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McCusker v. ARS National Services, Inc.

United States District Court, D. South Dakota

January 12, 2016

WILLIAM McCUSKER, Plaintiff,
v.
ARS NATIONAL SERVICES, INC., Defendant.

ORDER GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT AND DENYING DEFENDANT’S MOTION TO DISMISS

KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

Plaintiff, William McCusker, filed suit against defendant, ARS National Services, Inc., alleging violations of the Fair Debt Collection Practices Act (FDCPA) under 15 U.S.C. § 1692 et seq. Docket 1. ARS filed a motion to dismiss under Federal Rule 12(b)(6). Docket 10. After the court granted an extension of the deadline to respond to the motion to dismiss, McCusker filed a motion for leave to amend his complaint in order to clarify facts and modify the grounds upon which he seeks relief. Docket 14. ARS opposes McKusker’s motion. For the following reasons, McKusker’s motion for leave to amend his complaint is granted and ARS’s motion to dismiss is denied.

STANDARD OF REVIEW

A. Motion to Dismiss Complaint

Under Federal Rule 12(b)(6), a court must review whether the complaint states a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). A complaint must provide a short, plain statement showing that the pleader is entitled to relief. See Fed. R. Civ. P. 8(a)(2). Furthermore, the complaint must assert “enough facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. In this analysis, the court assumes that all facts asserted in the complaint are true and construes all reasonable inferences from those facts in a light most favorable to the complainant. Rochling v. Dep’t of Veterans Affairs, 725 F.3d 927, 930 (8th Cir. 2013). A well-pleaded complaint should survive a motion to dismiss “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 555-56 (internal quotations omitted).

B. Motion to Amend Complaint

“A party may amend its pleading once as a matter of course within . . . 21 days after service of a motion under Rule 12(b)[.]” Fed.R.Civ.P. 15(a)(1)(B). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). Although Rule 15(a) dictates that “[t]he court should freely give leave [to amend a complaint] when justice so requires, ” Fed.R.Civ.P. 15(a)(2), the court may deny the motion due to “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment . . . [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).

DISCUSSION

The court “notes that it is common practice for a party to seek leave to amend in response to a motion to dismiss.”[1] Ireland v. Anderson, 2014 WL 3732014, at *2 (D.N.D. July 25, 2014) (citing Jameson v. State Farm Mut. Auto. Ins. Co., 871 F.Supp.2d 862, 869 (W.D.Mo. May 14, 2012)). In fact, the Eighth Circuit Court of Appeals has stated that a “motion to amend a complaint may moot a pending motion to dismiss.” Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002); see also Janis v. Nelson, 2009 WL 4505933 (D.S.D. Nov. 24, 2009) (holding that the motion to dismiss was rendered moot after plaintiff filed amended complaint). Here, ARS argues that the court should deny McCusker’s motion for leave to amend his complaint because the proposed complaint is both futile and sought to accomplish dilatory motives. Therefore, with the understanding that courts should freely grant motions for leave to amend a complaint, the court’s inquiry is limited to whether ARS has met its burden of establishing that McKusker’s motion is either futile or sought to accomplish dilatory motives.

I. The proposed-amended complaint is not futile.

“A proposed amendment is futile if it could not withstand a motion to dismiss for failure to state a claim.” Jameson, 871 F.Supp. 2d. at 867. When a court reviews a motion to dismiss under Rule 12(b)(6), two working principles underlie the decision. First, the “tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. This tenet also applies to “a legal conclusion couched as a factual allegation.” Id. Second, when determining whether the remaining factual allegations state a plausible claim for relief, a court should rely upon its “judicial experience and common sense.” Id. at 679. These principles create a two-pronged approach for reviewing a complaint in response to a motion to dismiss: (1) the court must discard from consideration any allegation that constitutes a legal conclusion; and (2) the court must determine whether the remaining factual allegations state a plausible claim for relief.

A. Factual Allegations in the Complaint.

After discarding legal conclusions[2] from consideration and viewing the facts alleged in the proposed-amended complaint in a light most favorable to the nonmoving party, McCusker, the facts are as follows:

McCusker is a resident of Sioux Falls, South Dakota. ARS is a company engaged in debt collection in South Dakota. In November 2009, McCusker had previously utilized a credit card issued by CitiBank, N.A., and had accrued an outstanding balance of $27, 843.77. In connection with the outstanding debt, ARS sent McCusker a letter on November 2, 2013, seeking to collect payment on the debt. Docket 1-1. ARS’s November 2013 letter to McCusker stated that the debt balance was $28, 208.37. In July 2014, Citibank’s records indicate that the debt balance remained $27, 843.77. It is Citibank’s general business ...


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