Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. Miramed Revenue Group, LLC

United States District Court, E.D. Michigan, Southern Division

May 14, 2019

TIMOTHY JONES, Plaintiff,
v.
MIRAMED REVENUE GROUP, LLC, Defendant.

          Honorable Paul D. Borman Judge

          REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [20]

          DAVID R. GRAND UNITED STATES MAGISTRATE JUDGE

         Before the Court[1] is Defendant Miramed Revenue Group, LLC's (“Miramed”) Motion to Dismiss, filed December 28, 2018. (Doc. #20). Plaintiff Timothy Jones (“Jones”), a licensed Michigan attorney representing himself (Doc. #8), filed a response to Miramed's motion on January 20, 2019, and Miramed filed a reply on February 1, 2019. (Docs. #22, #23). A hearing was held on March 5, 2019. (Doc. #26).

         I. RECOMMENDATION

         For the reasons set forth below, IT IS RECOMMENDED that Defendant's Motion to Dismiss (Doc. #20) be GRANTED AS TO JONES'S FEDERAL CLAIMS, and that JONES'S REMAINING STATE LAW CLAIMS be DISMISSED WITHOUT PREJUDICE.

         II. REPORT

         A. Background

         This action centers around two telephone calls Jones received from Miramed, a debt collector. Jones alleges that during the first call on April 19, 2018, he picked up the call, and then the caller asked for Jones' mother by her full name. Jones asked if he could take a message, and in response, the “caller proceeded to provide a telephone number and a long case or file number for Plaintiff to record. [Jones] believes that the caller stated that ‘a letter had been sent on the 14th.'” (Doc. #19 at 3). Jones contends that Miramed sought to speak with his mother regarding a debt she allegedly owed. Jones alleges that he received a second phone call from Miramed on April 26, 2018, though his amended complaint does not describe the details of this call. (See Doc. #19 at 3). Jones initially filed his complaint in the State of Michigan 12th Judicial District small claims court on April 26, 2018, seeking $1, 000.00 plus “costs and fees.” (Doc. #1-1). On May 16, 2018, Miramed removed the action to this Court, as Jones's complaint asserted a federal claim under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Id.).

         On October 5, 2018, Jones filed a motion to amend/correct his complaint. (Doc. #12). After a hearing, the Court granted Jones's motion, and Jones filed his operative amended complaint on December 7, 2018. (Doc. #19). In his amended complaint Jones asserts six claims: in Count I, Jones alleges violations of the FDCPA-specifically, he cites 15 USC §§ 1692b[2] and 1692g; in Counts II and III, Jones alleges violations of MCL § 750.539 and § 750.539e, which prohibit eavesdropping and unlawful transmission of messages; and in Counts IV-VI, Jones alleges violations of 720 ILSC 5/14-5 and 720 ILSC 5/14-2(a)(5), the Illinois eavesdropping (and related) statutes. Miramed filed its instant motion to dismiss on December 28, 2018, pursuant to Fed.R.Civ.P. 12(b)(6), arguing that each of Jones's claims fail on the pleadings. (Doc. #20).

         B. Standard of Review

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests a complaint's legal sufficiency. “To 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 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.” Iqbal, 556 U.S. at 678 (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 fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556.

         In deciding whether a plaintiff has set forth a “plausible” claim, the court must accept the factual allegations as true. Id.; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). That tenet, however, “‘is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice' to prevent a complaint from being dismissed on grounds that it fails to sufficiently comport with basic pleading requirements.” Hogan v. Visio Fin. Servs., Inc., 2015 WL 3916084, at *3 (E.D. Mich. June 25, 2015) (quoting Iqbal, 556 U.S. at 678); see also Twombly, 550 U.S. at 555. Ultimately, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         When a court is presented with a Rule 12(b)(6) motion testing the sufficiency of a complaint, “it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).

         Generally, pleadings by pro se litigants are construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972). “Pro se litigants who are attorneys, however, ‘are not accorded the same consideration as pro se litigants who lack substantial legal training…[ ]… [B]ecause an attorney pro se litigant would be held to the standard of an attorney in representing others, it is not unfair to hold [the litigant] to the same standard when representing himself.” Doyle v. Sw. Airlines, Inc., 2018 WL 1128775, at *1 (D.N.J. Mar. 1, 2018) (internal citations omitted); see also Sevier v. Apple, Inc., No. 3:13-0607, 2015 WL 4873122, at *9 (M.D. Tenn. Aug. 13, 2015), aff'd (Sept. 6, 2016) (“Plaintiff is an attorney and, therefore his filings are not entitled to such deference [given to pro se litigants].”); Osgood v. Main Streat Mktg., LLC, No. 16CV2415-GPC(BGS), 2017 WL 131829, at *3 (S.D. Cal. Jan. 13, 2017) (collecting cases) (“District courts have held that licensed attorneys representing themselves are not entitled to the same liberal treatments as pro se litigants if they are registered members of the bar.”).

         C. Analysis

         In its motion to dismiss under Fed.R.Civ.P. 12(b)(6), Miramed argues: 1) Jones lacks standing to sue under 15 U.S.C. §§ 1692b and 1692g, the FDCPA subsections he pled in his amended complaint, because he is not a “consumer” under the statute; 2) Jones's claims under the Michigan eavesdropping statute fail, as a matter of law, because Michigan is a one-party consent state; 3) Jones's claims under the Illinois eavesdropping statute fail because they cannot, or should not, be enforced by this Court; and 4) the judicial proceeding privilege protects the transmission of the recording at issue for litigating this case, such that Counts III, V, and VI of Jones's complaint should be dismissed.

         1. Jones Lacks Standing Under the FDCPA Provisions Pled in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.