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Robert Doyle v. Midland Credit Management

May 11, 2012

ROBERT DOYLE, PLAINTIFF,
v.
MIDLAND CREDIT MANAGEMENT, INC., DEFENDANT.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

MEMORANDUM AND ORDER

Robert Doyle brings this action against Midland Credit Management, Inc. ("MCM") under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. Doyle alleges that MCM, a debt collector, violated the FDCPA through a series of approximately 22 to 28 telephone calls to Doyle's cellular telephone in 2011. Doyle seeks statutory damages of $1,000 as well as costs, disbursements and attorney's fees. MCM moves to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. I heard argument on the motions on May 11, 2012. For the reasons discussed below, MCM's motion is granted in part and denied in part.

BACKGROUND

Doyle's complaint alleges the following nonconclusory facts, which I must assume to be true for the purpose of deciding this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

Doyle is a resident of the Eastern District of New York. He is not a "consumer" for purposes of the FDCPA, as he is not "obligated . . . to pay any debt" to MCM. See 15 U.S.C. § 1692a(3). MCM is a "debt collector" within the meaning of FDCPA. See id. § 1692a(6).

In or around the fall of 2011, MCM called Doyle's cellular telephone approximately 22 to 28 times. On each occasion, MCM played a prerecorded message telling Doyle to hold on. For the first approximately five to eight telephone calls, Doyle hung up as soon as he heard the prerecorded message.

For the next approximately five to six telephone calls, Doyle stayed on the line and waited to speak to a person. Each time Doyle waited to speak to a person, the wait time ranged from a few seconds to a few minutes. Whenever Doyle actually spoke to a person, an MCM representative would ask to speak to a person whose name Doyle did not recognize, in connection with an account with an entity with which Doyle had never had an account. Each time Doyle informed the agent that they had dialed the wrong phone number, whereupon the MCM representative disconnected the call.

For the next approximately five to six phone calls, Doyle waited to speak to a representative, and then informed the representative that they had dialed the wrong number and directed MCM not to call his number again.

For the next approximately two to three phone calls, Doyle waited to speak to a representative, and then asked the representative who was calling him. The representatives refused to provide any identifying information and hung up.

On another approximately two to three phone calls, Doyle hung up as soon as he heard MCM's prerecorded message telling him to hold on.

Finally, on September 25, 2011, Doyle received a phone call from MCM and waited on hold for over five minutes before any representative came on the line. Doyle asked the representative to connect him to a supervisor. Doyle told the supervisor that MCM had dialed the wrong telephone number and directed MCM not to call again.

On November 22, 2011, MCM called again. Doyle waited on hold for at least two minutes before a representative came on the line. Doyle again requested to speak with a supervisor. Doyle again told the supervisor that MCM had dialed the wrong number and directed MCM not to call again.

Doyle filed his original complaint on November 14, 2011. After MCM requested a premotion conference in order to move to dismiss the complaint, Doyle sought leave to amend his complaint, which was granted. Doyle filed his amended complaint on March 23, 2012. Doyle alleges violations of 15 U.S.C. § 1692c(b) ("Communication in connection with debt collection -- Communication with third parties") (Count I) and § 1692d ("Harassment or abuse") (Counts II-III).

On April 5, 2012, MCM filed the instant motion. Although it is styled as a motion for judgment on the pleadings, I construe the motion as a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), because ...


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