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
Darcel Keyes filed an initial Complaint on May 10, 2017,
which she amended on July 15, 2017. Dkt. Nos. 1, 17. In her
Complaint, Keyes 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,
No. 17. In her response to Ocwen's Motion to Dismiss,
Keyes requested leave to amend the Complaint to add claims
under the Michigan Collection Practices Act. Dkt. No. 23, p.
29-30 (Pg. ID 240-41).
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
Keyes owes a mortgage-related debt to the Defendant, a
licensed mortgage loan servicer. See Dkt. No. 17, p.
11 (Pg. ID 179); Dkt. No. 17-1, p. 2 (Pg. ID 196). At one
point, Keyes granted Ocwen permission to call her on her cell
phone regarding the collection of this debt. Dkt. No. 12, p.
2, 5 (Pg. ID 111, 114). Ocwen proceeded to call Keyes on her
cell phone “at least 2, 583” times between April
2, 2011 and December 16, 2015. Id. at p. 6 (Pg. ID
115). On some days Ocwen called Keyes twenty-four times, and
as early as 8:01 a.m. and as late as 8:49 p.m. Id.
at p. 7 (Pg. ID 116).
asserts that Ocwen violated the TCPA by calling her 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 114). Keyes believes the
Defendant used such equipment because when Ocwen called her
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 115). On other occasions when
the Defendant called her, a voice-recorded message would
calls frustrated and distressed Keyes, and also drained her
cell phone battery. Id. at p. 9 (Pg. ID 118). She
often refrained from answering her phone, afraid that she was
receiving a call from the Defendant. Id. This
reluctance to answer her phone negatively impacted her
relationships with family members and caused her to miss many
important communications. Id. at p. 8 (Pg. ID 117).
of her frustration with Defendant's phone calls, on calls
with the Defendant both before and after 2011, Keyes
“stat[ed] that [she] no longer wished to be contacted
by telephone.” Id. at p. 7 (Pg. ID 116). The
calls did not stop, however. Id.
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 her 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 her claims are
barred by the statute of limitations, and she has not
properly pled revocation of consent. Dkt. No. 17, p. 10 (Pg.
ID 178). Keyes responds that she has plausibly alleged a
violation of the TCPA because her claims were tolled by
another action and she has adequately alleged the revocation
of consent. Dkt. No. 12, p. 3, 7 (Pg. ID 112, 116). 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 consent.
asserts that Ocwen violated the TCPA by calling her cell
phone repeatedly regarding debt collection between April 2,
2011 and December 16, 2015, and that Ocwen did so through an
automatic dialing system. Id. at p. 5, 7 (Pg. ID
113, 116). The TCPA provides that:
It 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 ...