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McGown v. Silverman & Borenstein, PLLC

United States District Court, Third Circuit

February 3, 2014

HOLLY McGOWN, Plaintiff




A. Procedural Background

On April 29, 2013, Plaintiff Holly McGown (“McGown”) filed suit against Silverman & Borenstein, PLLC, (“S&B”) and ADP, Inc. (“ADP”) alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and both Delaware and Colorado common law.[1] McGown amended her complaint on May 20, 2013 to correct ADP’s name.[2]McGown again amended the complaint on July 23, 2013 to add New Jersey common law claims against ADP, while withdrawing her Delaware common law claims.[3] Both S&B and ADP have filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).[4] This Report and Recommendation only addresses S&B’s motion to dismiss.

B. Factual Background

McGown is a Delaware resident.[5] S&B is a professional limited liability company with its principal office in Colorado.[6] ADP is a payroll processor with its principal office in New Jersey.[7] S&B performed collection work for Capital One Bank (USA) N.A. (“Capital One”) and obtained a judgment for Capital One against Oscar P. Flores (“Flores”) on May 17, 2007.[8] S&B subsequently obtained a writ of garnishment against Flores which listed Flores by name as well as a social security number which turned out to be McGown’s social security number.[9] The writ was then served upon Wal-mart who forwarded the writ to its payroll processor, ADP.[10] ADP matched the social security number on the writ to McGown’s social security number and processed the garnishment, resulting in a $232.84 deduction from McGown’s paycheck.[11]

C. Legal Standard - Motion to Dismiss Under Rule 12(b)(6)

In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must also consider Rule 8(a)(2). Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”[12] As such, a plaintiff must plead sufficient facts to render the claim facially plausible.[13] The court is required to consider all material allegations of the complaint as true when evaluating a motion to dismiss under Rule 12(b)(6).[14] “The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.”[15] A motion to dismiss may be granted only if, after, “accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief.”[16]

“Courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” when reviewing a motion to dismiss.[17] In the event matters outside of the pleadings are considered, the court is required to consider the motion as a Rule 56 motion for summary judgment.[18]However, a court may consider “matters incorporated by reference integral to the claim, items subject to judicial notice, matters of public record, and orders and items appearing in the record of the case” without converting the motion to dismiss to a motion for summary judgment.[19] A plaintiff is entitled to notice and a fair opportunity to respond to evidence considered by the court, but where such notice was available, it is proper for the court to consider that evidence.[20]

D. Positions of the Parties

McGown alleges S&B violated the FDCPA under both §§ 1692e and 1692f.[21]McGown also alleges S&B violated Colorado common law via abuse of process and conversion.[22] Specifically, McGown contends S&B’s garnishment of her wages to satisfy the debt of another constitutes “false, deceptive, misleading representations or means in connection with the collection of any debt, ”[23] and likewise constitutes “unfair or unconscionable means to collect or attempt to collect any debt.”[24] McGown claims she does not know Flores and has no connection to any individual matching his name.[25]

In its motion to dismiss, S&B contends: (1) McGown has not sufficiently alleged Flores’ “debt” is covered by the FDCPA or that S&B is a “debt collector” for purposes of the FDCPA;[26] (2) McGown lacks standing under the FDCPA;[27] (3) McGown’s FDCPA claims fail as a matter of law;[28] and (4) the court should decline to exercise supplemental jurisdiction over McGown’s state law claims.[29]



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