United States District Court, S.D. Indiana, Terre Haute Division
JANE MAGNUS-STINSON, CHIEF JUDGE
matter is before the Court on Defendant Durham & Durham,
LLP's (“Durham”) Motion to Dismiss,
[Filing No. 11], and Motion for Rule 11 Sanctions, [Filing
No. 12]. Plaintiff Anthony Okulovich alleges that Durham sent
him a deficient and misleading debt collection letter in
violation of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et
seq. For the following reasons, the Court
DENIES Durham's Motions.
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim that does not state a right to relief. The
Federal Rules of Civil Procedure require that a complaint
provide the defendant with “fair notice of what the . .
. claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
In reviewing the sufficiency of a complaint, the Court must
accept all well-pled facts as true and draw all permissible
inferences in favor of the plaintiff. See Active
Disposal Inc. v. City of Darien, 635 F.3d 883, 886 (7th
Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether
the complaint “contain[s] 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) (quoting
Twombly, 550 U.S. at 570). The Court may not accept
legal conclusions or conclusory allegations as sufficient to
state a claim for relief. See McCauley v. City
of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief
“to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633
(7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
following facts are drawn from Mr. Okulovich's Complaint,
[Filing No. 1], and attached exhibit, [Filing No. 1-1], which
are treated as true for the purpose of resolving Durham's
Motion. E.g., Geinosky v. City of Chi., 675
F.3d 743, 745 n.1 (7th Cir. 2012) (noting that courts must
consider “documents attached to the complaint”
under Rule 12(b)(6)).
his long-term medical issues, Mr. Okulovich has incurred
several debts for medical care. [Filing No. 1 at 2.] One such
debt was placed with Durham for collection. [Filing No. 1-1
at 2.] At some point after Durham initially contacted Mr.
Okulovich about the outstanding debt, it sent Mr. Okulovich a
letter, dated April 25, 2016 (“Letter”).
[Filing No. 1 at 2; Filing No. 1-1 at 2.] The Letter was
printed on “Durham & Durham Attorneys at Law”
letterhead and provided as follows:
NOTICE - SETTLEMENT OFFER
As addressed in our previous correspondence, medical services
have been provided to you as noted above. To date, full
payment has not been received for these services. This
outstanding balance is your responsibility.
In order to close your file and remove your account from our
systems, our firm is authorized to offer you a 30% discount
on your outstanding balance. This settlement offer will allow
you to clear this outstanding debt and enjoy a significant
Return this form with the above referenced payoff amount or
pay online . . . . Make your check or money order payable to
Durham & Durham and upon receipt of your payment the
account will be closed. The opportunity to take advantage of
this settlement offer will expire thirty days from the date
of this letter.
At this time, no attorney with this firm has personally
reviewed the particular circumstances of your account. This
is an attempt to collect a debt. Any information obtained
will be used for that purpose. If ...