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Jones v. Experian Information Solutions, Inc.

United States District Court, D. Massachusetts

July 19, 2016

PAUL JONES, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          George A. O'Toole. Jr. United States District Judge.

         In 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-----"[1] (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)" (citations omitted)).

         Nevertheless, I have reviewed the relevant pleadings and submissions, and I agree with the magistrate judge's legal conclusions.

         Accordingly, 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).

         It is SO ORDERED.

         REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (#198)

          M. Page Kelley United States Magistrate Judge.

         I. INTRODUCTION

         Pro se 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[1] ("Revenue Assistance"), is the sole defendant remaining in the case.

         Now 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 part.

         II. FACTS

         The 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.[2] 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.

         According 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 numbers."[3]

         III. STANDARD OF REVIEW

         Rule 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).

         To 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).

         Subject 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).

         IV. DISCUSSION

         A. Count I- Violation of the FDCPA.

         In 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, [4] (2) 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 ...


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