United States District Court, S.D. Indiana, Indianapolis Division
JODIE PITTMAN, individually and on behalf of all others similarly situated, Plaintiff,
JEFFERSON CAPITAL SYSTEMS, LLC, a Georgia limited liability company, FIRST NATIONAL COLLECTION BUREAU, INC., a Nevada corporation, Defendants.
REPORT AND RECOMMENDATION
J. Dinsmore, United States Magistrate Judge
matter is before the Court on Defendants' Joint Motion to
Dismiss for failure to state a claim upon which relief can be
granted. [Dkt. 16.] For the following reasons, the
Magistrate Judge recommends that the Court
DENY Defendants' Motion.
putative class action seeks damages for Defendants' use
of a form debt collection letter that Plaintiff maintains
violates the Fair Debt Collection Practices Act (FDCPA), 15
U.S.C. §§ 1692e-1692f. [Dkt. 1.] Some seven years
ago, Plaintiff incurred a debt to Keybank. [Dkt. 1 at
3 (¶ 9).] The bank then sold the debt to Defendant
Jefferson Capital Systems (“Jefferson”), which in
turn enlisted Defendant First National Collection Bureau
(FNCB) to collect the debt. [Id.] FNCB attempted to
do so via a form letter (the “Letter”), sent in
June 2016. [Id.] The Letter, which is attached as an
exhibit to the Complaint, provides in relevant part:
The law limits how long you can be sued on a debt. Because of
the age of your debt, out client will not sue you for it. In
circumstances, you can renew the debt and start the time
period for the filing of a lawsuit against you if you take
specific actions such as making certain payment on the debt
or making a written promise to pay. You should determine the
effect of any actions you take with respect to this debt.
In order to aid your financial situation, as may be
necessary, we could set up your account on a monthly payment
We would like to extend the following discounted offer:
An approximately 80 % discount payable in 4 payments . . . .
We are not obligated to renew this offer.
[Dkt. 1-3.] At the time FNCB sent the letter, the
statute of limitations had run, meaning that Defendants could
not sue to collect the debt. [Dkt. 1 at 3-4 (¶
10).] Moreover, the debt could not in the ordinary course be
included on Plaintiff's credit report because of its age.
[Dkt. 1 at 4 (¶ 11).]
brought suit in this Court in November 2016, alleging that
the Letter constitutes a false, misleading, or unfair attempt
to collect a debt in violation of the FDCPA. [Dkt.
claims rest primarily on two theories: that the Letter
falsely implies that paying the debt would somehow aid
Plaintiff's financial situation and that Defendants'
decision not to sue for the time-barred debt is a matter of
choice. [Dkt. 1.] Defendants have jointly moved to
dismiss Plaintiff's Complaint for failure to state a
claim [Dkt. 16], which Motion is fully briefed
[Dkt. 17; Dkt. 24; Dkt. 29;
Dkt. 31-1] and ripe for determination.
motion to dismiss for failure to state a claim upon which
relief can be granted challenges the legal sufficiency of a
plaintiff's complaint. Fed. R. Civ. P. 12(b)(6).Federal Rule of Civil Procedure 8 provides that a
complaint 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). In assessing
the complaint under Rule 12(b)(6), the Court takes all
well-pleaded allegations as true and draws all reasonable
inferences in favor of the non-movant, Hayes, 670
F.3d at 813, “but legal conclusions and conclusory
allegations merely reciting the elements of the claim are not
entitled to this presumption of truth, ” McCauley
v. City of Chicago,671 F.3d 611, 616 (7th Cir. 2011).
After thus “excising” such conclusory
allegations, McCauley, 671 F.3d at 616, the Court
must determine whether the plaintiff's complaint
“state[s] a claim to relief that is plausible on its
face, ” Adams v. City of Indianapolis, 742
F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A complaint meets
this standard where it contains “factual content that
allows the court to draw the ...