The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff has brought this action for the alleged violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a, et seq. ("FDCPA"). The debt collection defendants, Accelerated Receivables, David Roach, Joyce Doe, and Diana Doe (hereafter "defendants"), have filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, and/or for summary judgment pursuant to Rule 56(b) as matters outside the pleadings are presented to the court. In the alternative, these defendants ask that the court limit plaintiff's damages to $1,000.00 and strike his claims for attorney's fees and punitive damages.
In his pro se complaint, plaintiff alleges that on November 26, 2007 at 4:26 p.m., he received a voicemail message from a woman who identified herself merely as "Joyce" and asked that he return the call (Item 1)*fn1 . Plaintiff telephoned Joyce, and she asked for plaintiff's telephone number or account number. Plaintiff provided his telephone number, and Joyce informed him that he owed money on an account with defendant PSI. Plaintiff asked for more information, and Joyce stated that two letters had previously been sent to him, on September 26, 2007 and October 29, 2007.
Plaintiff further alleges that he was put on hold and then spoke to a woman named "Diana," who stated that she worked in the legal department. Plaintiff told Diana that he never received a letter, although Diana confirmed his mailing address. Diana also advised plaintiff to contact PSI and that no further action would be taken on the account for 48 hours. Plaintiff alleges that he advised Diana that he was speaking to her on a cellular telephone and that he was incurring charges to do so. Plaintiff also alleges that Diana "stated that she was a debt collector and she ended the call." Id.
Plaintiff denies that he received any written notice from defendants prior to the telephone conversation of November 26, 2007. He also alleges that defendants did not advise him of his rights under the FDCPA.
In Count 1 of the complaint, plaintiff alleges that defendants' initial communication, the first voicemail message, did not contain any disclosures as required by the FDCPA and was in violation of his rights under the statute.
In Count 2, plaintiff alleges that a second voicemail also lacked disclosures as required by the FDCPA and was in violation of his rights under the statute.
In Count 3, plaintiff alleges that the defendants, in the initial voicemail, used deceptive means to contact the plaintiff in violation of the FDCPA by failing to state the purpose of the call in the message.
In Count 4, plaintiff alleges that defendants made a false and misleading representation in that "Diana," by stating that she worked in the legal department, gave the false impression that she was an attorney.
In Count 5, plaintiff alleges that the defendants failed to advise him of his rights under the FDCPA in that he was not informed that the call was "an attempt to collect a debt and any information will be used for that purpose." Id.
In Count 6, plaintiff alleges that it was an unfair practice under the FDCPA to contact him on his cellular telephone as he incurred charges in returning the call.
In Count 7, plaintiff alleges that the initial voicemail message contained no disclosures as required by the FDCPA and that defendants failed to provide any required consumer warnings within five days of the initial contact.
Finally, in Count 8, plaintiff alleges that defendants failed to provide verification of the alleged debt as requested in writing by plaintiff. For each of these eight alleged violations of the FDCPA, plaintiff seeks statutory damages of $1,000.00. He also seeks attorney's fees and punitive damages.
Plaintiff has attached to the complaint a transcript of the voicemail message left on plaintiff's telephone at 4:24 p.m. on November 26, 2007. ...