United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO
DISMISS [7, 9] AND DISMISSING THE COMPLAINT
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
Shaun Thomas brought suit after Defendants tried to collect a
debt from him and his wife. The complaint alleges one count
of invasion of privacy and counts under two federal laws: the
Fair Debt Collection Practices Act (FDCPA) and the Consumer
Financial Protection Act (CFPA). Two of the Defendants move
to dismiss the complaint; one for failing to state a claim
and the other for failure to properly serve. The Court has
reviewed the filings and finds that a hearing is unnecessary.
For the reasons below, the Court will grant the motions and
dismiss the complaint.
are three interrelated corporations. At the top is Navient
Corporation, a loan management company in the business of
collecting and servicing debt. ECF 1, PgID 2. Navient
Corporation is the sole owner of the other two Defendants:
Navient Solutions, Inc. and Student Assistance Corporation.
For convenience, the Court will refer to the parent company
as "Navient" and the subsidiaries as
"Solutions" and "Student," respectively.
Solutions focuses on servicing student loans, while Student
collects outstanding and delinquent student debt.
Id. at 3-4.
9, 2016, Student called Thomas about a loan he allegedly owed
to Solutions. Thomas, however, told the caller that he did
not have a loan with Solutions and requested proof of the
loan. The Complaint does not say how the call ended, but
Student did call Thomas four more times that month and told
him that "there would be a civil suit filed in relation
to the debt." Id. at 5. At some point, Student
also spoke with Thomas's wife over the phone. In light of
the communications, Thomas filed a complaint with the
Consumer Financial Protection Bureau and to which the Bureau
assigned case No. 160715-002181. Id.
filed suit a year later, on July 7, 2017. The Court issued
summonses for Navient and Student on July 11, but because
Thomas's attorney made a docketing error, the Court did
not issue the summons for Solutions until October 2, 2017. On
October 4, Thomas's attorney sent the summonses and
complaint via U.S. Priority Mail to addresses in East
Lansing, Michigan and Wilkes Barre, Pennsylvania. ECF 12,
PgID 73-74. The Post Office confirmed that it delivered the
mail to both addresses that same day. Id. "J.
Capiece" signed for the Pennsylvania mail, and
"A. Parsons" signed for the Michigan mail.
filed the instant motions later that month. On November 20,
2017, Thomas filed a certificate of service concerning the
mailing of the summonses and complaints, but he failed to
file a response to the motions until January 17, 2018,
several months after the deadline set by Local Rule
Federal Rule of Civil Procedure 12(b), a party may move to
dismiss a complaint for insufficient process (12(b)(4)) or
insufficient service of process (12(b)(5)). The serving party
bears the burden of establishing the validity of service.
Metro. Alloys Corp. v. State Metals Indus., Inc.,
416 F.Supp.2d 561, 563 (E.D. Mich. 2006). When reviewing
12(b)(4) and 12(b)(5) motions, the Court "may refer to
record evidence" and facts in "uncontroverted
contrast, when the Court reviews a motion under Rule
12(b)(6), it generally looks only to the complaint itself.
The Court views the complaint in the light most favorable to
the plaintiff, presumes the truth of all well-pled factual
assertions, and draws every reasonable inference in favor of
the non-moving party. Bassett v. Nat'l
Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th
Cir. 2008). The Court must grant the motion if the complaint
fails to allege facts "sufficient 'to raise a right
to relief above the speculative level,' and to 'state
a claim to relief that is plausible on its face.'"
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609
(6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). If "a cause of action
fails as a matter of law, regardless of whether the
plaintiff's factual allegations are true or not,"
then the Court must dismiss. Winnett v. Caterpillar,
Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
Service of Process
moves to dismiss the complaint on service grounds pursuant to
Rule 12(b)(4) and 12(b)(5). Student asserts that service by
certified mail was improper and thus invalid and further
asserts that the service was untimely. Thomas's response
merely recites the dates and methods of service and concludes
that there "is ...