United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
Barbara Smith has sued Conn Credit Corporation, Inc.
("Conn Credit" or "Defendant") for
violations of the Texas Debt Collection Act
("TDCA"),  the Fair Debt Collection Practices Act
("FDCPA"),  and the Telephone Consumer Protection Act
("TCPA").Pending before the court is Defendant Conn
Credit Corporation, Inc.'s FRCP 12(b)(6) Motion to
Dismiss Plaintiff Barbara Smith's Verified Complaint
("Motion to Dismiss") (Docket Entry No. 6) . For
the reasons explained below, Defendant's Motion to
Dismiss will be denied.
Barbara Smith alleges that Defendant called her cellular
telephone 133 times from June 13, 2016, to July 10, 2016, in
an attempt to collect a debt related to a Conn's Home
Plus account. At least some of the calls were made by an
automatic telephone dialing system or resulted in voice-mail
messages featuring an artificial or prerecorded voice.
Plaintiff revoked, both verbally and via facsimile, any prior
express consent to be contacted by Defendant. She also
advised Defendant that she was represented by counsel and
requested that any communication be directed to her attorney.
Plaintiff alleges that the calls were made for the purpose of
harassment and not for any lawful purpose. Defendant argues
that Plaintiff has sued the wrong party and moves to dismiss
Plaintiff's Complaint for failure to state a claim upon
which relief may be granted.
Standard of Review
12(b)(6) motion tests the formal sufficiency of the pleadings
and is "appropriate when a defendant attacks the
complaint because it fails to state a legally cognizable
claim." Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001), cert. denied sub nom. Cloud v.
United States, 122 S.Ct. 2665 (2002) . The court must
accept the factual allegations of the complaint as true and
view them in the light most favorable to the plaintiff.
Id. (citing Oppenheimer v. Prudential Securities
Inc.. 94 F.3d 189, 194 (5th Cir. 1996)) . To defeat a
motion to dismiss, a plaintiff must plead "enough facts
to state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly, 127
S.Ct. 1955, 1974 (2007). The court generally is not to look
beyond the pleadings in deciding a motion to dismiss.
Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.
1999). "Pleadings" for purposes of a Rule 12(b)(6)
motion include the complaint, its attachments, and documents
that are referred to in the complaint and central to the
plaintiff's claims. Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).
argues that "[w]hen a plaintiff names the incorrect
party as a defendant in its lawsuit, moving to dismiss for
failure to state a claim is the appropriate
remedy." In support of this proposition, Defendant
cites a single unreported case: Cunningham v. Advanta
Corp., Civil Action No. 3:08-CV-1794-K (BH), 2009 WL
290031 (N.D. Tex. Feb. 3, 2009) . In Cunningham the
plaintiff sued a corporation and five of its officers for
violations of the TDCA and FDCPA. After granting summary
judgment in favor of the corporate defendant, the court
considered a motion to dismiss the claims against the
officers. Concluding that the claims against the
officers were not viable because the corporation was not a
proper party to the suit, and additionally that the plaintiff
"failed to allege any facts showing how the Defendant
Officers were involved in any of the actions that form the
basis of his complaint, " the court dismissed the
is distinguishable in at least two significant respects.
First, the court in Cunningham relied on summary
judgment evidence in reaching its decision. In the present
case no parties have presented evidence beyond the pleadings
and attachments.Second, the court concluded that there
were no factual allegations as to how the corporate officers
were involved. Here, Plaintiff has plainly alleged wrongful
conduct by the Defendant.
essence of Defendant's Motion to Dismiss is that this is
a case of mistaken identity. But mistaken identity is a
mistake of fact. Defendant argues that it is not a party to
the contract between Plaintiff and Conn Appliances,
Inc. But Plaintiff does not allege a
contractual relationship,  only that Defendant attempted
to collect the debt. The court therefore has no reason to
reject Plaintiff's factual allegations.
also argues that Plaintiff's claims are conclusory and
consist of bare recitations of the elements. So the court
will consider each claim and its supporting allegations in
turn under the proper 12(b)(6) standard.
Count I: Violation of the TDCA
TDCA prohibits debt collectors from harassing a person
"by causing a telephone to ring repeatedly or
continuously, or making repeated or continuous telephone
calls, with the intent to harass a person at the called
number." Tex. Fin. Code Ann. § 392.302(4) (West). A
"debt collector" is defined as "a person who
directly or indirectly engages in debt collection . . .
." Id. at § 392.001. Plaintiff alleges
that Defendant called her 133 times from June 13, 2016, to
July 10, 2016, in an attempt to collect a debt.Plaintiff's factual allegations
support a claim for violation of the TDCA.
Count II: ...