A District Court judge in Minnesota has granted a defendant’s motion to dismiss a Fair Debt Collection Practices Act lawsuit after the plaintiff abandoned the claims in his complaint in favor of a third-party disclosure theory that the complaint never actually alleged.
The background: The plaintiff received a series of debt collection text messages and sued, but by the time the case reached oral argument, he was pursuing a different theory than the one he pleaded.
- The plaintiff received a text message from the defendant informing him that he would be receiving account messages from the defendant, which identified itself as a debt collector, along with a hyperlink to a letter containing “debt information with your options and rights.”
- The hyperlink redirected to a full collection letter that disclosed the name of the debt collector, the name of the creditor, the amount allegedly owed, and a link to pay.
- Over the following two weeks, the plaintiff received three more similar messages, all arriving mid-morning.
- The plaintiff filed a lawsuit seeking class action status, alleging the messages were sent without his prior consent, amounted to harassing conduct, and were false or misleading. He claimed the texts left him annoyed, confused, and alarmed.
- The defendant moved to dismiss. In opposing the motion, the plaintiff pivoted, arguing the texts were an improper disclosure of the debt to third parties because a message on a cell phone screen is easily viewable by someone other than its owner. When asked at oral argument whether the focus of the case was now the third-party disclosure claim, the plaintiff’s counsel confirmed it was.
The ruling: Judge John R. Tunheim of the District Court for the District of Minnesota granted the motion, ruling that the plaintiff had walked away from the claims in his complaint and had not plausibly alleged the one he ended up arguing.
- Because the plaintiff’s briefing and oral argument were devoted almost entirely to the third-party disclosure theory, Judge Tunheim concluded the plaintiff had abandoned his original claims and focused his analysis solely on that theory.
- The FDCPA prohibits a collector from communicating about a debt with anyone other than the consumer and a short list of permitted parties. Courts in the district have found violations where voicemails containing debt details were overheard by a consumer’s children or other household members, and another court found a violation where a creditor’s name and account number were visible through the window of an envelope.
- The complaint, however, never alleged that another person saw, or even could have seen, any of the messages the plaintiff received. The argument that cell phones are easily viewed by others appeared only in the plaintiff’s briefing, and the judge noted that his inquiry at this stage is limited to the facts alleged in the complaint itself.
- Recognizing that the plaintiff’s “novel theory has evolved since the initial filing” of the complaint, the judge dismissed the case without prejudice, leaving the door open for the plaintiff to try again.
