United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT EDWARD ROSE & SONS, LLC'S MOTION TO
V. PARKER U.S. DISTRICT JUDGE.
lawsuit, alleging violations of the federal Fair Debt
Collection Practices Act (“FDCPA”) and
Michigan's Regulation of Collection Practices Act
(“RCPA”), arises from a letter Plaintiff Parker
Burns received to collect an alleged debt. Plaintiff brings
this lawsuit as a putative class action on behalf of other
consumers who received the same letter. Presently before the
Court is Defendant Edward Rose & Sons, LLC's motion
to dismiss Plaintiff's Amended Complaint, filed pursuant
to Federal Rule of Civil Procedure 12(b)(6) on May 12, 2016.
(ECF No. 18.) The motion has been fully briefed. Finding the
facts and legal arguments sufficiently presented in the
parties' briefs, the Court finds oral argument
unnecessary and is dispensing with oral argument pursuant to
Eastern District of Michigan Local Rule 7.1(f).
Rule 12(b)(6) Standard
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss, a complaint
need not contain “detailed factual allegations, ”
but it must contain more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action . . ..” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.' ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
Supreme Court provided in Iqbal and
Twombly, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Id. (quoting
Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability
requirement at the pleading stage; it simply calls for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of illegal [conduct].”
Twombly, 550 U.S. at 556.
deciding whether the plaintiff has set forth a
“plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). This presumption,
however, is not applicable to legal conclusions.
Iqbal, 556 U.S. at 668. Therefore,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555).
Factual and Procedural Background
to Plaintiff's Amended Complaint, Defendant Ross, Stuart
& Dawson, Inc. (“RSD”) is a debt collector,
which offers its name and letterhead to creditors for
“pre-collect” collection of debts. (Am. Compl.
¶ 9, ECF No. 13.) Defendant Edward Rose & Sons, LLC
(“Rose”) is a real estate development and
management company, which collects payments from tenants on
behalf of its various properties in Michigan. (Id.
¶ 10.) One of these properties is “The
about March 2, 2016, Plaintiff received a letter for a debt
owed to “The Village.” (Id. ¶ 31,
Ex. 1, ECF Nos. 13, 13-1.) RSD's name is printed in large
letters in the top, right-hand corner of the letter, under
which appears: “Excellence in Global
Collections”. (Id.) In the top, left-hand
corner of the letter, in a smaller font, is “The
Village”, followed by an address in Bloomfield Hills,
Michigan, which Plaintiff alleges belongs to Rose. (Am.
Compl. ¶ 33(g), Exs. 1, 3, ECF Nos. 13, 13-1, 13-3.)
letter begins by informing Plaintiff: “The Village has
instructed us to proceed with the collection of your
account.” (Am. Compl., Ex. 1, ECF No. 13-1.) The letter
then warns Plaintiff: “To avoid further collection
action, we urge you to take care of this matter.”
(Id.) Under the heading “IMPORTANT CONSUMER
NOTICE” is information advising Plaintiff to
“notify this office within 30 days” to
dispute the validity of the debt or request validation of the
debt or the name and address of the original creditor.
(Id., emphasis added). Below the notice is RSD's
name in bold. (Id.) The letter contains neither an
address nor phone number for RSD, however. (Id.)
is directed in the letter to contact “the
creditor” to ask any questions or pay the debt by
credit card, followed by a phone number which Plaintiff
alleges is Rose's number. (Id.; see
also Am. Compl. ¶ 33(b), Ex. 2, ECF No. 13-2.) The
bottom of the letter bears the name of “The
Village”, followed by Rose's address. (Am. Compl.,
website, RSD advertises “pre-collect” services
for its clients. (Am. Compl. ¶ 35, Ex. 4, ECF Nos. 13,
13-4.) According to the website, the goal of RSD's
pre-collect program “is to create an opportunity to
communicate with the debtor and re-direct them back to your
company so that the situation can be resolved
internally.” (Id., emphasis removed.) The
website states that payments are made directly to the client.
(Id.) RSD's website also advertises
“Letter Writing Services.” (Id.)
2007, RSD and Rose entered an agreement titled, “Edward
Rose & Sons Demand Letter ‘Duns'
Agreement” (“Defendants' Agreement”).
(Am. Compl. ¶ 36, Ex. 5, ECF No. 13, 13-5.) Plaintiff
states in his Amended Complaint that a “Duns
Letter” or “Dunning Letter” is a notice to
a customer that payment of an account receivable is overdue.
(Id. ¶ 37.) According to Defendants'
Agreement, RSD agreed to provide Rose demand letter services.
(Id. ¶ 38, Ex. 5.) The letter states the
“terms and conditions” of those services, which
(1) “RSD will mail a series of three letters per debtor
(2) each letter will contain a remittance slip and return
address bearing the address provided by Rose and stated in
(3) a telephone number specified by Rose, and stated in the
agreement, will be inserted into each letter;
(4) “RSD will send all three letters to the debtor(s)
until the client cancels any remaining letters”; and,
(5) RSD will include National Change of Address and Address
Change Service on the first and second letters and forward