United States District Court, D. New Hampshire
Opinion No. 2014 DNH 215
LANDYA McCAFFERTY, District Judge.
This case arises out of a series of attempts to collect a credit-card debt. Eugenia and John Doucette ("the Doucettes") have sued GE Capital Retail Bank ("GE") and NCO Financial Systems, Inc. ("NCO"). Against NCO, the Doucettes assert claims under: (1) New Hampshire's Unfair, Deceptive, or Unreasonable Collection Practices Act ("UDUCPA"), N.H. Rev. Stat. Ann. ch. 358-C (Count I); (2) the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p (Count III); and (3) the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (Count V). Before the court is NCO's motion for judgment on the pleadings as to Count V. The Doucettes object. For the reasons that follow, NCO's motion for partial judgment on the pleadings is granted.
The Legal Standard
Motions for judgment on the pleadings, under Rule 12(c) of the Federal Rules of Civil Procedure, are evaluated under the same standard as motions to dismiss under Rule 12(b)(6). See Frappier v. Countrywide Home Loans, Inc. , 750 F.3d 91, 96 (1st Cir. 2014)) (quoting Marrero-Gutierrez v. Molina , 491 F.3d 1, 5 (1st Cir. 2007)).
Ruling on a motion to dismiss for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6), requires the court to conduct a limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). The heart of that limited inquiry concerns "whether the complaint contains sufficient factual matter to state a claim to relief that is plausible on its face." Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 717 (1st Cir. 2014) (quoting Rodríguez-Reyes v. Molina-Rodríguez , 711 F.3d 49, 53 (1st Cir. 2013)) (internal quotation marks and brackets omitted). To conduct its limited inquiry, a court must: (1) "isolate and ignore statements in the complaint that simply offer legal labels an conclusions or merely rehash cause-of-action elements, " id. (quoting Schatz v. Republican State Leadership Comm. , 669 F.3d 50, 55 (1st Cir. 2012)); and (2) "take the facts of the complaint as true, drawing all reasonable inferences in [plaintiff's] favor, and see if they plausibly narrate a claim for relief, '" id. (quoting Schatz , 669 F.3d at 55).
The following facts are drawn from the Doucettes' complaint. See Carrero-Ojeda, 755 F.3d at 717.
GE issued Mrs. Doucette a credit card. She accumulated debt on the card, and then fell behind on her payments. In June of 2013, she "began to receive collection calls" that "were made by NCO in an attempt to collect payment on the [d]ebt" she owed GE. Am. Compl. (doc. no. 13) ¶¶ 18, 20. "In its debt collection efforts, NCO was either acting on behalf of or as an agent [of] or [in the] employ of GE." Id . ¶ 23. NCO "placed [some of its] Collection Calls using an artificial or prerecorded voice to [the Doucettes'] residential telephone line." Id . ¶ 104. In Count V of their amended complaint, the Doucettes claim that by placing automated collection calls to their residential phone line, without having gotten their consent to receive such calls, NCO violated 47 U.S.C. § 227(b)(1)(B).
NCO argues that it is entitled to judgment on the pleadings on Count V because the collection calls at issue here lie beyond the scope of the TCPA. The court agrees.
Among other things, the TCPA makes it unlawful for any person within the United States
to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B).
47 U.S.C. § 227(b)(1)(B). Under § 227(b)(2)(B)(ii), Congress gave the Federal Communications Commission ("FCC") the authority to exempt calls made for commercial purposes that: (1) "will not adversely affect the privacy rights that this section is intended to protect"; and ...