Eilert v. Turner

81 F. Supp. 3d 529, 2015 U.S. Dist. LEXIS 7132, 2015 WL 300506
CourtDistrict Court, S.D. Texas
DecidedJanuary 22, 2015
DocketCivil Action No. H-13-3758
StatusPublished

This text of 81 F. Supp. 3d 529 (Eilert v. Turner) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eilert v. Turner, 81 F. Supp. 3d 529, 2015 U.S. Dist. LEXIS 7132, 2015 WL 300506 (S.D. Tex. 2015).

Opinion

OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, alleging that pros se Defendant Charles I. Turner (“Turner”), a New Jersey attorney practicing primarily in debt collection, violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1602 et seq., in seeking to collect on three consumer debts purportedly owed by Plaintiff Glenn Eilert (“Eilert”), is Ei-lert’s motion for partial judgment on the pleadings (instrument # 25).

After reviewing the record and the applicable law, for the reasons stated below the Court concludes that the motion should be denied and grants leave to Eilert, if he is able, to pursue his claims through a motion for summary judgment.

The Court notes that Turner is proceeding pro se here, but since he is a licensed attorney, the Court finds that he may be held to the standard of an attorney with regard to his-pleadings.

Standard of Review

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), providing that “[ajfter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings,” is “designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir.1990), citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1367, at 509-10 (1990). The same standard used to review motions under Rule 12(b)(6) applies to motions under Rule 12(c). Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.2008).

‘While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). Twombly requires that a complaint “allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261, 263 n. 2 (5th Cir.2009), citing Twombly, 127 S.Ct. at 1974. “ ‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The plausibility standard is not akin to a “probability requirement,” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. Dismissal is appropriate when the plaintiff fails to allege “‘enough facts to state a claim to relief that is plausible on its face’ ” and therefore fails to “‘raise a right to [533]*533relief above the speculative level.’ ” Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955.

On a Rule 12(b)(6) review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motion to dismiss to which the complaint refers and which are central to the plaintiffs claim(s), as well as matters of public record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010), citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.2000); Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n. 6 (5th Cir.1994). See also United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir.2003) (“the court may consider ... matters of which judicial notice may be taken”). Taking judicial notice of public records directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review and does not transform the motion into one for summary judgment. Funk v. Stryker Corp., 631 F.3d 777, 780 (5th Cir.2011). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b).

Factual Allegations of the First Amended Complaint (# 11)

Eilert alleges that on December 27, 2012, Turner sent Eilert a letter in an attempt to collect on a consumer debt that Eilert purportedly owed. Eilert represents that the letter stated, sic,

Please be advised that I have been retained by the above named client in connection with an outstanding bill in the amounts of $825.00. Your account was placed with Accredited Collection Agency, despite numerous attempts, this account is still delinquent, which we trust is merely an oversight on your part.

This letter was the first communication Turner sent to Eilert on a debt allegedly owed to ‘TOUR FAST CASH.” Turner allegedly never provided Eilert with the debt validation information or notice of right to dispute debt as required by 15 U.S.C. 1692g(a).1

On December 31, 2012, Turner sent Ei-lert another letter in an effort to collect on a separate consumer debt that Turner claimed was owed to “MYPAYDAYAD-[534]*534VANCE.” In relevant part that letter stated,

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Cite This Page — Counsel Stack

Bluebook (online)
81 F. Supp. 3d 529, 2015 U.S. Dist. LEXIS 7132, 2015 WL 300506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eilert-v-turner-txsd-2015.