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Clifford v. MRS Bpo, LLC

United States District Court, W.D. Tennessee, Western Division

April 22, 2015

EUGENE CLIFFORD, Plaintiff,
v.
MRS BPO, LLC dba MRS ASSOCIATES, Defendant.

ORDER GRANTING DEFENDANT, MRS BPO, LLC'S, MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT

JON P. McCALLA, District Judge.

Before the Court is Defendant, MRS BPO, LLC's, Motion to Dismiss Plaintiff's Amended Complaint, filed February 12, 2015. (ECF No. 12.) Plaintiff Eugene Clifford filed a Response on February 24, 2015. (ECF No. 13.)

On April 2, 2015, the Court held a Telephonic Motion Hearing attended by counsel for the parties. (ECF No. 21.) On April 10, 2015, the Court Granted Plaintiff's Motion to Amend Complaint. (ECF No. 23.)

For the reasons stated below, Defendant's Motion is GRANTED. In resolving Defendant's Motion to Dismiss, the Court has considered the facts as alleged in Plaintiff's Amended Complaint as amended by Plaintiff's Motion to Amend Complaint (hereinafter referred to as "Second Amended Complaint") and those additional facts alleged by Plaintiff's Counsel, William A. Cohn, on the record during the Telephonic Motion Hearing.

I. BACKGROUND

A. Factual Background

This case concerns whether Defendant MRS BPO, LLC ("MRS") violated the Fair Debt Collection Practices Act ("FDCPA") by contacting a third party. MRS is incorporated and headquartered in New Jersey and is registered to do business in Tennessee. (Am. Compl. ¶ 2, ECF No. 11.) At some time before November 26, 2014, MRS attempted to collect a debt from Plaintiff Eugene Clifford by calling the telephone number (901) 858-9118. (Id. at ¶ 3.) The telephone number, however, belonged to William A. Cohn, a lawyer with experience in debt collections. (Id. at ¶ 5.) According to Mr. Cohn, MRS contacted him with a local number and left a message stating that the call was from MRS with regard to a personal business matter. (ECF No. 22 at 7:9-16.) Mr. Cohn then called the number, where MRS stated who they were, where they were located, and that they were trying to contact Eugene Clifford regarding a personal business matter. (Id. at 8:10-18.) The call was not recorded. (Id. at 6:8-9.) Mr. Cohn began representing Plaintiff sometime after this phone call. (See id. at 6:1-4.)

B. Procedural Background

On November 26, 2014, Plaintiff Clifford filed his original complaint in the Court of General Sessions of Shelby County, Tennessee. (ECF No. 12-1 at 2.) MRS removed the suit to the United States District Court for the Western District of Tennessee on December 29, 2014. (ECF No. 1.) MRS filed a Motion for a More Definite Statement regarding Plaintiff's complaint on January 5, 2015. (ECF No. 9.) The Court granted the Motion for a More Definite Statement on February 2, 2015. (ECF No. 10.)

On February 7, 2015, Clifford filed an Amended Complaint and More Definite Statement. (ECF No. 11.) The Amended Complaint alleged that: (1) MRS utilized deceptive practices, including the use of a local telephone number, to try and contact Plaintiff; (2) MRS was negligent and failed to conduct its due diligence to determine Plaintiff's contact information; and (3) MRS violated the FDCPA by representing through its "conduct and actions" that it was trying to collect a debt from Plaintiff when it contacted Mr. Cohn, a third party. (Id. at ¶¶ 4-8.)

On February 12, 2015, MRS filed a Motion to Dismiss Plaintiff's Amended Complaint. (ECF No. 12.) The Motion to Dismiss asserts (1) that Plaintiff failed to allege a proper FDCPA claim; (2) that the FDCPA does not prohibit the use of a local telephone number when placing collection calls; (3) that the FDCPA does not prohibit calls to third parties; and (4) that Plaintiff has not alleged facts to support the claim that MRS told a third party that it was trying to collect a debt from Plaintiff. (ECF No. 12-1 at 2.) On February 24, 2015, Plaintiff filed a Motion to Amend Complaint, which proposed certain amendments to the Amended Complaint (ECF No. 11). (ECF No. 13.)

On April 2, 2015, the Court held a Telephonic Motion Hearing regarding MRS's Motion to Dismiss and Plaintiff's Motion to Amend Complaint. (ECF No. 21.) On April 7, 2015, the court reporter filed a Notice of Filing of Official Transcripts of Telephonic Motion Hearing held on April 2, 2015. (ECF No. 22.) On April 10, 2015, the Court granted Plaintiff's Motion to Amend Complaint. (ECF No. 23.) As of the date of this Order, Plaintiff has yet to file a subsequent complaint incorporating the modifications that were proposed in Plaintiff's Motion to Amend Complaint (ECF No. 13). Although a revised Amended Complaint has not been filed with the Court, this Order will refer to the Amended Complaint as amended by Plaintiff's Motion (ECF No. 13) as the "Second Amended Complaint."

II. LEGAL STANDARD

A. Rule 12(b)(6) Motion ...


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