Jimenez v. Cont'l Serv. Grp. Inc. Conserve, No. 17-CV-60270, 2017 WL 7726731, at *1–3 (S.D. Fla. Apr. 20, 2017)

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Jimenez v. Cont'l Serv. Grp. Inc. Conserve, No. 17-CV-60270, 2017 WL 7726731, at *1–3 (S.D. Fla. Apr. 20, 2017)

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Jimenez v. Cont'l Serv. Grp. Inc. Conserve, No. 17-CV-60270, 2017 WL 7726731, at *1–3 (S.D. Fla. Apr. 20, 2017)


*1 THIS CAUSE is before the Court upon Defendants Continental Service Group, Inc. and Conserve’s (together, “Defendants” or “Conserve”) Motion to Dismiss, ECF No. [8] (“Motion”).1 Pro se Plaintiff Nathalie Jimenez (“Jimenez”) filed a response, ECF No. [10] (“Response”), to which Defendants filed a reply, ECF No. [13] (“Reply”). The Court has carefully considered the Motion, the Response and Reply, the record in this case and the applicable law, and is otherwise fully advised. For the following reasons, the Motion is granted.

I. Background

This action stems from alleged errors or misrepresentations appearing on Jimenez’s credit reports. In the Complaint, Jimenez alleges that she ordered credit reports from Experian, TransUnion, and Equifax (collectively, “CRAs”), which showed an open collection account with Conserve, reflecting a past due amount of $464.00. Complaint ¶ 6. Jimenez thereafter sent a debt validation letter to Defendants, ECF No. [1] at 15-16 (“Debt Validation Letter”), as well as letters disputing the inaccurate reporting to the CRAs, ECF No. [1] at 11-13 (“Dispute Letters”). Id. ¶¶ 8-9. According to Jimenez, Defendants responded to her Debt Validation Letter, which response is attached to the Complaint, ECF No. [1] at 18-30 (“Validation Response”). Complaint ¶ 10. However, Jimenez alleges that Conserve did not validate the debt and continue collection activity. Id. As a result, Jimenez alleges that she has sustained damages. Id. ¶¶ 11-14. Defendants seek dismissal of the Complaint for failure to state a claim.

II. Legal Standard

A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “ ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). “To 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. (quoting Twombly, 550 U.S. at 570).

“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, “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”. GJR Inv., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citations omitted) (overruled on other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)); see also Giles v. Wal-Mart Distrib. Ctr., 359 Fed.Appx. 91, 93 (11th Cir. 2009). “[J]udges must not raise issues and arguments on plaintiffs' behalf, but may only construe pleadings liberally given the linguistic imprecision that untrained legal minds sometimes employ.” Bivens v. Roberts, 2009 WL 411527, at *3 (S.D. Ga. Feb. 18, 2009) (citing Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008)).

*2 When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). Through this lens, the Court evaluates the instant Motion.

III. Discussion

The Complaint asserts claims for violations by Defendants of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”) (Count I), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”) (Count II), and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55, et seq. (“FCCPA”) (Count III). In the Motion, Defendants argue that the factual allegations in the Complaint fall short of supporting the legal conclusions asserted by Jimenez in the Complaint. The Court considers each claim in turn.

A. FCRA (Count I)

Defendants contend that Jimenez fails to allege any actions by Defendant that would constitute a violation of section 1681b(f) of the FCRA. The Court agrees. Pursuant to 15 U.S.C. § 1681b(f),

A person shall not use or obtain a consumer report for any purpose unless—(1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and (2) the purpose is certified in accordance with section 1681e of this title by a prospective user of the report through a general or specific certification.

In the Complaint, Jimenez alleges only and conclusively that Conserve willfully violated the FCRA by obtaining her consumer report without a permissible purpose, and refers to Exhibit A, which is a copy of entries from Jimenez’s credit reports showing the reported debt to Conserve. See Complaint ¶ 18. However, Jimenez alleges that she ordered her own credit report, Complaint ¶ 6, which is contradictory to the conclusory allegation in paragraph 18. Furthermore, Jimenez does not appear to dispute the underlying debt, but rather takes issue with Defendants' right to collect it, alleging that she “has no prior or present established relationship with Defendant or contractual obligation to pay Defendant Conserve.” Id. ¶ 7. Without an allegation that Jimenez did not owe the underlying debt, the Complaint fails to support the conclusory allegation that Defendants obtained Plaintiff's consumer report without a permissible purpose. See Brown v. Encore Capital Grp. Inc., 2015 WL 1778380, at *5-6 (N.D. Ala. Apr. 20, 2015) (dismissing complaint where plaintiff alleged that she was not indebted to debt collector but failed to allege that she did not owe the debt) (internal citation omitted). Therefore the inference that Conserve obtained her credit reports in violation of the FCRA is not plausible based upon the facts alleged.

B. FDCPA (Count II)

*3 Defendants argue that the documents attached to the Complaint negate any potential cause of action against them under the FDCPA. Specifically, Jimenez alleges violations of 15 U.S.C. sections 1692d, 1692e(10), and 1692f. Complaint ¶¶ 26-28. In general, section 1692d prohibits harassment, oppression, or abuse of a person in connection with debt collection; section 1692e(10) prohibits the use of false, deceptive, or misleading representations or means by a debt collector in collecting a debt; and section 1692f prohibits the use of unfair or unconscionable means to collect a debt. Although Jimenez alleges in conclusory fashion that Defendants violated the FDCPA provisions, the exhibits attached to the Complaint demonstrate that in response to Jimenez’s Debt Validation Letter, Defendants sent a Validation Response, detailing the amount outstanding on Jimenez’s Broward College account, which was referred to Defendants for collections, due to Jimenez’s failure to pay. See ECF No. [1] at 19. In addition, Defendants provided back-up documents detailing the claimed amounts. See ECF No. [1] at 20-30.

“Indeed, when the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007). “Conclusory allegations and unwarranted deductions of fact are not admitted as true, especially when such conclusions are contradicted by facts disclosed by a document appended to the complaint. If the appended document ... reveals facts which foreclose recovery as a matter of law, dismissal is appropriate.” Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974).2

Upon review, the allegations in Jimenez’s Complaint are belied by the attached Validation Response. Furthermore, the sections of the FDCPA relied upon by Jimenez provide numerous types of behavior constituting a violation of the statute. Nevertheless, Jimenez does not provide any facts regarding the manner in which Defendants engaged in any behavior that would constitute a violation of the FDCPA.

C. FCCPA (Count III)

Defendants mount a similar attack to Jimenez’s claim for alleged violations of the FCCPA. Specifically, Jimenez alleges a violation of Florida Statutes section 559.72(9), which states in pertinent part, that “[i]n collecting consumer debts, no person shall: [c]laim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.” As with the FDCPA claim, the Court finds that the allegations in the Complaint are expressly belied by the materials included in the Validation Response. Furthermore, Jimenez does not dispute the legitimacy of the debt in the Complaint, but asserts only that she does not have a relationship or obligation to pay Conserve.

IV. Conclusion

Jimenez’s sole substantive argument in her Response is that Defendant “only talks about the facts that were attached to the Complaint as the Exhibits, but Defendant has failed to show pro[of] why is Defendant entitle[d] to collect on the alleged debt.” Response ¶ 16. However, a plaintiff in the first instance must allege sufficient facts to state a plausible claim for relief. As such, Plaintiff has requested leave to amend.

Accordingly, for the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants' Motion, ECF No. [8], is GRANTED. The Complaint is DISMISSED WITHOUT PREJUDICE, and Jimenez may file an amended complaint no later than April 28, 2017.

DONE AND ORDERED in Miami, Florida this 19th day of April, 2017.

All Citations
Slip Copy, 2017 WL 7726731


It is unclear whether Jimenez is asserting claims against one or more defendants. In the Complaint, ECF No. [1] (“Complaint”), Jimenez’s claims are directed toward “Conserve,” while the Motion is filed on behalf of two defendants, Continental Service Group, Inc. and Conserve. For purposes of this Order, the Court will assume, as have Defendants in their Motion, that the allegations in the Complaint apply to both Defendants.

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent former Fifth Circuit decisions handed down prior to September 30, 1981.
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