United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE.
for consideration the motion of defendant, Portfolio Recovery
Associates, LLC, to dismiss. The court, having considered the
motion, the response of plaintiff, Pricilla Gonzales, the
reply, the record, and applicable authorities, finds that the
motion should be granted.
March 14, 2019, plaintiff filed her original complaint in
this action. Doc,  1. On April 29, 2019, defendant filed its
motion to dismiss. Doc. 11. On May 9, 2019, plaintiff filed
her amended complaint. Doc. 14.
amended complaint, plaintiff makes a number of conclusory
allegations and very few factual ones. In particular, she
does not allege that she incurred any debt at any place or
time pursuant to any particular agreement or arrangement. She
says that she is asserting claims for violation of the Fair
Debt Collection Practices Act, 15 U.S.C. §§
1692-1692p ("FDCPA"), based on collection letters
written by defendant. Doc. 14 at 3, ¶ 22. Specifically,
she alleges that the letters say: "The law limits how
long you can be sued on a debt and how long a debt can appear
on your credit report. Due to the age of this debt, we
will not sue you for it or report payment or
non-payment of it to a credit bureau."
Id. Plaintiff alleges that these provisions
violate the FDCPA because (1) defendant did not inform
plaintiff that a subsequent debt buyer could sue if
plaintiff's promise to repay or partial payment restarted
the statute of limitations, and (2) the notice did not say
that neither defendant nor anyone else "absolutely
cannot sue" plaintiff.
Grounds of the Motion
urges that plaintiff cannot proceed with either of her claims
under the FDCPA. Defendant maintains that the claims fail as
a matter of law. And, plaintiff has not plausibly alleged
that there is any threat that she will be sued on the debt at
Applicable Pleading Standard
8(a) (2) of the Federal Rules of Civil Procedure provides, in
a general way, the applicable standard of pleading. It
requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief," Fed.R.Civ.P. 8(a)(2), "in order to give
the defendant fair notice of what the claim is and the
grounds upon which it rests," Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and ellipsis omitted). Although a complaint need not
contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a
cause of action. Twombly, 550 U.S. at 555 & n.3.
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
legal conclusions that are unsupported by any factual
underpinnings. See Ashcroft v. Iqbal; 556
U.S. 662, 679 (2009) ("While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations.").
to survive a motion to dismiss for failure to state a claim,
the facts pleaded must allow the court to infer that the
plaintiff's right to relief is plausible. Iqbal,
556 U.S. at 678. To allege a plausible right to relief, the
facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining
whether a complaint states a plausible claim for relief . . .
[is] a context-specific task that requires the reviewing
court to draw on its judicial experience and common
considering a motion to dismiss for failure to state a claim,
the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are
central to the plaintiff's claims. Scanlan v. Tex.
A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) . The
court may also refer to matters of public record. Papasan
v. Allain, 478 U.S. 265, 268 n.1 (1986); Davis v.
Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995); Cinel v.
Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). This
includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.l
(5th Cir. 2003). And, it includes taking notice of
governmental websites. Kitty Hawk Aircargo, Inc. v.
Chao, 418 F.3d 453, 457 (5th Cir. 2005);
Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005)
count I of the amended complaint, plaintiff says that
defendant violated § l692e of the FDCPA by making false
and misleading representations that defendant "will not
sue" and failing to inform plaintiff that a subsequent
debt buyer could sue if plaintiff's promise to repay or
partial payment restored the statute of limitations. Doc. 14
at 4. Under Texas law, the statute of limitations on a
time-barred debt, such as this one, is revived only if there
is a writing containing an unequivocal acknowledgment of the
justness of the claim and an expression of a willingness to
pay. House of Falcon, Inc. v. Gonzalez, 583 S.W.2d
902, 905 (Tex. Civ. App.-Corpus Christ! 1979, no writ); Tex.
Civ. Prac. & Rem. Code § 16.065 (West 2015). Partial
payment alone is not sufficient to revive a time-barred debt.
Mandola v. Oggero, 508 S.W.2d 861, 863 (Tex. Civ.
App.-Houston [14th Dist.] 19 74, no writ). Thus, there was no
need for defendant to warn plaintiff that revival of the
statute of limitations was possible. See Madinya v
Portfolio Recover Assocs., LLC, No. 18-CV-61138, 2018 WL
6590829, at *3 (S.D. Fla. Dec. 14, 2018).
regard, plaintiff devotes significant attention to Texas
choice of law provisions, arguing that the substantive law of
another (unidentified) state should apply in this case. Doc.
17 at 2, 4-5, 9-11. However, plaintiff failed to plead any of
the facts that would support the choice of another
state's law. But, in any event, plaintiff overlooks
that the letter specifically states that defendant will not
sue or report payment or nonpayment, even if the payment
restarts the limitations period.In this regard, this case is
easily distinguished from Daugherty v. Convergent
Outsourcing, Inc., 836 F.3d 507 (5th Cir. 2016), upon
which plaintiff relies. Doc. 17 at 7-9. The provision at
issue here discloses the unenforceability of the debt and
that the enforceability might be revived by partial payment,
but defendant still will not sue. Plaintiff has not pleaded
any facts to show that defendant would not abide by its
promise. See Cooper v. Midland Credit Mgmt., Inc.,
No. 4;18-CV-82-CDL, 2018 WL 6517448, at *3 (M.D. Ga. Dec. 11,
2018). Nor is there any ...