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Brailey v. F.H. Cann & Associates, Inc.

United States District Court, W.D. Louisiana

December 5, 2014


Garren Brailey, Plaintiff, Pro se, Abbeville, LA.

For F H Cann & Associates Inc, Defendant: Michael D Alltmont, LEAD ATTORNEY, Sessions Fishman et al (MET), Metairie, LA.




Pending before the undersigned for report and recommendation is the Motion to Dismiss filed by the defendant, F.H. Cann & Associates (" Cann"). [rec. doc. 10]. Pro se plaintiff Garren Brailey (" Brailey") filed Opposition, to which Cann filed a Reply. [rec. docs. 17 and 21]. Oral argument of the Motion, was set for November 19, 2014; Brailey did not appear. [rec. docs. 16 and 22]. Accordingly, the Motion was taken under advisement on the record and briefs before the Court. [rec. doc. 22].

For those reasons set out below, it is recommended that the Motion to Dismiss be granted in part and denied in part and, accordingly, all of Brailey's claims except his FDCPA claims under § 1692e(11) and 1692(g), pending the filing of an amended complaint, should be dismissed with prejudice.


Brailey filed the instant lawsuit against Cann on April 4, 2014. [rec. doc. 1]. Thereafter, on July 21, 2914, prior to the time that Cann filed responsive pleadings, Brailey filed an Amended Complaint. [rec. doc. 6]. In his Amended Complaint, plaintiff alleges causes of action under the Fair Credit Reporting Act (" FCRA") 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act (" FDCPA") 15 U.S.C. § 1692 et seq . and the Telephone Consumer Protection Act (" TCPA") 47 U.S.C. § 227 et seq .

In support of his claims, Brailey alleges the following facts. Cann is both a " furnisher of information" as defined by the FCRA and a " debt collector" as defined by the FDCPA. [rec. doc. 6, ¶ 8 and 9]. On July 11, 2011, Cann initiated a credit pull, without a permissible purpose, related to the collection of a debt. [ Id. at ¶ 11 and 13]. Brailey " disputed the impermissible credit pull" by March 21, 2013 letter to the credit reporting agency, Transunion; Transunion received the letter on March 25, 2013 and allegedly forwarded same to Cann. [ Id. at ¶ 12].

At 4:04 p.m. on March 25, 2013, Cann dialed Brailey's cellular telephone, causing the phone to " repeatedly" ring. [ Id. at ¶ 21]. The call, however, went unanswered. [ See Complaint, Ex. B].

On April 5, 2013, Brailey sent Cann a " dispute as well as a request for validation." [ Id. at ¶ 22]. Cann allegedly did not verify or validate the debt. [ Id. at ¶ 23]. Cann allegedly continued to enforce and collect the alleged debt. [ Id. at ¶ 24]. In support of Cann's alleged continuing attempts to collect the debt, Brailey attaches an April 18, 2013 letter received from Cann, apparently in response to his request for validation which reads, in toto, " Enclosed please find a copy of your Application and Promissory Note. Thank you." The bottom of the letter indicates " This communication is from a debt collector." [ See Complaint, Ex. C].

By this Motion to Dismiss, Cann contend that Brailey's claims should be dismissed pursuant to FRCP 12(b)(6) because Brailey has failed to state claims upon which relief may granted. More specifically, Cann contends that it did not violate the FCRA because, as a debt collector, Cann had a permissible purpose to make a credit inquiry, that Brailey's FDCPA claim is time-barred and that it did not violate the FDCPA by placing a single unanswered phone call, and that Brailey has not plead sufficient facts to support a claim under the TCPA because there are no allegations that Cann used an automated telephone dialing system (" ATDS") or prerecorded or artificial voice to call Brailey's cellular telephone.

By Opposition, Brailey alleges facts in support of his FDCPA claim which are not contained in his Complaint or Amended Complaint: that Cann sent him an email on April 12, 2013 in which Cann states that it had a permissible purpose for initiating a credit pull on plaintiff because the credit pull was in furtherance of Cann's efforts to collect a past due balance on a credit transaction; Cann also indicated available repayment options. On June 3, 2013, plaintiff sent Cann a " notice of pending litigation", to which Cann replied by letter dated June 13, 2013, the bottom of which contained a warning that " this is an attempt to collect a debt. Any information obtained will be used for that purpose. This is a communication from a debt collector." In the event that this Court finds plaintiff's Complaint and Amended Complaint are insufficient, Brailey requests leave to file a second amended complaint.

Rule 12(b)(6) Motion to Dismiss Standard

In considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a district court must limit itself to the contents of the pleadings, including attachments thereto. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004); F.R.C.P. 12(b)(6).[1]

Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When deciding a Rule 12(b)(6) motion to dismiss, " [t]he 'court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotations omitted) quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). In other words, a motion to dismiss an action for failure to state a claim " admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Ramming, 281 F.3d at 161-162 quoting Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992).

" 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.'" Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

" A claim for relief is plausible on its face 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Harold H. Huggins Realty, Inc., 634 F.3d at 796 quoting Iqbal, 129 S.Ct. at 1949. This includes the basic requirement that the facts plausibly establish each required element for each legal claim. Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014) citing Iqbal, 556 U.S. at 682-683 and Twombly, 550 U.S. at 557. " However, a complaint is insufficient if it offers only 'labels and conclusions, ' or 'a formulaic recitation of the elements of a cause of action.'" Id. at 763-764 quoting Iqbal, 556 U.S. at 678 quoting Twombly, 550 U.S. at 555.

" Factual allegations must be enough to raise a right to relief above the speculative level. . . ." Twombly, 550 U.S. at 555; Kopp v. Klein, 722 F.3d 327, 333 (5th Cir. 2013). Thus, " the pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Twombley, 127 S.Ct. at 1965 citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004); Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 at fn. 27 (5th Cir. 2009). If a plaintiff fails to allege facts sufficient to " nudge[] [his] claims across the line from conceivable to plausible, [his] complaint must be ...

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