United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Mason, Schilling
& Mason and Rachel Jill Mason-Mendelsohn's Motion to
Dismiss. [R. 17.] Plaintiff Timothy Fooks alleges the
Defendants violated portions of the Fair Debt Collection
Practices Act in attempting to collect a debt from him. [R.
1.] Mr. Fooks also asserts two state law tort claims arising
out of the same conduct. Id. Defendants have moved
for dismissal of all claims pursuant to Rule 12(b)(6). For
the following reasons, Defendants' Motion is GRANTED IN
matter arises out of a state court debt collection
action. On February 22, 2018, attorney Rachel Jill
Mason-Mendelsohn of the firm Mason, Schilling & Mason
filed suit against Timothy Fooks on behalf of client
Southeastern Emergency Physicians in Nicholas County District
Court. The complaint alleged that Mr. Fooks incurred, and
later defaulted on, charges related to medical services at
SEP. SEP sought a judgment of $546.60. Upon service of the
complaint, Mr. Fooks wrote to Ms. Mason-Mendelsohn asking for
verification of the debt. Shortly thereafter, Mr. Fooks
received a letter from Ms. Mason-Mendelson which stated that
the amount owed was $670.73, and which included account
statements from SEP that Mr. Fooks contends reflect $0.00
owed to SEP. Mr. Fooks filed a general denial in state court
on March 19, 2018. On August 1, 2018, SEP voluntarily
dismissed its action against Mr. Fooks with prejudice.
Mr. Fooks brings this lawsuit against the attorney who
represented SEP in the state court action, Ms. Rachel Jill
Mason-Mendelsohn, and her employer, Mason, Schilling &
Mason. Mr. Fooks alleges that, by filing the debt collection
lawsuit against him, the Defendants have violated certain
portions of the Fair Debt Collection Practices Act and
committed the state law torts of intrusion upon seclusion and
motion to dismiss pursuant to Rule 12(b)(6) tests the
sufficiency of a plaintiff's complaint. In reviewing a
Rule 12(b)(6) motion, the Court “construe[s] the
complaint in the light most favorable to the plaintiff,
accept[s] its allegations as true, and draw[s] all inferences
in favor of the plaintiff.” DirecTV, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation
omitted). The Court, however, “need not accept as true
legal conclusions or unwarranted factual inferences.”
Id. (quoting Gregory v. Shelby County, 220
F.3d 433, 446 (6th Cir. 2000)). The Supreme Court explained
that in order “[t]o 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.'” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). See also Courier
v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629
(6th Cir. 2009).
Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq., was enacted to eliminate “the use of
abusive, deceptive, and unfair debt collection practices by
many debt collectors.” It is “extraordinarily
broad.” Currier v. First Resolution Inv.
Corp., 762 F.3d 529, 533 (6th Cir. 2014) (quoting
Barany-Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir.
2008). Thus, the FDCPA “prohibits a wide array of
specific conduct, ” as well as “in general terms,
any harassing, unfair, or deceptive debt collection
practice.” S. Rep. No. 95-382, at 4.
Fooks' Complaint alleges various violations of the FDCPA
by the Defendants. Specifically, Mr. Fooks seeks relief under
§§ 1692e, 1692d, and 1692f. [R. 1 at 6.] The Sixth
Circuit has adopted the
“least-sophisticated-consumer” test for
identifying conduct that violates the FDCPA. Kistner v.
Law Offices of Michael P. Margelefsky, LLC, 518 F.3d
433, 439 (6th Cir. 2008). This is an objective standard
designed “to ensure that the FDCPA protects all
consumers, the gullible as well as the shrewd.”
Id. (internal citations omitted). If Mr. Fooks'
claims under the FDCPA are to survive Defendants' Motion
to Dismiss, Mr. Fooks must have plead facts that allow this
Court to infer Defendants' conduct could mislead the
least sophisticated consumer.
to § 1692e, “[a] debt collector may not use any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. Whether an action is false, deceptive, or
misleading “is based on whether the ‘least
sophisticated consumer' would be misled[.]”
Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323, 326
(6th Cir. 2012) (citing Harvey v. Great Seneca Fin.
Corp., 453 F.3d 324, 329 (6th Cir. 2006)). A statement
must also be materially false or misleading to violate
Section 1692e. Id. at 327 (“. . . in addition
to being technically false, a statement would tend to mislead
or confuse the ...