United States District Court, E.D. Michigan, Southern Division
Honorable Paul D. Borman Judge
REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S
MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
R. GRAND UNITED STATES MAGISTRATE JUDGE
the Court 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).
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
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.).
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 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).
Standard of Review
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.
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.
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
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.”).
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.
Jones Lacks Standing Under the FDCPA Provisions Pled in ...