United States District Court, D. Oregon, Portland Division
JILLIAN MCADORY, an Individual Residing in Multnomah County, Plaintiff,
M.N.S & ASSOCIATES, LLC, and DNF ASSOCIATES, LLC, foreign limited liability companies, Defendants.
D. Jones Kelly D. Jones, Attorney at Law, Kevin A. Mehrens
Law Office of Kevin A. Mehrens Attorneys for Plaintiff
M. New The Law Office of Jordan Michael, Brendan H. Little
Lippes Mathias Wexler Friedman LLP Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, United States District Judge
Fair Debt Collection Practices action, Defendant DNF
Associates, LLC moves to dismiss Plaintiff Jillian
McAdory's Amended Complaint, arguing that (1) DNF cannot
be a “debt collector” as defined by the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692-1692p
(“FDCPA”), and (2) even if DNF can be a
“debt collector” under the statute, Plaintiff
failed to plausibly allege that DNF is a “debt
collector.” Because I agree with DNF's first
argument, I grant DNF's motion.
issue at hand revolves around a consumer debt Plaintiff
incurred with Kay Jewelers, a non-party, which Kay Jewelers
subsequently sold to DNF. Am. Compl. ¶¶ 3, 8, ECF
16. Plaintiff alleges that DNF is vicariously liable for
allegedly illegal debt collection activities taken by M.N.S.
Id. at ¶ 20. The following facts are taken from
Plaintiff's First Amended Complaint.
November 2016, Plaintiff first learned of DNF in a letter
sent to her by a non-party company called First Choice
Assets, LLC. Id. at ¶ 9. The letter stated that
Plaintiff “owed a debt to DNF that originated with Kay
Jewelers.” Id. Because Plaintiff had never
heard of DNF, she ignored the letter. Id. On
February 24, 2017, Plaintiff received a voice message that
did not identify the caller nor reference any debt, instead
stating the call was in regards to “asset
verification.” Id. at ¶ 9. The message
scared Plaintiff into returning the call, during which
Plaintiff spoke with someone who identified himself as M.N.S.
agent Michael Shaw. Id. at ¶ 13. Shaw implied
he was a lawyer and indicated that Plaintiff was about to be
sued for unpaid debt. Id.
later calls and emails with M.N.S., Plaintiff agreed to pay
the debt. Id. at ¶¶ 14-18. Then, in May
2017, Plaintiff filed this action, alleging that M.N.S. had
violated multiple provisions of the FDCPA. Id. at
¶ 22. Furthermore, Plaintiff alleges that DNF was itself
a debt collector and was vicariously liable for M.N.S.'s
violations of the statute. Id. at ¶ 20.
Plaintiff alleges that DNF purchases defaulted consumer
debts, and then “contracts with a myriad of other
physical debt collectors across the country, ”
supplying information necessary to facilitate the collection
of those debts. Id. at ¶ 6. Plaintiff further
alleges that the third parties “make contact with
alleged debtors, in DNF's name, and at DNF's
direction, ” operating within parameters set by DNF.
Id. In response, DNF moves to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that it
cannot be held vicariously liable as DNF does not meet the
statutory definition of “debt collector.”
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept all material facts alleged in the complaint
as true and construe them in the light most favorable to the
non-moving party. Wilson v. Hewlett-Packard Co., 668
F.3d 1136, 1140 (9th Cir. 2012). However, the court need not
accept unsupported conclusory allegations as truthful.
Holden v. Hagopian, 978 F.2d 1115, 1121 (9th
Cir.1992); see also Warren v. Fox Family Worldwide,
Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("we do
not necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations") (internal quotation marks and alterations
issues raised in Defendant's motion are (1) whether a
debt purchaser such as DNF can possibly meet the
definition of “debt collector” under the FDCPA,
15 U.S.C. § 1692a(6), and (2) if it can, did Plaintiff
allege sufficient facts or actions taken by DNF to plausibly
allege that DNF meets the statutory definition of “debt
collector.” DNF argues that a debt purchaser who merely
buys defaulted accounts and takes no affirmative action to
collect on said debt can never meet the statutory definition
of “debt collector.” Plaintiff counters that DNF
does meet the statutory definition of “debt
collector” as the principal purpose of DNF's
business is “the acquisition and subsequent collection
of defaulted debts.” Pl.'s Resp. 14, ECF 20.
FDCPA defines a debt collector at 15 U.S.C. § 1692a(6):
The term “debt collector” means any person 
who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the
collection of any debts, or  who regularly collects or
attempts to collect, directly or ...