Jackson v. Credit Control, LLC

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JHESHUA JACKSON, Plaintiff, v. CREDIT CONTROL, LLC, and RICHARD G. SAFFER, CEO, Defendants.

Civil Action No. 23-cv-02074-NYW-KAS

United States District Court, D. Colorado

October 26, 2023

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kathryn A. Starnella United States Magistrate Judge

This matter is before the Court on Defendants' Motion to Dismiss [#16]^[1] (the “Motion”). Plaintiff who proceeds as a pro se litigant,^[2] filed a Response [#21]^[3] in opposition to the Motion [#16], and Defendant filed a Reply [#22]. The Motion [#16] has been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#18]. The Court has reviewed these briefs, the entire case file, and the applicable law, and is fully advised in the premises. For the reasons stated below the Court respectfully RECOMMENDS that the Motion [#16] be GRANTED in part and DENIED in part.

I. Background^[4]

Defendant Richard G. Saffer (“Saffer”) is the Chief Executive Officer of defendant Credit Control, LLC. Compl. [#15] at 4. Plaintiff alleges that Defendants contacted him and asserted that he owes a debt of $5,596.94 upon which they are trying to collect. Id. at 5. He states, however, that he does not owe any money to Defendants. Id. at 7. On March 7, 2023, he verbally requested a validation of the debt from “the counter defendant,” and he requested a validation of the debt in writing from “the counter defendant” on March 10, 2023, and March 20, 2023. Id. at 5. He alleges that “Defendant failed to validate its claim” as required by law. Id. In addition, Plaintiff states that “Defendant has made false or factual[ly] incorrect claims or statements to various credit reporting bureaus or services against the plaintiff and misrepresented material facts about the disputed account.” Id. at 6.

As a result of these allegations, Plaintiff explicitly asserts two causes of action: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”) and (2) violation of the Fair Credit Reporting Act (“FCRA”). Id. at 5-6. Plaintiff also may be asserting causes of action in connection with contract law and the Uniform Commercial Code (“U.C.C.”), which the Court discusses in Section III.B.1. below. Plaintiff seeks monetary and injunctive relief. Id. at 6. In the present Motion [#16], Defendants seek dismissal of all claims asserted against them pursuant to Fed.R.Civ.P. 12(b)(6).

II. Standard of Review

Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the complaint includes ‘well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Carraway v. State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do ....[n]or does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint alone is legally insufficient to state a claim.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

III. Analysis

At the outset, the Court notes that Defendants provide four documents which they argue the Court may consider when adjudicating the present Motion [#16] without converting it to a motion for summary judgment. Motion [#16] at 2 (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)). The four documents are: (1) Credit Control's Initial Notice, sent to Plaintiff on February 15, 2023, see Defs.' Ex. B [#16-2]; (2) Dispute and Request for Validation Letter, received by Credit Control on March 16, 2023, see Defs.' Ex. C [#16-3]; (3) Dispute and Request for Validation Letter, received by Credit Control on April 11, 2023, see Defs.' Ex. D [#16-4]; and (4) Validation Response Letter, mailed to Plaintiff by Credit Control on March 17, 2023, see Defs.' Ex. E [#16-5]. See Defs.' Ex. A, Decl. of Def. Richard Saffer [#16-1] ¶ 3. For the following reasons, the Court declines to consider any of these documents.

“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF Corp., 130 F.3d at 1384. The only written documents to which Plaintiff explicitly refers in the Complaint [#15] are two written validation requests made on March 10, 2023, and March 20, 2023. Compl. [#15] at 5. The March 10, 2023 request appears to be Defendants' Exhibit C [#16-3], the Dispute and Request for Validation Letter, received by Credit Control on March 16, 2023, which was postmarked on March 10, 2023. Although the Court may therefore consider this document, the Court also finds that it has no material impact on the Motion's resolution, and therefore the Court declines to consider it.

The Complaint's reference to a March 20, 2023 validation request does not appear to have any obvious connection to the second validation request provided to Defendants, i.e., Exhibit D [#16-4], the Dispute and Request for Validation Letter, received by Credit Control on April 11, 2023. All relevant dates in Exhibit D are in April 2023. Thus, the Court finds that it may not consider this document in its adjudication of the Motion [#16] because Plaintiff does not appear to have referenced it in the Complaint [#15].

Defendants' Exhibit B [#16-2], the Credit Control's Initial Notice, sent to Plaintiff on February 15, 2023, may implicitly be referenced in the Complaint [#15] where Plaintiff states that Defendants have “unlawfully assert[ed] a claim that plaintiff owe[s] an alleged $5,596.84 in debt and that the defendant may collect assessment for such alleged debt.” Compl. [#15] at 5. Regardless, the Court finds that it has no material impact on the Motion's resolution, and therefore the Court declines to consider it.

Finally, the Court finds that it may not consider Defendants' Exhibit E [#16-5], the Validation Response Letter, mailed to Plaintiff by Credit Control on March 17, 2023, because Plaintiff does not reference it in his Complaint [#15]. In fact, he affirmatively states that “Defendant failed to validate its claim,” and refers to no other written communication from Defendants which could be construed to be this documentation. Thus, the Court finds that it may not consider this document in connection with the adjudication of the Motion [#16].

A. Defendant Saffer

Defendant Saffer, CEO of Defendant Credit Control, LLC, is named in this action, but Plaintiff does not further mention him or allege any actions taken by him, in either the Complaint [#15] or the Response [#21]. “[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Plaintiff has not provided any specific allegations regarding any specific actions taken by Defendant Saffer.

Accordingly, the Court recommends that the Motion [#16] be granted to the extent that Plaintiff's claims against Defendant Saffer be dismissed without prejudice. B. Defendant Credit Control, LLC

1. Contract Law and the U.C.C.

There appears to be some confusion regarding what specific claims are being asserted by Plaintiff, particularly with respect to contract law and the U.C.C. At one point in his Complaint [#15], he states that Defendants committed “[v]iolations of the following 1. FDCPA, 2. FCRA, 3. Contract Law (Restatement of Law Second Contract), [and] 4. U.C.C.” Compl. [#15] at 3. A page later, he again mentions these four causes of action. Id. at 4. However, one page later again, in the formal, expanded statement of his claims, he mentions only the FDCPA and the FCRA. Id. at 5-6. In his Response [#21], Plaintiff implies that the contract and U.C.C. aspects of his lawsuit are part of his FDCPA claim. Response [#21] at 1 (“In my complaint, I have sufficiently alleged numerous violations of the FDCPA by Credit Control LLC, including but not limited to: . . . Contract law, C.R.S. Title 4 (U.C.C.).”). Plaintiff otherwise does not mention contract law or the U.C.C. in his Response [#21].

Even liberally construing Plaintiff's Complaint [#15], the allegations in support of such claims are exceedingly thin. For example, Plaintiff states, “there has never been any exchange of any money or item of value between plaintiff and defendant”; “there is no contract in writing between the plaintiff and the defendants...