United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS
(DKT. NOS. 14, 21)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
August 13, 2015, plaintiff Jennifer Myers filed a civil
complaint alleging that defendants Americollect Inc. and
Aurora Health Care Inc. had violated the Fair Debt Collection
Practices Act (“FDCPA”) and the Wisconsin
Consumer Act (“WCA”). Dkt. No. 1. On October 26,
2015, defendant Aurora Health Care Inc. responded to the
complaint with a motion to dismiss. Dkt. No. 14. On November
5, 2015, defendant Americollect Inc. filed an answer, Dkt.
No. 18, and on November 6, 2015, Americollect joined
Aurora’s motion to dismiss, Dkt. No. 21. The parties
have fully briefed the motions, and the court has heard oral
arguments. For the reasons stated below, the court will deny
the defendants’ motions to dismiss.
February of 2014, the plaintiff’s minor
child-“K.M.”-received health services from
defendant Aurora. Dkt. No. 1-2 at 2. In May of 2014, Aurora
sent a bill, dated May 15, 2014, for those services; the bill
was addressed to the minor child, K.M., and not to the
plaintiff. Id. In early August 2014, Aurora sent a
second bill-this time addressed to the plaintiff, not to the
minor child. Dkt. No. 1-3 at 2. Later in August of 2014,
Americollect sent a letter addressed to the minor child,
dated August 16, 2014, announcing, “Your balance is
past due.” Dkt. No. 1-1.
plaintiff alleges that she “was upset” by the
bill her child received from Aurora and the letter her child
received from Americollect, “and took time off work to
visit an attorney.” Dkt. No. 1 at ¶22. She alleges
that the bill and the letter also “confused and
upset” her minor child, because the child
“worried that she might be responsible for the alleged
debt after she becomes 18 years old.” Id. The
complaint does not indicate the minor child’s age
(although it does state that she remained a minor as of the
date of the filing of the complaint- August 13, 2015), or
describe the type of services received (routine or
August 13, 2015, the plaintiff filed a civil complaint
alleging that the defendants violated the FDCPA and the
Dkt. No. 1. The complaint alleges that defendant Americollect
violated the FDCPA by attempting to collect a debt from a
minor who “is not liable for the alleged debt.”
Id. at ¶46. The plaintiff also asserts that
both defendants violated the WCA by “claim[ing],
attempt[ing], or threaten[ing] to enforce a right to payment
by” the minor child when both defendants “knew,
or had reason to know that no such right existed at the
time” they sent the bills and collection letters.
Id. at ¶53.
October 26, 2015, defendant Aurora filed a Rule 12(b)(6)
motion to dismiss, Dkt. No. 14, and a supporting brief, Dkt.
No. 15. On November 5, 2015, defendant Americollect answered
the complaint. Dkt. No. 18. On November 6, 2015, Americollect
filed a motion to dismiss. Dkt. No. 21. Americollect
“joins” Aurora’s motion and “will
rely” on Aurora’s pleadings to support its
motion. Id. at 1. On November 18, 2015,
the plaintiff filed a brief in opposition to the motions to
dismiss, Dkt. No. 22, and on December 7, 2015, the defendants
replied. Dkt. No. 23. On December 10, 2015, the plaintiff
filed a motion for leave to file a sur-reply or, in the
alternative, a motion to strike new matters allegedly raised
in the defendants’ reply brief. Dkt. No. 25. On
December 14, 2015, the court denied the motion. Text-Only
Order, Dec. 14, 2015. On January 28, 2016, the court held
oral arguments on the motions. Dkt. No. 26.
Standard for Motions to Dismiss
Aurora asks the court to dismiss Count II, the WCA claim, and
Americollect joins the motion. Americollect also asks the
Court to dismiss Count I, the FDCPA claim. To survive a Rule
12(b)(6) motion to dismiss, “a complaint must state a
claim for relief that is plausible on its face.”
Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d
635, 639 (7th Cir. 2015) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility
exists “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The court “draw[s] all reasonable
inferences and facts in favor of the nonmovant, ” but
the court “need not accept as true any legal
assertions.” Id. (citing Vesely v.
Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014)).
state a plausible claim, a plaintiff is not, however,
required to plead specific or detailed facts.”
Modovi Dairy Sys., Inc. Empl. Benefit Plan v. Blue Cross
and Blue Shield of Wisconsin, No. 15-CV-826, 2016 WL
109965 (E.D. Wis. Jan. 8, 2016) (citing Erickson v.
Pardus, 551 U.S. 89, 93 (2007)). “‘[A]
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and
that a recovery is very remote and unlikely.’”
Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th
Cir. 2013) (quoting Twombly, 550 U.S. at 556).
The plaintiff has stated a claim against Americollect
under the FDCPA that is plausible on its face.
of the complaint alleges that in sending the August 2014
collection letter to K.M., Americollect violated the FDCPA.
FDCPA serves “to eliminate abusive debt collection by
debt collectors, ” 15 U.S.C. §1629(e), and
“is intended for the protection of unsophisticated
consumers.” Evory v. RJM Acquisitions Funding
LLC, 505 F.3d 769, 774 (7th Cir. 2007). The Act defines
“debt collector” as “any person who uses
any instrumentality or interstate commerce or the mails in
any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” 15 U.S.C.
§1692(a)(6). “For the FDCPA to apply . . . two
threshold criteria must be met.” Gburek v. Litton
Loan Servcing LP, 614 F.3d 380, 384 (7th Cir. 2010).
First, the defendant must be a “debt collector, ”
and second, the communication at issue “must have been
made in connection with the collection of [a] debt.”
Id. (citing 15 U.S.C. §§1692c(a)-(b),
1692e, and 1692g) (internal quotation marks omitted).
letter from Americollect to K.M. explicitly states,
“This is a communication from a debt collector. This is
an attempt to collect a debt.” Dkt. No. 1-1 at 2. Thus,
for pleading purposes, the plaintiff has ...