In the case of CHARISMA JONES v. AMERICAN COLLECTION SERVICES, INC. and WORKS & LENTZ, INC.,Case No. CIV-24-50-SLP it is decided that a party may move to dismiss a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal is proper when the plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1207 (10th Cir. 2022) (citation omitted). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the [complaint] alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 Case 5:24-cv-00050-SLP Document 20 Filed 09/26/24 Page 2 of 12 3 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In reviewing the sufficiency of the complaint, “[a]ll well-pled factual allegations are accepted as true and viewed in the light most favorable to the nonmoving party.” Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). However, not all factual allegations are entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). A formulaic recitation of the elements of a claim and other conclusory allegations need not be accepted as true Id. at 681 (citing Twombly, 550 U.S. at 554-55).
15 U.S.C. § 1692c Section 1692c prohibits a debt collector from “communicat[ing] with a consumer in connection with the collection of any debt . . . at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer.” 15 U.S.C. § 1692c(a)(1). Plaintiff contends that after she sent correspondence to Defendant advising that the only convenient way to contact her was by email, Defendant then violated the statute by sending correspondence to her house. Defendant seeks dismissal of the claim. Defendant argues that its communication to Plaintiff, sent by regular mail to her home address, is not, as a matter of law, an “inconvenient place.” Mot. at 4. Additionally Defendant argues there are situations in which a debt collector is legally obligated to communicate with a consumer through U.S. Mail or some means other than email and that the Defendant’s communication with Plaintiff involves such a situation.
In response, Plaintiff asserts that if a consumer notifies a debt collector that a place is inconvenient, the debt collector should not direct communications to that place. Plaintiff points to “Regulation F” to argue that the statue contemplates that a consumer has the right to designate a time or place as inconvenient.4 Another judge in this judicial district recently addressed a claim under § 1692c(a)(1) based on nearly identical factual allegations as those at issue here. See Lusk v. Midland Credit Mgmt., Inc., No. CIV-24-381-R, 2024 WL 4171355 (W.D. Okla. Sept. 12, 2024). The court found dismissal proper. The court determined the plaintiff’s claim, in effect, contested the medium of communication, not the location to which the communication was sent. As the Lusk court explained, the plaintiff’s letter advising the defendant to only communicate with her by email implied not only that her home was an inconvenient place, but “that everywhere that is not her email is similarly inconvenient.” The court found that “[t]his preference goes beyond what the statute enables consumers to restrict.” (“Plainly the FDCPA provides protections for when and where consumers may be contacted. There is no such protection for how consumers may be contacted.”). Other courts both in this judicial district and elsewhere are in agreement with this analysis.
IT IS THEREFORE ORDERED as follows: 1) Defendant Works & Lentz, Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint and Brief in Support [Doc. No. 11] is GRANTED and Plaintiff’s action is DISMISSED. A separate judgment of dismissal shall be entered contemporaneously with this Order. 2) Plaintiff’s Motion to Strike Exhibits 1 and 2 to Defendant’s Motion to Dismiss [Doc. No. 12] is DENIED. 3) Defendant Works & Lentz’s Alternative Motion to Supplement its Motion to Dismiss [Doc. No. 16] is GRANTED. IT IS SO ORDERED this 26th day of September, 2024 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA.