United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER
Sean F. Cox United States District Court Judge
Plaintiff filed this action against Defendant after its employees contacted her regarding the collection of a debt. Plaintiff’s complaint asserts three counts. The matter is currently before the Court on Defendant’s Motion to Dismiss. The Court finds that the issues have been adequately presented in the parties’ briefs and that oral argument would not significantly aid the decisional process. See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court therefore orders that the motion will be decided upon the briefs. For the reasons set forth below, the Court shall: 1) dismiss Count II of Plaintiff’s complaint because Plaintiff agrees that one subsection of that count should be dismissed and because Plaintiff has not stated a claim as to the second alleged violation; and 2) dismiss Count III of Plaintiff’s Complaint because the parties now both agree that it should be dismissed. That leaves only Count I, wherein Plaintiff asserts a claim under the Fair Debt Collection Practices Act (“FDCPA”).
With respect to the FDCPA claim, Defendant contends that because it has made an offer of judgment to Plaintiff that would give her all the relief she could potentially obtain on that claim, the Court should enter a judgment consistent with the offer of judgment and end the case. The Court declines to do so because Defendant has not offered Plaintiff all the relief she could potentially recover in this action.
Plaintiff Darlana Otis (“Plaintiff” or “Otis”) filed this action against LTD Financial Services, Limited Partnership (“Defendant” or “LTD”) on October 1, 2014. Plaintiff’s Complaint asserts the following claims: “Count I – Violation Of The Fair Debt Collection Practices Act”; 2) “Count II – Violation Of The Michigan Occupational Code”; and 3) “Count III – Violation Of The Michigan Collection Practices Act.” Plaintiff has demanded a trial by jury and her Complaint seeks the following relief: 1) actual damages; 2) statutory damages; 3) treble damages; and 4) statutory costs and attorney fees. (Compl. at 6).
Plaintiff’s house was foreclosed upon around December 2012; the result of the foreclosure was a deficiency balance. (Compl. at ¶ 9). Plaintiff alleges that LTD began their attempts to collect the debt sometime during 2014. (Compl. at ¶ 10). Around September 4, 2014, a representative of LTD (“Brown”) called Plaintiff at her place of employment. (Compl. at ¶ 11). Plaintiff informed Brown that she could not talk to him at work and asked that he not call her there again. (Compl. at ¶ 11). The following week, Brown called Plaintiff’s work twice, but only spoke to Plaintiff once. (Compl. at ¶¶ 12-3). Around September 8, 2014, Plaintiff again informed Brown that he could not call her at work. (Compl. at ¶ 12). When Brown called the second time that week he was put on hold and Plaintiff alleges that Brown was not on the line when she answered. (Compl. at ¶ 13).
Plaintiff filed the action in federal court based upon federal-question jurisdiction over Count I. She asks the Court to exercise supplemental jurisdiction over her remaining state-law claims.
On October 30, 2014, Defendant’s counsel served Plaintiff with an offer of Judgment pursuant to Fed.R.Civ.P. 68. Rule 68(a) grants a defending party the right to serve on an opposing party an offer to allow judgment against them. The opposing party then has 14 days to respond to the offer.
Defendant’s Offer of Judgment would allow Plaintiff to recover $1, 151.00 for all damages and reasonable attorney fees agreed upon by the parties, and if no agreement can be made, it should be determined by the Court. Plaintiff did not accept the offer within the allotted time under Rule 68(a).
On March 31, 2015, Defendant filed a “Motion To Dismiss Pursuant To Fed.R.Civ.P. 12(b)(1) & 12 (b)(6).” (Docket Entry No. 10).
Fed. R. Civ. P. 12(b)(1) allows a party to assert a defense and motion to dismiss the claim for lack of subject-matter jurisdiction.
To survive a motion to dismiss on a 12(b)(6), a complaint must contain sufficient factual matter, accepted as true to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 570 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.
In its Motion, Defendant seeks relief on several grounds. The Court will address the issues presented in reverse order as they are presented in the motion, however, because the Court needs to determine which claims are viable before addressing whether the Defendant’s Offer of Judgment ...