The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRANDEN MCAFEE,
Plaintiff,
Case No. 1:24-cv-715
v.
JUDGE DOUGLAS R. COLE
IC SYSTEM, INC., Magistrate Judge Bowman
Defendant.
OPINION AND ORDER
Plaintiff Branden McAfee, proceeding pro se, has once again sued Defendant
IC System, Inc. (IC) for violating the Fair Debt Collection Practices Act (FDCPA). See
15 U.S.C. § 1692 et seq. And once again IC seeks dismissal of the action, this time
arguing only that McAfee did not plausibly allege that the money owed is a “debt” as
15 U.S.C. § 1692a(5) defines the term. The Court agrees and therefore GRANTS
Defendant’s Motion to Dismiss (Doc. 4). Because the Court already provided McAfee
an opportunity to cure the instant deficiency, the Court DISMISSES McAfee’s
Complaint (Doc. 1-3) WITH PREJUDICE.
BACKGROUND
The facts supporting this FDCPA case are uncomplicated. McAfee alleges that,
on July 19, 2024, IC sent him a text attempting to collect a debt he owed to Verizon
Wireless. (Doc. 1-3, #17).1 According to McAfee, that same day he responded by text,
stating, “I don’t have any money and I decline to pay this debt.” (Id.). Several weeks
1 McAfee’s Complaint was initially filed with a missing page. The Court thus cites Document
1-3 as McAfee’s operative Complaint, as that attachment includes the missing page.
later, on September 1, 2024, IC allegedly sent McAfee the same debt collection text it
sent him in July. (Id. at #17–18, 22). McAfee argues that the content of his response
to IC’s first communication means that IC’s second communication violated the
FDCPA. (Id. at #17–18). So he brought this suit under 15 U.S.C. § 1692c(c). (Id. at
#18–19).
But the instant Complaint isn’t McAfee’s first bite at the apple. He initially
filed an almost identical complaint on September 3, 2024, under a different case
number. (See Compl., McAfee v. IC Sys., Inc., No. 1:24-cv-474 (S.D. Ohio Sept. 3,
2024), Doc. 1). In response, IC moved for judgment on the pleadings, arguing that
McAfee failed to allege facts showing that McAfee was a “consumer,” and that the
money owed was a “debt” as 15 U.S.C. § 1692a defines those terms. McAfee v. IC Sys.,
Inc., No. 1:24-cv-474, 2024 WL 5041024, at *1 (S.D. Ohio Dec. 9, 2024). The Court
agreed in part. It concluded that McAfee had plausibly alleged the “consumer”
element of his claim, but that his allegations fell short on the “debt” element. Id. at
*3. So the Court dismissed McAfee’s complaint without prejudice, noting that McAfee
could have potentially cured that deficiency by alleging additional facts. Id. at *4.
McAfee apprised himself of that opportunity and filed this action on December
13, 2024. (Doc. 1-3). In his new Complaint, apparently attempting to cure the
deficiency regarding the “debt” element, McAfee adds a new allegation—that the
Verizon Wireless account at issue “was originally obtained for personal, family, and
household purposes.” (Id. at #16).
IC again seeks to cut this case off at the pass—this time filing a motion to
dismiss in which it contends that the new allegation does not fix the previously
identified problem. Specifically, it argues that the allegation merely parrots
§ 1692a(5)’s text without providing any actual facts. (Doc. 4, #27). In other words, IC
says McAfee again failed to plausibly allege the “debt” element of his claim under the
Iqbal/Twombly paradigm, and that the Court should thus dismiss his Complaint. (Id.
at #28–29).
McAfee responded. (Doc. 7). He argues that the new allegation “cure[s] the
deficiencies” and “iron[s] out all wrinkles” the Court noted in its previous Opinion
and Order. (Id. at #41).
IC replied. (Doc. 8). So the motion is ripe.
LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a plaintiff must allege “sufficient factual matter … to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). While
a “plausible” claim for relief does not require a showing of probable liability, it
requires “more than a sheer possibility that a defendant has acted unlawfully.” Id.
The complaint must allege sufficient facts to allow the Court “to draw the reasonable
inference that the defendant is liable.” Id.
At the motion-to-dismiss stage, in assessing plausibility, the Court “must
accept the complaint’s well-pleaded factual allegations as true.” Lewis v. Acuity Real
Est. Servs., LLC, 63 F.4th 1114, 1116 (6th Cir. 2023); Iqbal, 556 U.S. at 678. And the
Court must “draw all reasonable inferences” in the plaintiff’s favor. Marchek v.
United Servs. Auto. Ass’n, 118 F.4th 830, 833 (6th Cir. 2024). But that does not mean
the Court must take everything the plaintiff alleges at face value, no matter how
unsupported. Rather, the Court may disregard “naked assertions” of fact or
“formulaic recitations of the elements of a cause of action.” Iqbal, 556 U.S. at 678
(cleaned up).
LAW AND ANALYSIS
To state a claim under the FDCPA, McAfee must plead facts creating at least
a plausible inference that (1) he is a consumer; (2) he incurred a debt; (3) IC is a debt
collector; and (4) IC’s conduct violated § 1692c(c)’s prohibitions. See Wallace v. Wash.
Mut. Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012); Williams v. Louisville Recovery
Serv., LLC, No. 24-5303, 2024 WL 4950167, at *2 (6th Cir. Dec. 3, 2024). IC argues
that McAfee failed to plausibly allege the second element.
The Court agrees. Under the FDCPA, a “debt” is a monetary obligation
incurred “primarily for personal, family, or household purposes.” 15 U.S.C.
§ 1692a(5). To clear the Iqbal/Twombly threshold, then, McAfee needed to allege facts
that allow the Court to reasonably infer that the money owed on the Verizon account
was tied to a personal, family, or household purpose. But he did not. Instead, McAfee
now alleges that “[t]he Verizon Wireless account in question was originally obtained
for personal, family, and household purposes.” (Doc. 1-3, #16). But that’s merely a
“formulaic recitation” of the FDCPA’s text, which the Court need not consider in
analyzing the plausibility of his claim. Iqbal, 556 U.S. at 678 (cleaned up). True,
McAfee did attach a screenshot to his Complaint that says, “Statement Details,” and
lists “branden – Phone” with a corresponding phone number. (Doc. 1-3, #23). But that
attachment in no way connects the relevant Verizon Wireless account to a personal,
family, or household purpose. For one, the screenshot appears to be a Spectrum
statement of account, not a Verizon statement. (See id.). For another, just because
McAfee owns the account does not mean it is used for personal purposes. As the Court
noted in its previous Opinion and Order, McAfee could use the Verizon account for
business or commercial purposes, in which case the FDCPA would not cover the debt.
See Lewis v. Sole L., PLLC, No. 22-1918, 2023 WL 11018147, at *2 (6th Cir. Nov. 17,
2023). All told, even considering McAfee’s new allegation, he did not plausibly allege
facts supporting the second element of his FDCPA claim, which dooms his
Complaint.2
One issue remains—whether the Court should dismiss McAfee’s Complaint
with prejudice, or without. Ultimately, the Court opts for the former. The Court has
already once found McAfee’s complaint legally deficient on the “debt” element.
McAfee, 2024 WL 5041024, at *3. And in the Court’s Opinion and Order dismissing
his previous complaint on those grounds, the Court specifically instructed McAfee
that if he wished to cure that deficiency by amendment, he must “allege facts giving
2 McAfee argues that, given his pro se status, the Court should hold his Complaint to a “less
stringent standard[]” than it would if a formal attorney had drafted the Complaint. (Doc. 7,
#40 (citation omitted)). While it’s true that courts liberally construe pro se pleadings, those
pleadings must nonetheless satisfy basic pleading requirements. Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989). In other words, McAfee’s Complaint still “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Wilson
v. City of Dayton, 14 F. Supp. 3d 900, 905 (S.D. Ohio 2014), aff’d, No. 14-3039 (6th Cir. June
13, 2014) (quoting Iqbal, 556 U.S. at 678). As explained, McAfee’s Complaint fails to do so.
rise to a plausible inference that he owes a ‘debt.’” Id. at *4 (emphasis added). As
explained, McAfee’s newly added conclusory allegation, in which he merely parrots
the statutory text to the effect that the Verizon account “was originally obtained for
personal, family, and household purposes,” doesn’t suffice. (Doc. 1-3, #16). Given the
Court’s previous express instructions, the Court can now assume that McAfee is
unable to successfully amend his Complaint to plausibly state an FDCPA claim.
Gavaldon v. Stanchart Sec. Int’l, Inc., No. 16-cv-590, 2018 WL 1470244, at *2 (S.D.
Cal. Mar. 26, 2018) (“When the Court has previously pointed out pleading defects and
the plaintiff has failed to correct them by amendment, the Court may assume that
the plaintiff cannot successfully amend.”). And in any event, “[a] plaintiff is not
entitled to unlimited chances to amend.” Andreae v. Cap. One, No. 1:22-cv-618, 2024
WL 1579914, at *6–7 (S.D. Ohio Apr. 11, 2024) (quoting United States ex rel. Kramer
v. Doyle, No. 1:18-cv-373, 2024 WL 1242301, at *4 (S.D. Ohio Mar. 22, 2024)). So the
Court will dismiss McAfee’s Complaint with prejudice.
CONCLUSION
Because McAfee did not allege facts giving rise to a plausible inference that he
owes a “debt” as the FDCPA defines that term, he has not sufficiently pleaded his 15
U.S.C. § 1692c(c) claim. And since the Court has previously dismissed McAfee’s claim
on that exact ground, the Court will not allow McAfee to amend or refile this claim.
Accordingly, the Court GRANTS Defendant’s Motion to Dismiss (Doc. 4) and
DISMISSES McAfee’s Complaint (Doc. 1-3) WITH PREJUDICE. The Court
DIRECTS the Clerk to enter judgment and to TERMINATE this case on its docket.
SO ORDERED.
February 7, 2025
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE