United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on plaintiffs motion to remand
[DE 8], defendant's motion to dismiss [DE 11], plaintiffs
motion for summary judgment [DE 17], as well as
defendant's motion for summary judgment, or, in the
alternative, to stay the matter pending disposition of the
motion to dismiss [DE 18]. The matters have been fully
briefed and are ripe for disposition. For the reasons
discussed below, the motion to dismiss is granted and the
matter will be closed.
commenced this civil action on November 8, 2016, by filing a
complaint against defendant in Wake County Court, North
Carolina, District Court Division. Plaintiffs complaint
asserts claims against defendant under the federal Fair Debt
Collection Practices Act ("FDCPA") and the North
Carolina's Debt Collection Act ("NCDCA")
related to defendant's efforts to service certain debts.
Plaintiff seeks damages in the amount of $20, 500. On
December 29, 2016, defendant removed the matter to this
Court will first address plaintiffs motion to
remand. Removal of a civil action from state court
is only proper where the federal district courts would have
original jurisdiction, 28 U.S.C. § 1441, and it is the
burden of the removing party to show that jurisdiction lies
in the federal court. Dixon v. CoburgDairy, Inc.,
369 F.3d 811, 816 (4th Cir. 2004) (en banc). Removal
jurisdiction must be construed strictly in light of
federalism concerns, and if jurisdiction in the federal
district court is determined to be doubtful, remand is
required. Mulcahey v. Columbia Organic Chems. Co.,
29 F.3d 148, 151 (4th Cir. 1994).
district courts have original jurisdiction over all civil
actions "arising under the Constitution, laws, or
treaties of the United States." 28 U.S.C. § 1331.
Removal is appropriate on the basis of federal question
jurisdiction when the federal interest is apparent on the
"face of the Complaint." Gully v. First
Nat 7 Bank, 299 U.S. 109, 113 (1936). Here,
plaintiff s complaint specifically asserts that defendant has
violated the Fair Debt Collection Practices Act. [DE 1-1 at
¶ 3]. This assertion is repeated throughout the
complaint. Id. at ¶¶ 1, 3, 4, 7, and 14.
This is a clear and explicit invocation of federal
jurisdiction, notwithstanding plaintiffs claims that she
included the federal cause of action only to
"coincide" with the state law cause of action or
that she intends to rely only on the state statutes cited in
her complaint. [DE 8 at 2]. Because plaintiffs complaint
clearly presents a federal question as to plaintiffs FDCPA
claim, this court has original jurisdiction over the matter
and plaintiffs motion to remand is without merit.
Additionally, this Court has supplemental jurisdiction over
plaintiffs remaining state law claims because all of
plaintiff s claims arise from a common nucleus of operative
facts. 28 U.S.C. § 1367(a). For these reasons,
plaintiffs motion to remand will be denied.
found jurisdiction over this matter, the Court next turns to
defendant's motion to dismiss. A Rule 12(b)(6) motion to
dismiss tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 1
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the facts
pled "allow the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,
" and mere recitals of the elements of a cause of action
supported by conclusory statements do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
complaint must be dismissed if the factual allegations do not
nudge the plaintiffs claims "across the line from
conceivable to plausible." Twombly, 550 U.S. at
570. The complaint must plead sufficient facts to allow a
court, drawing on judicial experience and common sense, to
infer more than the mere possibility of misconduct. Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 256 (4th Cir. 2009). The court need not accept the
plaintiffs legal conclusions drawn from the facts, nor need
it accept as true unwarranted inferences, unreasonable
conclusions, or arguments. Philips v. Pitt County Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Although the
Court must construe the complaint of a. pro se
plaintiff liberally, such a complaint must still allege
"facts sufficient to state all the elements of [her]
claim" in order to survive a motion to dismiss. Bass
v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765
(4th Cir. 2003).
considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court may consider documents attached to the complaint,
as well as those attached to the motion to dismiss so long as
they are integral to the complaint and authentic.
Fed.R.Civ.P. 10(c); Sec'y of State for Defence v.
Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007); Philips v. Pitt County Mem 7 Hosp.,
572 F.3d 176, 180 (4th Cir. 2009). A court ruling on a motion
to dismiss under Rule 12(b)(6) may also properly take
judicial notice of matters of public record. Sec'y of
State for Defence, 484 F.3d at 705.
first argument for dismissal contends that plaintiff does not
allege sufficient supporting facts and ultimately cannot show
that defendant is a "debt collector" as defined by
the FDCPA and, therefore, cannot state a claim under that
Act. The FDCPA prohibits the use of abusive, deceptive and
unfair debt collection practices by debt collectors. 15
U.S.C. § 1692, et seq. The Act
regulates the collection of "debts" by "debt
collectors" by regulating the type and number of
contacts a collector may make with the debtor. Under 15
U.S.C. § 1692a(6), a "debt collector" includes
"any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose
of which is the collection of any debts, or who regularly
collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due
another." A "debt collector" does not include
any person collecting or attempting to collect any debt owed
or due or asserted to be owed or due another to the extent
such activity (i) is incidental to a bona fide fiduciary
obligation or a bona fide escrow arrangement; (ii) concerns a
debt which was originated by such person; (iii) concerns a
debt which was not in default at the time it was obtained by
such person; or (iv) concerns a debt obtained by such person
as a secured party in a commercial credit transaction
involving the creditor.
15 U.S.C. § 1692a(6)(F).
plaintiff stated in her complaint that defendant is a debt
collector, such a conclusory assertion is not sufficient to
meet the pleading standards laid out by Twombly and
Iqbal. Instead, plaintiff must allege sufficiently
plausible facts which set forth a cognizable claim for this
Court to adjudicate. As plaintiff has asserted a claim under
the FDCPA, plaintiff therefore must allege such facts
sufficient to plausibly demonstrate that defendant is a
"debt collector" as defined in that Act, and a
failure to do so is fatal to this action. Plaintiffs
complaint must also allege plausible facts to show that this
is not a case covered by any exceptions listed in the Act.
Again, a failure to allege such requisite facts is fatal to
initial matter, plaintiffs complaint fails to include any
factual assertions to establish that defendant is a debt
collector within the meaning of the FDCPA. Plaintiffs
complaint is sparse on facts, and fails to demonstrate with a
reasonable plausibility that defendant is a debt collector by
trade or regularly attempts to collect debts on behalf of
third parties. Heintz v. Jenkins,514 U.S. 291, 293
(1995); see also Davidson v. Capital One Bank (USA),
N.A.,797 F.3d 1309, 1315-16 (11th Cir. 2015) ("The
statutory text is entirely transparent. . .. [A] person must