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Jones v. Nco Financial Services

United States District Court, D. Massachusetts

November 14, 2014

PAUL JONES, Plaintiff,
v.
NCO FINANCIAL SERVICES, et al., Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

Plaintiff Paul Jones ("Jones") brought this lawsuit alleging illegal debt collection practices against several defendants. D. 18. Defendant Frederick J. Hanna & Associates, P.C. ("Hanna") has moved for judgment on the pleadings as to Count Three, violation of Mass. Gen. L. c. 93A; Count Four, violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"); Count Five, violation of 47 U.S.C. § 227(b)(2)(5); and Count Six, violation of the Massachusetts Debt Collection Regulations, 904 C.M.R. § 7.00. D. 102; see D. 18. For the reasons discussed below, the Court ALLOWS Hanna's motion for judgment on the pleadings, D. 102.

II. Factual Allegations

The facts recited are as alleged in the amended complaint, D. 18, unless otherwise noted.

Hanna is a corporation involved in debt collection. Id . ¶ 11. Hanna had no prior business relationship with Jones or permission to contact him. Id . ¶ 18-19. Jones asserts in his opposition to the instant motion that in March 2011, Hanna began calling Jones, in an effort to reach a different individual who owed it debt. D. 107 ¶ 5. After the first of such calls, Jones made attempts to correct Hanna and cease the calls, for which Jones was charged overage fees by his phone provider. D. 18 ¶ 29-30. The calls continued, however, even after Jones was told that his number had been removed from the call list. Id . ¶ 38. Jones claims that Hanna called his cell phone more than thirty times using an automatic telephone dialing system. Id . ¶ 70.

Jones further alleges that Hanna failed to identify itself when communicating with him via telephone and failed to timely send him written notice of his alleged debt. D. 18 ¶ 110. Jones also asserts that Hanna refused to correct reporting errors on his credit report, subjecting him to a denial of credit. Id . ¶ 96-97.

III. Procedural History

Jones filed his complaint pro se on August 27, 2013. D. 1. He amended the complaint on September 11, 2013, D. 18, which is now the operative complaint in this case. Jones has voluntarily dismissed several Defendants. D. 8, 31, 32, 44, 45, 53, 54, 69. Hanna and NCO Financial Services are the only remaining defendants. Hanna has moved for a judgment on the pleadings as to Counts Three through Six, the only counts in which it is named. D. 102.

IV. Standard of Review

"A motion for judgment on the pleadings is treated much like a Rule 12(b)(6) motion to dismiss." Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007)). "[The] complaint must contain factual allegations that raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true....'" Perez-Acevedo, 520 F.3d at 29 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A]n adequate complaint must provide fair notice to the defendants and state a facially plausible legal claim." Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The Court views the facts in the light most favorable to the Plaintiff. Perez-Acevedo, 520 F.3d at 29 (citation omitted). Further, the Court must "draw all reasonable inferences in Plaintiff's favor as the non moving party." Petricca v. City of Gardener, 194 F.Supp.2d 1, 4 (D. Mass. 2002) (citation omitted). Still, "courts need not credit conclusory statements or merely subjective characterizations, but rather plaintiffs must set forth in their complaint specific, nonconclusory factual allegations regarding each material element to sustain recovery." Class v. Commonwealth of Puerto Rico, 309 F.Supp.2d 235, 237 (D.P.R. 2004) (citing Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)).

In reviewing the motion, the Court may consider the complaint, answer, "documents the authenticity of which are not disputed by the parties;... documents central to plaintiffs' claim; [and] documents sufficiently referred to in the complaint.'" Curran, 509 F.3d at 44 (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)); NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 8 (1st Cir. 2002).

V. Discussion

A. Jones Has Not Sufficiently Pleaded a Violation of the TCPA ...


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