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Millsap v. National Enterprise Systems

United States District Court, D. Nebraska

March 29, 2018

BLAKE MILLSAP, Plaintiff,
v.
NATIONAL ENTERPRISE SYSTEMS, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This 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 be granted.

         BACKGROUND

         The 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.

         Plaintiff 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.

         NES 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 be granted.

         STANDARD OF REVIEW

         A 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).

         “A 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).

         Courts 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).

         DISCUSSION

         The facts alleged in Millsap's Complaint do not state a plausible claim for abusive or unfair debt ...


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