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Middleton v. Parrish Snead Franklin Simpson, PLC

United States District Court, D. Nevada

February 27, 2017




         The defendant law firm, Parish Snead Franklin Simpson, PLC, was hired by a homeowner's association in Virginia to collect outstanding fees that plaintiff Ervin Middleton allegedly owed it for his Virginia home. The firm sent emails to Middleton and called him, asking him to pay the debt. Middleton, who now lives in Nevada, brought this case claiming that the firm's communications violated the Fair Debt Collection Practices Act (“FDCPA”), the Telephone Consumer Protection Act (“TCPA”), and Nevada law requiring debt collection companies to register with the state. He sued the homeowner's association (The Meadows at England Run), the law firm, and several of the firm's attorneys.

         The defendants move to dismiss, arguing that Middleton's complaint is devoid of any specific facts that might make any of his claims plausible. The homeowner's association additionally argues that it should be dismissed because this court has no personal jurisdiction over it because it has never had any contact with Nevada.

         I grant the defendants' motions to dismiss. The complaint provides no specific allegations to support a claim against the law firm's attorneys, there are no allegations suggesting that the homeowner's association had any contact with Nevada that might justify personal jurisdiction here, and as to the law firm the complaint fails to allege enough specific facts to make any of Middleton's claims plausible.

         I. BACKGROUND

         Middleton's complaint includes only a handful of allegations.[1] He received a letter about a debt he owed from a defendant (he does not specify which).[2] Middleton faxed this single defendant back, asking for verification of the debt.[3] This mystery defendant then sent Middleton two additional letters, two emails, and called him four times.[4]

         Middleton's complaint alleges three claims against all of the defendants: (1) violation of the FDCPA by making false statements, using deception, failing to inform Middleton of his rights, and continuing to contact Middleton after he had disputed the debt; (2) violation of the TCPA by calling him with an “automatic telephone dialing system” despite that his number is on a “Do Not Call” list; and (3) consumer fraud because defendants attempted to collect a debt in Nevada without first registering as a debt collector with the state.[5] Middleton does not allege that any of the defendants resides in Nevada or have had any contacts with Nevada. He also does not specify which defendants committed the underlying acts for each of this three claims, simply referring to the defendants collectively as “Defendant.”[6]

         II. ANALYSIS

         A. Legal standard for motions to dismiss.

         A properly pleaded complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”[7] While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”[8] “Factual allegations must be enough to rise above the speculative level.”[9] Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.”[10] The Ninth Circuit explained these standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011):

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.[11]

         Even though a pro se litigant's complaint is held “to less stringent standards than formal pleadings drafted by lawyers, ”[12] it nevertheless must comply with these rules.[13]

         B. All of Middleton's claims fail because he did not give each defendant fair notice of the factual allegations against them and because he otherwise fails to provide sufficient facts to support any of his claims.

         A plaintiff cannot simply offer broad allegations against all of the defendants lumped together, but instead must give each defendant fair notice of the factual allegations asserted against them individually.[14] Middleton does not specify which defendant sent him letters or called him, and he does not otherwise provide any factual allegations from which the defendants could divine what each of them is alleged to have done to be liable for Middleton's claims. This is enough reason to dismiss the complaint.

         But even if it had specified what each defendant did, the complaint does not contain enough allegations to make any of his claims plausible. First, there are no allegations to support Middleton's FDCPA claims. No specific facts are pleaded to suggest that any of the defendants is a “debt collector” as the FDCPA requires.[15] Nor are there enough allegations establishing that the defendants were attempting to collect on the sort of consumer debt that falls within the FDCPA.[16]There are also insufficient supporting facts to make plausible Middleton's claims that any of the defendants violated the FDCPA by committing fraud, using deception, or failing to disclose information to him.[17]

         Second, as to the TCPA claims, Middleton does not allege any specific facts that allow me to plausibly infer that any of the defendants used an automatic dialer, a required element of a claim under this statute.[18] Middleton also fails to provide any specific facts about what defendants said, or failed to say, in their calls that might violate the TCPA.[19] Middleton's allegations also appear to fall squarely under the TCPA's exceptions for calls made between those who have a business relationship or calls made for a commercial purpose other than unsolicited advertisements.[20]

         Finally, Middleton fails to allege any facts to support his Nevada claims. Middleton seems to claim that the defendants committed consumer fraud against him by operating as debt collectors in Nevada without properly registering in this state. To sustain a cause of action for consumer fraud, Middleton must show that “(1) an act of consumer fraud by the defendant (2) caused (3) damage to [him].”[21] Middleton fails to offer any specific facts plausibly suggesting that defendants are even operating as debt collectors in this state so that they need to register.[22]Finally, Middleton has not alleged any specific damages caused by the defendants' alleged failure to register.[23]

         Because Middleton has failed to allege sufficient facts to support any of his claims, his complaint must be dismissed.

         C. I dismiss the claims against the homeowner's association with prejudice, but I dismiss the claims against the law firm ...

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