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Merriam v. GC Services

United States District Court, N.D. Indiana, Fort Wayne Division

October 31, 2018




         This matter is before the Court on the Partial Motion to Dismiss filed by Defendant GC Services on September 17, 2018 (ECF 40). Plaintiff Chad Merriam filed a response to the motion on October 11 (ECF 44) and GC Services filed a reply on October 18 (ECF 46). For the reasons discussed below, the motion is GRANTED in part and DENIED in part, and Plaintiff is directed to file an amended complaint within 14 days of the date of this order.


         GC Services brings its motion pursuant to Federal Rule 12(b)(6), which allows a defendant to move to dismiss a complaint that fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). A complaint must set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “‘A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.'” Savoy v. BMW of N. Am., LLC, 313 F.Supp.3d 907, 913 (N.D. Ill. 2018) (quoting Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015)). To survive such a motion, a complaint must “contain 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Tobey v. Chibucos, 890 F.3d 634, 644-46 (7th Cir. 2018).


         Chad Merriam filed this lawsuit in state court on March 7, 2018, and the Defendants removed it to this Court on April 4. Complaint (ECF 2); Notice of Removal (ECF 1). Merriam asserts several claims against GC Services and Allied Interstate for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. and the Federal Trade Commission Act, 15 U.S.C. § 41 et seq. Complaint, generally. Merriam alleges that GC Services and Allied Interstate violated the FDCPA and FTC Act in a host of ways while they were attempting to collect Merriam's student loan debt, including making misrepresentations about the amount he owed, engaging in unlawful (i.e., repeated and harassing) communications with Merriam, and unlawfully communicating Merriam's financial information to third parties. Id., pp. 2-11. He also asserts a state law claim for “tortious interference with his job.” Id., pp. 9-10. It is not necessary to set out the factual details of each of Merriam's claims since he concedes in his response brief that many of them should be dismissed, as discussed below.[1]

         GC Services argues that most of Merriam's claims should be dismissed because they lack any legal foundation or because they seek damages and remedies not provided for in the FDCPA. In support of its motion, GC Services contends as follows:

Merriam's Complaint is subject to several noticeable fatal flaws. Specifically, Merriam seeks recovery and relief via statutory sections that provide no private cause of action; seeks recovery for actions outside of the statute of limitations; seeks the recovery of damages in excess of those which are statutorily provided; and fails to state a plausible claim for tortious interference. Because of these flaws . . . GC Services' 12(b)(6) partial motion to dismiss should be granted.

         Brief in Support of Partial Motion to Dismiss (ECF 41), p. 1. Just as it is not necessary to delve into the factual details of Merriam's individual claims, it is likewise unnecessary to engage in much analysis of each of GC Services' arguments in support of dismissal of those claims, since Merriam concedes most of them. Accordingly, the following summary of GC Services' arguments is sufficient:

1) Merriam's claims under the FTC are improper because “the FTC Act does not create a private right of action.” Brief in Support, p. 4; 2) Merriam's “claims for equitable and injunctive relief pursuant to the FDCPA are improper as the FDCPA does not provide a private right of action for equitable or injunctive relief.” Id., p. 5; 3) Merriam seeks penalties in excess of the amounts expressly permitted under the applicable statutes. Id.; 4) Merriam seeks relief for claims that “are untimely and thus barred by the FDCPA's one year statute of limitations.” Id., p. 7; and 5) Merriam “has failed to plead any of the elements of tortious interference[]” and any such state law claim is “preempted and barred by the [Federal Credit Reporting Act].” Id., pp. 8-10. GC Services insists that “[b]ecause of these shortcomings, this Court must grant Defendant GC Services' Partial Motion to Dismiss[.]” Id., p. 10.

         Merriam's response to GC Services' motion is nothing if not succinct. It is five pages long but the first three of those are a recitation of the law concerning the Rule 12(b)(6) standard of review.[2] On page four of his response brief, Merriam states that he is “[c]utting to the chase[]” and offers the following responses to GC Services' arguments (quoted verbatim):

1. Plaintiff has plead sufficient material facts. For the court to review and make a determination, there is much more than a recital of “buzz” words in his complaint.
2. As to paragraph 10-12, there was a “typo.” Both Allied and GC Services are Defendants. As to Count IV, Count V should be IV. The same applies to Count ix paragraphs 37-46. For the court to allow to clarify and file an amended complaint would serve all parties and the court well.
3. Plaintiff, dismisses with prejudice paragraphs 15, 19, 22, 26, 29, 32 and 36, as to Defendant GC Services, as well as ...

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