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McGown v. Silverman & Borenstein, PLLC

United States District Court, District of Delaware

February 7, 2014

HOLLY McGOWN, Plaintiff,
v.
SILVERMAN & BORENSTEIN, PLLC, and ADP, INC., Defendants.

REPORT AND RECOMMENDATION

MARY PAT THYNGE UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

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 the complaint on May 20, 2013 to correct ADP's name.[2] McGown again amended her 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 filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).[4] This Report and Recommendation only addresses ADP'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 social security number that 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] On March 11, 2013, prior to the deduction, McGown notified ADP of the incorrect information contained in the writ.[12] However, the garnishment was still processed and the money was not returned to McGown by Wal-Mart until March 28, 2013.[13]

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."[14] As such, a plaintiff must plead sufficient facts to render the claim facially plausible.[15] 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).[16] "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.'"[17] 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."[18]

"[C]ourts 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.[19] In the event that matters outside of the pleadings are considered, the court is required to consider the motion as a Rule 56 motion for summary judgment.[20] However, a court may consider "'matters incorporated by reference or 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.[21] 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.[22]

D. Positions of the Parties

McGown alleges ADP violated the FDCPA under 15 U.S.C. § 1692f, [23] and New Jersey common law via conversion.[24] Specifically, she contends by processing a garnishment of her wages, ADP's conduct constitutes "unfair or unconscionable means to collect or attempt to collect any debt, " not expressly authorized by agreement or law, and thereby violates of both §§ 1692f and 1692f(1).[25] The premise of her argument is that her wages were garnished to collect another person's debt—Flores' debt.[26]

In its motion to dismiss, ADP contends: (1) McGown has not sufficiently alleged ADP is a "debt collector" and whether Flores' "debt" is covered by the FDCPA;[27] (2) her claims for conversion under Delaware or New Jersey state law fail as a matter of law;[28]and (3) she failed to assert recoverable damages from ADP.[29]

II. ANALYSIS

A. Applicability of the FDCPA


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