United States District Court, M.D. Georgia, Macon Division
ORDER GRANTING MOTION TO DISMISS
E. SELF, III, JUDGE UNITED STATES DISTRICT JUDGE
the Court is Defendant Sherry L. Johnson's Motion to
Dismiss Plaintiff's Amended and Recast Complaint [Doc.
For the reasons discussed below, the Court
GRANTS this motion and
DISMISSES Plaintiff's claims against
Defendant Johnson without prejudice.
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).
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. [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.
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.” [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. [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].
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 ¶
• 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)
further alleges that Defendant ABC violated the Georgia Fair
Business Practices Act, Ga. Code Ann. § 10-1-390 et