United States District Court, D. Massachusetts
ORDER ADOPTING REPORT AND RECOMMENDATION
A. O'Toole. Jr. United States District Judge.
April 2016, the magistrate judge to whom this matter was
referred filed a report and recommendation with respect to a
motion for judgment on the pleadings filed by the last
remaining defendant in the case, Revenue Assistance
Corporation. The plaintiff, Paul Jones, timely objected to
the report and recommendation. However, he makes merely a
broad and general contention, stating that he "objects
to the Magistrate Recommendation ... in its entirety except
for dismissal of COUNT IV-----" (Pl.'s Opp'n to the
Magistrate's Recommendation on Def.'s Mot. for J. on
the Pleadings 1 (dkt. no. 229).) Such an objection does not
comply with Rule 72(b) of the Federal Rules of Civil
Procedure, which requires a party to raise "specific
written objections to the proposed findings and
recommendations." See Fed.R.Civ.P. 72(b); see also
Velez-Padro v. Thermo King de P.R.. Inc., 465
F.3d 31, 32 (1st Cir. 2006) (noting that "[c]onclusory
objections that do not direct the reviewing court to the
issues in controversy do not comply with Rule 72(b)"
I have reviewed the relevant pleadings and submissions, and I
agree with the magistrate judge's legal conclusions.
I OVERRULE the plaintiffs objection and ADOPT the
recommendation of the magistrate judge. The defendant's
motion for judgment on the pleadings is GRANTED in part and
DENIED in part. The case shall proceed only as to Count II
alleging a violation of 47 U.S.C. § 227(b)(l)(A)(iii).
AND RECOMMENDATION ON DEFENDANT'S MOTION FOR JUDGMENT ON
THE PLEADINGS (#198)
Page Kelley United States Magistrate Judge.
plaintiff Paul Jones filed his original complaint against
several defendants on January 25, 2014, alleging a variety of
illegal debt collection practices. (#1.) Jones was granted
leave to amend his complaint; his first amended complaint was
filed on April 28, 2014. (#78-1.) In the time since, his
motions for leave further to amend his complaint were denied.
(## 130, 190.) At this point the moving defendant, Revenue
Assistance Corporation d/b/a SalesLoft ("Revenue
Assistance"), is the sole defendant remaining in the
before the Court is Revenue Assistance's motion for
judgment on the pleadings as to Count I, violation of the
Fair Debt Collection Practices Act ("FDCPA");
Counts II and III, violations of the Telephone Consumer
Protection Act ("TCPA"); and Count IV, violation of
the Massachusetts Fair Debt Collection Practices Act
("MFDCPA"). For the reasons discussed below, the
Court recommends that Revenue Assistance's motion for
judgment on the pleadings be allowed in part and denied in
following facts are as alleged in the amended complaint.
Revenue Assistance is a third party debt collector. (#78-1
¶ 5.) Jones never gave any of the original defendants
permission to telephone his wireless telephone numbers.
Id. ¶ 66. Jones asserts that a group of the
original defendants called him a number of times to collect a
debt either from him or from an unknown party. Id.
¶¶ 41, 42, 70. He alleges that Revenue Assistance
called his wireless telephone numbers on at least two
occasions in an effort to collect either a non-existent debt
from him or a debt incurred by an unknown third party.
Id. ¶¶ 59-60. Jones further alleges that
some of the calls he received from defendants, as a group,
were characterized by either a ten second pause or a two to
three second pause before any communication from the caller.
Id. ¶¶ 54, 61. Plaintiff claims that he
informed defendants that he was being charged for the calls,
and that he only had 5000 minutes per month of usage for the
telephone numbers in question. Id. ¶ 64.
to Jones, some of the original defendants, including Revenue
Assistance, failed to disclose the identity of the company
from which the employee was calling. Id. ¶ 65.
Plaintiff also claims that these defendants failed to send
him written notice of his alleged indebtedness within five
days of their initial communication with him. Id.
¶ 67. At all relevant times, Jones refers to the
telephone lines in question as his "wireless phone
STANDARD OF REVIEW
12(c) of the Federal Rules of Civil Procedure provides that a
party may move for judgment on the pleadings after the
pleadings have closed. Fed.R.Civ.P. 12. "A motion for
judgment on the pleadings is treated much like a Rule
12(b)(6) motion to dismiss." Perez-Acevedo v.
Rivero-Cubano, 520F.3d26, 29(1stCir.2008)(citing
Curran v. Cousins, 509F.3d36, 43-44(1st Cir.2007)).
Motions for dismissal and judgment on the pleadings are
governed by the same standard. 4MVR, LLC v. Hill,
No. 12-cv-10674, 2015 WL 3884054, at *6 (D. Mass. June 24,
2015). "A Rule 12(c) motion nonetheless differs from a
Rule 12(b)(6) motion because it implicates the pleadings as a
whole." Santiago v. Bloise, 741
F.Supp.2d 357, 360 (D. Mass. 2010) (citation and internal
quotation mark omitted). Facts in the answer, however,
"are taken as true only where and to the extent that
they have not been denied or do not conflict with those of
the complaint." Id. (citation omitted).
survive a Rule 12(c) motion, "a 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, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). The Court must consider the
well-pleaded facts "in the light most favorable to the
non-moving party" and "draw[ ] all reasonable
inferences in its favor." Gray v. Evercore
Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008)
(citing Curran, 509 F.3d at 43).
to certain narrow exceptions and absent a conversion of the
Rule 12(c) motion to a summary judgment motion under the
procedure set forth in Rule 12(d), the court's review is
confined to the complaint and the answer. Exceptions exist
that allow consideration of "facts susceptible to
judicial notice." R.G. Financial Corp. v.
Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006)
(discussing Rule 12(c) motion). In evaluating a Rule 12(c)
motion, a court may also "consider documents the
authenticity of which are not disputed by the parties"
as well as "documents central to the plaintiffs
claim" and "documents sufficiently referred to in
the complaint." Curran, 509 F.3d at 44; see
also Trans-Spec Truck Service, Inc. v. Caterpillar
Inc., 524 F.3d 315, 321-322 (1st Cir. 2008);
Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993). When the documents submitted are part of the public
record, the court may consider them without converting the
motion to dismiss into a motion for summary judgment. See
In re Stone & Webster, 253 F.Supp.2d 102, 128 &
n.11 (D. Mass. 2003).
Count I- Violation of the FDCPA.
Count I Plaintiff asserts violation of §§
1692c(a)(l), 1692d, 1692e(2), 1692e(5), 1692e(10-l 1),
1692f(l) and 1692g and 1692g(b) of the FDCPA. Congress
created the FDCPA to "protect consumers from a host of
unfair, harassing, and deceptive collection practices without
imposing unnecessary restrictions on ethical debt
collectors." McDermott v. Marcus, Errico, Emmer
& Brooks, P.C.,911 F.Supp.2d 1, 53 (D. Mass. 2012)
(internal quotation marks and citations omitted). A plaintiff
must adequately allege three elements in order to state a
valid claim under the FDCPA: "(1) that she was the
object of collection activity arising from consumer debt,
defendants are debt collectors as defined by the FDCPA, and
(3) defendants engaged in an act or omission prohibited by
the FDCPA." Rhodes v.Ocwen Loan Servicing,
LLC,44 F.Supp.3d 137, 141 (D. Mass. 2014) (internal
quotation marks and citation omitted). As to the second
element, it is undisputed that ...