United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion for Judgment on the
Pleadings, ECF No. 21, filed by Defendant National Enterprise
Systems (NES). For the reasons stated below, the Motion will
following facts are those alleged in the Complaint, ECF No.
1, Page ID 5, which are assumed true for purposes of the
Motion for Judgment on the Pleadings.
Blake Millsap claims NES violated §§ 1692d and
1692f of the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq., by employing abusive and unfair
debt collection practices. The factual allegations supporting
Millsap's claim are contained in a single paragraph in
his Complaint, which states:
[NES], by and through various agents, is attempting
collection against the Plaintiff for a debt more than 8 years
old, wherein nothing was done by Plaintiff to toll the
statute of limitation [sic] with regard to the matter.
Plaintiff had entered into an agreement with EDUCATION
FINANCE PARTNERS in 2008 and nothing has been done to collect
or pursue that matter until early 2017. Further, Plaintiff
has no idea who [NES] is or Navient Solutions, LLC, which
suggest that they are the owners of said debt. Neither of
which has the Plaintiff ever contracted with nor has the
Plaintiff been provided any documentation, just a collection
letter and reporting to the credit bureaus which is adversely
affecting his credit rating.
Comp. ¶ 3, ECF No. 1, Page ID 5.
filed an Answer, ECF No. 7, to the Complaint and now moves
for judgment on the pleadings under Fed.R.Civ.P. 12(c)
arguing Millsap failed to state a claim upon which relief can
motion for judgment on the pleadings under Fed.R.Civ.P. 12(c)
is reviewed using the same standard that governs a motion to
dismiss under Fed.R.Civ.P. 12(b)(6). NanoMech, Inc. v.
Suresh, 777 F.3d 1020, 1023 (8th Cir. 2015) (citing
McIvor v. Credit Control Servs., Inc., 773 F.3d 909,
912-13 (8th Cir. 2014)). Therefore, courts must consider
whether the complaint has pled “enough facts to state a
claim that is plausible on its face.”
NanoMech, 777 F.3d at 1023 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Barton v. Taber, 820 F.3d 958, 964
(8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Zink v. Lombardi,
783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal,
556 U.S. at 678), cert. denied, 135 S.Ct. 2941
(2015). The complaint's factual allegations must be
“sufficient to ‘raise a right to relief above the
speculative level.'” McDonough v. Anoka
Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting
Twombly, 550 U.S. at 555). The Court must accept
factual allegations as true, but it is not required to accept
any “legal conclusion couched as a factual
allegation.” Brown v. Green Tree Servicing
LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting
Iqbal, 556 U.S. at 678). Thus, “[a] pleading
that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Ash v. Anderson Merchandisers,
LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting
Iqbal, 556 U.S. at 678), cert. denied, 136
S.Ct. 804 (2016).
must rule “on the assumption that all the allegations
in the complaint are true, ” and “a well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.'”
Twombly, 550 U.S. at 555 & 556 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
“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 sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation
in original) (quoting Iqbal, 556 U.S. at 679).
facts alleged in Millsap's Complaint do not state a
plausible claim for abusive or unfair debt ...