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McGown v. Silverman & Borenstein, PLLC

United States District Court, District of Delaware

February 7, 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 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]


A. Applicability of the FDCPA

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