ESTHER SALAS, District Judge.
This putative class action arises from alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (the "FDCPA"). (See generally D.E. No. 1, Complaint ("Compl.")). Before the Court is Defendant Diversified Consultants, Inc.'s ("Defendant's") motion to dismiss Plaintiff Waleska Martinez's ("Plaintiff's") Complaint under Federal Rule of Civil Procedure 12(b)(6). (D.E. No. 16). Having considered the parties' submissions,
The Court will "set out facts as they appear in the Complaint . . . ." See Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
Before September 19, 2017, Plaintiff incurred a financial obligation to Verizon. (Compl. ¶ 25). On or before September 19, 2017, Plaintiff's account with Verizon became past due and entered default. (Id. ¶ 31). To collect on that debt, Verizon referred the financial obligation to Defendant. (Id. ¶ 32). On September 19, 2017, in an attempt to collect on the debt, Defendant sent a collection letter (the "Collection Letter") to Plaintiff. (Id. ¶ 34; see D.E. No. 1 at 16 ("Compl. Ex. A")).
(Compl. Ex. A). At the top, the Collection Letter also lists Plaintiff's name and account number (in redacted form) and the balance due. (Id.). In the middle, below the signature block, the Collection Letter lists Defendant's toll-free phone number, hours of operation, and website. (Id.). And on a cut-off at the bottom, the Collection Letter lists Defendant's address and toll-free phone number, and Plaintiff's account information and the balance due. (Id.).
Plaintiff filed the Complaint on November 21, 2017, contending that Defendant violated 15 U.S.C. § 1692g(a) because the Collection Letter "would cause the least sophisticated consumer to become confused as to what she must do to effectively dispute [a] debt" (id. ¶ 45; see also id. ¶¶ 42-57) (Count I); and that Defendant violated 15 U.S.C. § 1692e(10) by "using [a] false representation or deceptive means to collect or attempt to collect any debt" (id. ¶ 59; see also id. ¶¶ 58-68) (Count II).
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." But in order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Pursuant to the pleading regime established by Twombly and Iqbal, the Court of Appeals for this Circuit has promulgated a three-pronged test of the sufficiency of a complaint. See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the Court considers "the elements a plaintiff must plead to state a claim." Id. Second, the Court abstracts from mere legal conclusions contained in the complaint, which "are not entitled to an assumption of truth." Id. (quoting Iqbal, 556 U.S. at 680). That is, a complaint's "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," Iqbal, 556 U.S. at 678, cannot "nudge[ ] [a plaintiff's] claims across the line from conceivable to plausible," Twombly, 550 U.S. at 570. Finally, the Court considers the complaint's remaining well-pleaded factual allegations and "determine[s] whether they plausibly give rise to an entitlement for relief." Santiago, 629 F.3d at 130 (quoting Iqbal, 556 U.S. at 679). Throughout this process, the Court is "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant." See, e.g., McDermott v. Clondalkin Grp., Inc., 649 F. App'x 263, 266 (3d Cir. 2016).
Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors" because "[e]xisting laws and procedures . . . [we]re inadequate to protect consumers." See 15 U.S.C. § 1692(b) & (e). "The FDCPA is a strict liability statute to the extent it imposes liability without proof of an intentional violation." Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir. 2011).
15 U.S.C. § 1692g(a) requires a debt collector to provide the following information to the debtor:
"Paragraphs 3 through 5 of section 1692g(a) contain the validation notice—the statements that inform the consumer how to obtain verification of the debt and that he has thirty days in which to do so." Caprio v. Healthcare Revenue Recovery Gro., LLC, 709 F.3d 142, 147 (3d Cir. 2013). The validation notice must be "interpreted from the perspective of the least sophisticated debtor" and must not be "overshadowed or contradicted by accompanying messages from the debt collector." Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991).
When evaluating whether a debt collection letter violates the Section 1692g, courts consider both the "form" and "substance" of the letter. See, e.g., Caprio, 709 F.3d at 151 (citing Wilson, 225 F.3d at 361). "Substance" is matter of language—such as "please call"—and "form" is a matter of the presentation and context of that language—such as whether it is bolded and where it appears. See id.
In Caprio, for instance, the Court of Appeals ruled that the language "If we can answer any questions, or if you feel you do not owe this amount,
The FDCPA also prohibits the use of "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. §1692e. More specifically, "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer" is prohibited. 15 U.S.C. §1692e(10). Section 1692e(10) is a "catch-all-type provision." Rosenau v. Unifund Corp., 539 F.3d 218, 224 (3d Cir. 2008). But "[w]hen allegations under 15 U.S.C. §1692e(10) are based on the same language or theories as allegations under 15 U.S.C. §1692g, the analysis of the §1692g claim is usually dispositive." Caprio, 709 F.3d at 155 (internal quotation marks and citations omitted).
Defendant's primary conclusion is that the Collection Letter complies with Section 1692g of the FDCPA and, under the least-sophisticated debtor standard, did not overshadow or mislead Plaintiff regarding her right to dispute the debt in writing. (See Def. Mov. Br. at 4-12). More specifically, the Collection Letter "merely provide[d] the consumer with [Defendant]'s telephone number and disclosed that calls to or from the company may be monitored or recorded" but "d[id] not ask the consumer to call [Defendant] whatsoever." (Id. at 4). Moreover, the Collection Letter "d[id] not include any bold text, italics, or other emphasis on certain text or font, or place extra emphasis or textual prominence on [Defendant's] telephone number." (Id.).
Plaintiff's primary response emphasizes the placement of Defendant's telephone number three times on the Collection Letter and the language "Calls to or from this company may be monitored or recorded." (See Pl. Opp. Br. at 8-9). Plaintiff also argues that Defendant "inappropriately shift[s] the burden in complying with the FDCPA" apparently because the Collection Letter offers debtors the option to dispute their debts in writing—what Plaintiff calls a "fictitious condition[ ] precedent" that would require Plaintiff to "dispute the debt, or demand verification, to have a successful FDCPA claim against [Defendant]." (See id. at 9-11).
For the reasons discussed below, the Court rules that the Collection Letter contains the required validation notice under Section 1692g(a) and does not violate Section 1692g in substance or form because it does not "overshadow" or "contradict" the validation notice. See, e.g., Graziano, 950 F.2d at 111; Wilson, 225 F.3d at 356.
The Court "begin[s] with the `substance' of the Collection Letter." See Caprio, 709 F.3d at 151. The Collection Letter does not "instruct[ ] [Plaintiff] to call." See id. The Collection Letter thus does not, for instance, "instruct[ ] [Plainitff] to call either a toll-free telephone number or a 24-hour automated customer service number . . . ." See Laniado v. Certified Credit & Collection Bureau, 705 F. App'x 87, 90 (3d Cir. 2017). And the Collection Letter does not suggest that a telephone call could be used to dispute a debt—such as by stating, "If you feel you do not owe this amount, please call." See, e.g., Caprio, 709 F.3d at 150-52. The Collection Letter simply provides Defendant's telephone number, spaced throughout three times, and states, "Calls to or from this company may be monitored or recorded"
The Court observes that even an "instruction to call"—of which there is none here—would not necessarily violate Section 1692g. See, e.g., Rosa v. Encore Receivable Mgmt., Inc., No. 15-2311, 2016 WL 4472951, at *3 (D.N.J. Aug. 23, 2016); Reynolds v. Encore Receivable Mgmt., Inc., No. 17-2207, 2018 WL 2278105, at *4 (D.N.J. May 18, 2018) ("The Court agrees with Judge Shipp's reasoning in Rosa."), appeal dismissed sub nom. Reynolds v. Encore Receivable Mgmt. I, No. 18-2269, 2018 WL 6536133 (3d Cir. Oct. 25, 2018). And "merely provid[ing] the consumer with . . . contact information" such as a telephone number—as the Collection Notice does do here—does not violate Section 1692g. See, e.g., Riccio v. Sentry Credit, Inc., No. 17-1773, 2018 WL 638748, at *6 (D.N.J. Jan. 31, 2018).
With respect to the "form" of the Collection Letter, the Court observes that none of the factors that informed the Caprio court's decision are present here: neither an exhortation to "call" nor Defendant's telephone number is "printed in bold" on the Collection Letter; Defendant's telephone number does not appear anywhere on the Collection letter in relatively "larger font;" Defendant's "mailing address [does not] only appear[ ] in the letterhead" of the Collection Letter; and the validation notice is not "relegated to the back side of the Collection Letter." See Caprio, 709 F.3d at 151-52; see also Wilson, 225 F.3d at 352-53 (rejecting a claim under Section 1692g when "all three paragraphs" of the relevant collection letter were "printed in the same font, size and color type-face"); Reizner v. Nat'l Recoveries, Inc., No. 17-2572, 2018 WL 2045992, at *9 (D.N.J. May 2, 2018) ("There is no language emphatically instructing Plaintiff to contest the debt by telephone. The validation notice is not on the backside of the letter in grey typeface."). Furthermore, the factors that led the Caprio court to distinguish an earlier case in which a collection letter was upheld—such as the fact that the "validation notice appeared on the [relevant] front side of the document"—are present here. See Caprio, 709 F.3d at 152-53.
For those reasons, the Collection Letter "ultimately does not overshadow or contradict, even when viewed from the perspective of the least sophisticated debtor." See Cruz v. Recoveries, No. 15-0753, 2016 WL 3545322, at *4 (D.N.J. June 28, 2016), appeal dismissed sub nom. Cruz v. Fin. Recoveries, No. 16-3017, 2016 WL 11262517 (3d Cir. Nov. 16, 2016).
The Court also rejects Plaintiff's argument that—apparently because the Collection Letter offers debtors the option to dispute their debts in writing—Defendant "inappropriately shift[ed] the burden in complying with the FDCPA." (See Pl. Opp. Br. at 2 & 9-10). In Wilson, for instance, the collection letter used almost the exact same language as the Collection Letter here;
Plaintiff's Section 1692e(10) claim is premised on the same allegations as her Section 1692g claim. (See, e.g., Compl. ¶ 58 ("Plaintiff repeats the allegations contained in paragraphs 1 through 57 as if the same were here set forth at length.")). But "[w]hen allegations under 15 U.S.C. § 1692e(10) are based on the same language or theories as allegations under 15 U.S.C. § 1692g, the analysis of the § 1692g claim is usually dispositive." Caprio, 709 F.3d at 155 (internal quotations and citations omitted). "Because Plaintiff cannot prevail on her claim under Section 1692g, Plaintiff likewise cannot proceed under Section 1692e(10)." See, e.g., Cruz, 2016 WL 3545322, at *4; Reizner, 2018 WL 2045992, at *10 ("The Court finds that the letter does not violate Section 1692g(a) and, as result, it also does not violate Section 1692e(10).").
For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss: The Compliant is DISMISSED without prejudice. To the extent Plaintiff can cure any deficiencies identified in the Court's Opinion, Plaintiff may do so within thirty days in an amended complaint. But "application for dismissal . . . may be made if a timely amendment is not forthcoming within that time." See Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976) (per curiam)).