenneth M. French then allegedly hired Defendants Davis and Johnson “to file suit against Plaintiff to collect the debt.”[3] [Id. at ¶ 34]. Plaintiff alleges that Defendants ABC and French prepared a form statement of claim that Defendant Johnson notarized despite not witnessing Defendant French sign the document. [Id. at ¶¶ 36, 52 & 53]. Defendants then filed the statement of claim in Bibb County Magistrate Court.[4] [Id. at ¶¶ 37 & 38]. Plaintiff alleges that Defendants filed the statement of claim in the name of Primary, several individual Primary employees, and Defendant Davis even though “Defendants were not authorized to bring the Suit in the name of [Primary and its employees]” and Defendant Davis was never “assigned any obligation or debt owed by Plaintiff.” [Id. at ¶¶ 40-47]. Plaintiff asserts that Defendants filed the suit in this way to “instill a belief in the Plaintiff that her children would be unable to receive future medical care from those providers.” [Doc. 54, at ¶ 44].

         Plaintiff alleges that Defendants violated the FDCPA by:

• “Creating the false impression and/or misrepresentation that there had been meaningful attorney involvement” in filing the statement of claim in violation of 15 U.S.C. § 1692e. [Id. at ¶ 74(i)].
• Seeking to collect an amount greater than what they were legally authorized to collect in violation of 15 U.S.C. §§ 1692e & 1692f(1). [Id. at ¶¶ 74(ii) & 74(vi)].
• Making false statements in the attestation clause of the statement of claim in violation of 15 U.S.C. § 1692e. [Id. at ¶ 74(iv)].
• Unfairly and deceptively “filing suit in the name of individuals and entities the Defendants were not authorized to represent and whom Plaintiff owed no obligation” in violation of 15 U.S.C. §§ 1692e & 1692f. [Id. at ¶¶ 74(iii) & 74(v)].

         Plaintiff further alleges that Defendant ABC violated the Georgia Fair Business Practices Act, Ga. Code Ann. § 10-1-390 et seq. ...


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