United States District Court, E.D. Michigan, Southern Division
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS , GRANTING
PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT ,
AND DENYING DEFENDANT'S MOTION TO STAY .
GERSHWIN A. DRAIN United States District Judge.
Eric Knight filed an initial Complaint on May 10, 2017,
which he amended on July 15, 2017. Dkt. Nos. 1, 16. In his
Complaint, Knight asserts claims against the Defendant, Ocwen
Loan Servicing, LLC, under the Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227; the common
law negligence doctrine of Michigan law; and the Michigan
Occupational Code, Michigan Compiled Laws § 339.900. The
Defendant filed a Motion to Dismiss the Complaint on July 31,
2017. Dkt. No. 16. In his response to Ocwen's Motion to
Dismiss, Knight requested leave to amend the Complaint to add
claims under the Michigan Collection Practices Act. Dkt. No.
22, p. 29-30 (Pg. ID 215-16).
30, 2017, Ocwen filed a Motion to Stay the Complaint pending
a ruling in ACA Int'l v. Fed. Commc'ns
Comm'n, No. 15-1211 (D.C. Cir.). Dkt. No. 9.
before the Court is the Defendant's Motion to Dismiss
, the Plaintiff's Request for Leave to Amend the
Complaint , and the Defendant's Motion to Stay the
Complaint . For the reasons that follow, the Court will
DENY IN PART and GRANT IN PART Defendant's Motion to
Dismiss , GRANT Plaintiff's Request for Leave to
Amend the Complaint , and DENY Defendant's Motion to
Knight owes a mortgage-related debt to the Defendant, a
licensed mortgage loan servicer. See Dkt. No. 12, p.
2 (Pg. ID 88); Dkt. No. 16, p. 11 (Pg. ID 154); Dkt. No.
16-1, p. 2 (Pg. ID 170). At one point prior to 2013, Knight
granted Ocwen permission to call him on his cell phone
regarding the collection of this debt. Dkt. No. 12, p. 5 (Pg.
ID 91). Ocwen proceeded to call Knight on his cell phone
“at least 1, 255” times between November 13, 2011
and December 16, 2015. Id. at p. 5- 6 (Pg. ID
asserts that Ocwen violated the TCPA by calling his cell
phone with equipment that could store or produce numbers to
be called, using a random or sequential number generator.
Id. at p. 5 (Pg. ID 91). Knight believes the
Defendant used such equipment because when Ocwen called him
there would frequently be silence, followed by a click or
beep-tone, and then the voice of a live Ocwen representative.
Id. at p. 6 (Pg. ID 92). On occasions when the
Defendant called him, a voice-recorded message would play.
calls frustrated and distressed Knight, and also drained his
cell phone battery. Id. at p. 7-8 (Pg. ID 93-94).
Knight often refrained from answering his phone, afraid that
he was receiving a call from the Defendant. Id. His
reluctance to answer the phone negatively impacted his
relationships with family members and caused him to miss many
important communications. Id.
of his frustration with Defendant's phone calls, on calls
with the Defendant as late as 2013, Knight “stat[ed]
that [he] no longer wished to be contacted by
telephone.” Id. at p. 6 (Pg. ID 92). The calls
did not stop, however. Id. at p. 7 (Pg. ID 93).
Rule of Civil Procedure 12(b)(6) allows a court to make an
assessment as to whether a plaintiff has stated a claim upon
which relief may be granted. See Fed. R. Civ. P.
12(b)(6). “Federal Rule of Civil Procedure 8(a)(2)
requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief, ' in
order to ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.'”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “[E]ven though the complaint need not contain
‘detailed' factual allegations, its ‘factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the
allegations in the complaint are true.'”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting
Twombly, 550 U.S. at 555).
must construe the complaint in favor of the plaintiff, accept
the allegations of the complaint as true, and determine
whether plaintiff's factual allegations present plausible
claims. Twombly, 550 U.S. at 570. To survive a Rule
12(b)(6) motion to dismiss, a plaintiff's pleading for
relief must provide “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do.” Ass'n of Cleveland Fire
Fighters, 502 F.3d at 548 (quoting Twombly, 550
U.S. at 553-54). “[T]he tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 668 (2009). “Nor does a
complaint suffice if it tenders naked assertion[s] devoid of
further factual enhancement.” Id. (internal
citations and quotations omitted). Instead, “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Id. (internal citations and quotations
omitted). The plausibility standard requires “more than
a sheer possibility that a defendant has acted
unlawfully.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not show[n]-that the pleader is entitled
to relief.” Id. (internal citations and
alleges claims based on violations of the TCPA, violations of
negligence under Michigan law, and violations of the Michigan
Occupational Code. Defendant asserts that the Plaintiff has
failed to adequately allege each of these claims. The Court
finds that some of Plaintiff's claims based on violations
of the TCPA are barred by the statute of limitations,
although others survive the motion to dismiss. The Court also
concludes that the Plaintiff has failed to adequately allege
claims based on negligence and the Michigan Occupational
requests leave to amend his claims related to the Michigan
Occupational Code by adding claims regarding the Michigan
Collection Practices Act. The Court will grant Plaintiff
leave to amend.
the Defendant requests that the Court stay this matter
pending a ruling in ACA Int'l v. Fed. Commc'ns
Comm'n, No. 15-1211 (D.C. Cir.). The Court will deny
Count I: Relief under the TCPA, 47 U.S.C. § 227 The
Defendant argues that the Plaintiff fails to adequately
allege a violation of the TCPA because many of his claims are
barred by the statute of limitations, and he has not properly
pled revocation of consent. Dkt. No. 16, p. 11-12 (Pg. ID
154- 55). Knight responds that he has plausibly alleged a
violation of the TCPA because his claims were tolled by
another action and he has adequately alleged the revocation
of consent. Dkt. No. 12, p. 3 (Pg. ID 89). The Court finds
that Plaintiff's TCPA claims arising before May 10, 2013
are barred by the statute of limitations. For any TCPA claims
not barred by the statute of limitations, the Court concludes
that the Plaintiff has adequately alleged revocation of
asserts that Ocwen violated the TCPA by calling his cell
phone repeatedly regarding debt collection between November
13, 2011 and December 16, 2015, and that Ocwen did so through
an automatic dialing system. Dkt. No. 12, p. 5 (Pg. ID 91).
The TCPA provides that:
shall be unlawful for any person within the United States, or
any person outside the United States if the recipient is
within the United States-
(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice- . . .
(iii) to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service,
or other radio common carrier service, or any service for
which the called party is charged for the call, unless such
call is made solely to collect a debt owed to or guaranteed
by the United States;
(B) to initiate any telephone call to any residential
telephone line using an artificial or prerecorded voice to
deliver a message without the prior express consent of the
called party, unless the call is initiated for emergency
purposes, is made solely pursuant to the collection of a debt
owed to or guaranteed by the United ...