Little v. Portfolio Recovery Associates, LLC , 548 F. App'x 514 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
November 25, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CASSANDRA LITTLE,
Plaintiff - Appellant,
No. 12-3266
v. (D.C. No. 2:12-CV-02205-JTM-GLR)
(D. Kan.)
PORTFOLIO RECOVERY
ASSOCIATES, LLC,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
Plaintiff-Appellant Cassandra Little appeals from the district court’s
judgment dismissing her Fair Debt Collections Practices Act (FDCPA) complaint
against Defendant-Appellee Portfolio Recovery Associates, LLC (“PRA”). The
district court dismissed the complaint and denied leave to amend. Little v.
Portfolio Recovery Assocs, LLC, No. 12–2205–JTM, 2012 WL 3889107 (D. Kan.
Sept. 7, 2012). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
part and reverse in part.
Background
Ms. Little filed her complaint on April 9, 2012, alleging that PRA engaged
in debt collection practices that violated 15 U.S.C. §§ 1692d(5) and 1692e(11).
Specifically, Ms. Little alleged that PRA called her by telephone and engaged her
in conversation with the intent to annoy, abuse, and harass her. Aplt. App. 7-8.
Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and in
response, Ms. Little moved to file an amended complaint. She attached a
proposed amended complaint to her motion.
The amended complaint added details to Ms. Little’s § 1692d(5) claim,
Aplt. Br. 10-12, omitted her § 1692e(11) claim, and added allegations under
§§ 1692e(2) and (5). Aplt. Br. 10-13; Aplt. Appx. 12-15. In rejecting the
proposed amended complaint, the district court stated that it was identical to the
original complaint except for the added § 1692e(5) claim, and that it failed to
satisfy the federal pleading requirements. Little, 2012 WL 3889107, at *1. The
court noted that it dismissed another complaint filed by Ms. Little’s attorney on
behalf of a different client in Webb v. Convergent Outsourcing, Inc.,
11-2606-JTM, 2012 WL 162394 (D. Kan. Jan. 19, 2012), a non-controlling
district court decision.
Discussion
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We review a denial of leave to amend a complaint for abuse of discretion.
Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010), and a dismissal
under Rule 12(b)(6) de novo, Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). Leave may be denied when the amendment would be futile.
Wilkerson, 606 F.3d at 1267. A proposed amendment is futile if the amended
complaint would be subject to dismissal. Jefferson Cnty. Sch. Dist. No. R-1 v.
Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). To avoid
dismissal, the complaint must present “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).
“Plausibility” refers to the scope of the complaint; it cannot be so general as to
encompass a wide swath of innocent conduct. Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008). In assessing a motion to dismiss for failure to state
a claim, we accept all factual allegations in the complaint as true and view them
in the light most favorable to the plaintiff. Smith, 561 F.3d at 1098. Conclusory
statements, threadbare recitals of elements, and legal conclusions, however, are
not entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must provide more than “naked assertion[s] devoid of
further factual enhancement.” Id. (internal quotation marks omitted).
A. Section 1692e(5) Claim
15 U.S.C. § 1692e(5) prohibits debt collectors from threatening “to take
any action that cannot legally be taken or that is not intended to be taken” in
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connection with debt collection. In her proposed amended complaint, Ms. Little
alleged:
Defendant’s agent falsely stated that if the debt was not
paid ‘it will go further.’ When asked by Plaintiff what that
meant, Defendant’s collector falsely stated that ‘it will go
to litigation’ and ‘we will take you to court’ in violation of
[15 U.S.C. § 1692e(5)].
Aplt. App. 15. We agree with the district court that Ms. Little has failed to state a
plausible claim under § 1692e(5). She has not alleged any facts supporting an
inference that PRA’s threats to litigate were legally proscribed or not made in
good faith. Absent such support, Ms. Little’s allegation that the statements were
made “falsely” is conclusory. The district court was therefore within its
discretion to deny Ms. Little leave to amend her complaint as to this claim
because amendment would have been futile.
B. Other Claims
The district court, however, did not analyze Ms. Little’s claims under
§§ 1692d(5) or 1692e(2). It noted that it dismissed another complaint in a
different case, but did not engage in any substantive comparison of the
complaints. Little, 2012 WL 3889107, at *1; see Webb, 2012 WL 162394, at *2.
Of course, the amended complaint must be evaluated on its own terms. The
district court also incorrectly stated that Ms. Little’s amended complaint was
identical to her original complaint except for the paragraph introducing the
§ 1692e(5) claim. The amended complaint made at least three other changes: it
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specified the type of account Ms. Little held and owed debt on, Aplee. Supp. App.
12 ¶ 17; it alleged that the harassing behavior took place between February and
April, 2012, id. at 12 ¶ 25, and that PRA’s employees continued to call (multiple
times per day) even after Ms. Little advised them she could not pay, id. at 13 ¶¶
32, 33.
Given these omissions, we think the better course is to return the case to
the district court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976). On remand,
the district court may obtain supplemental briefing and consider the
characteristics of Ms. Little’s § 1692d(5) claim that differ from the complaint in
Webb, and address the § 1692e(2) claim in paragraph 35 of the proposed amended
complaint. See Aplt. App. 15. We therefore affirm the judgment to the extent of
its rejection of the § 1692e(5) claim, and reverse as to its rejection of the others at
this stage.
AFFIRMED in part, REVERSED in part, and REMANDED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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