UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRIAN J. ELLISON,

Plaintiff, Civil Action No. 15-cv-11361

vs. HON. BERNARD A. FRIEDMAN

NATIONAL COLLEGIATE STUDENT

LOAN,

Defendant.

__________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

On March 10, 2015, plaintiff commenced the instant action by filing a two-count

complaint in the 43rd District Court in Madison Heights, Michigan. Count One of the complaint

alleges various violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692

et seq., and Count Two alleges harassment. Defendant timely removed this matter on the basis of

federal question jurisdiction. Defendant then filed a motion to dismiss. Instead of responding to the

motion to dismiss, plaintiff filed a motion to remand the case to state court. The Court denied

plaintiff’s motion to remand and sua sponte granted plaintiff an additional 14 days to respond to

defendant’s motion to dismiss. Plaintiff has not responded and the time for him to do so has expired. 

I. Law and Analysis

“An opposing party’s failure to respond to a dispositive motion can be a basis for

granting a motion to dismiss.” Mooneyham v. Equifax Info. Servs., LLC, 14-cv-136, 2015 WL

1407365, at *2 n.1 (6th Cir. 2015) (citing Humphrey v. U.S. Attorney Gen.'s Office, 279 F. App'x

328, 331 (6th Cir. 2008)). However, an uncontested motion to dismiss does not relieve the Court

of the duty to analyze the movant’s argument. See id. In comparing a motion to dismiss to a

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motion for summary judgment, the Sixth Circuit has cautioned:

[A] district court cannot grant summary judgment in favor of a

movant simply because the adverse party has not responded. The

court is required, at a minimum, to examine the movant's motion for

summary judgment to ensure that he has discharged that burden. We

see no reason why the situation should be different in the context of

a motion to dismiss for failure to state a claim under Fed.R.Civ.P.

12(b)(6).

Mooneyham, 2015 WL 1407365, at *2 n.1. Accordingly, the Court must ensure that defendant’s 

motion to dismiss satisfies the 12(b)(6) standard.

To survive a motion to dismiss, “a complaint must contain sufficient factual matter

. . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing 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.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556). “Threadbare recitals of all the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id. To survive a motion to dismiss, the “complaint

must contain either direct or inferential allegations respecting all the material elements to sustain

a recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). 

In deciding a motion to dismiss, the Court “must construe the complaint in the light

most favorable to the plaintiff and accept all of the complaint’s factual allegations as true,” Ziegler

v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001), while keeping in mind that “allegations

of a complaint drafted by a pro se litigant are held to less stringent standards than formal pleadings

drafted by lawyers in the sense that a pro se complaint will be liberally construed in determining

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whether it fails to state a claim upon which relief can be granted,” Jourdan v. Jabe, 951 F.2d 108,

110 (6th Cir. 1991).

 Count One of plaintiff’s complaint alleges a violation of § 805(3) and § 807(2)(A)

of the FDCPA. For plaintiff’s FDCPA claim to survive a motion to dismiss, plaintiff must plausibly

plead the following four elements: (1) that he is a “consumer” as defined in 15 U.S.C. § 1692a(3);

(2) that the “debt” arises out of a transaction which is “primarily for personal, family or household

purposes”; (3) that defendant is a “debt collector” as defined by the FDCPA; and (4) defendant

violated one of the prohibitions in the FDCPA. Wallace v. Washington Mut. Bank, F.A., 683 F.3d

323, 326 (6th Cir. 2012). Defendant argues that plaintiff has failed to plausibly plead facts to

establish two of these elements. 

Defendant argues that plaintiff has failed to allege any facts that plausibly establish

that the underlying obligation was a “ debt,” as that term is defined under the FDCPA. The FDCPA

defines the term “debt” as “any obligation or alleged obligation of a consumer to pay money arising

out of a transaction in which the money, property, insurance, or services which are the subject of the

transaction are primarily for personal, family, or household purposes, whether or not such obligation

has been reduced to judgment.” 15 U.S.C. § 1692a(5). After reviewing plaintiff’s complaint, the

Court agrees with defendant. The complaint is completely devoid of any factual allegations that

describe the debt in question. Plaintiff has not alleged that he incurred the debt for “personal,

family, or household purposes,” nor has he alleged any facts that he is a “consumer” within the

meaning of the FDCPA. Plaintiff has therefore failed to plead an essential element of his FDCPA

claim. Defendant also argues that plaintiff has failed to allege any facts that plausibly

establish that defendant was a “debt collector.” The FDCPA applies only to a “debt collector,”

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which is defined as “any person who uses any instrumentality of interstate commerce or the mails

in any business the principal purpose of which is the collection of any debts, or who regularly

collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due

to another.” 15 U.S.C. § 1692a(6). The Court agrees with defendant, but not for the reason

discussed in defendant’s motion. Plaintiff’s complaint, which the Court must accept as true, states,

“Defendant NATIONAL COLLEGIATE STUDENT LOAN, by and through its attorney(s)

SHERMATA [sic], ADAMS & VON ALLMEN, P.C., continually serves collection notices to

PLAINTIFF.” Compl. at ¶ 1. By plaintiff’s own admission, defendant is not the entity responsible

for collecting the debt; rather, the law firm Shermeta, Adams & Von Allmen, P.C., is the entity

attempting to collect the alleged debt. Accordingly, because plaintiff has failed to plead elements

necessary to his FDCPA claim (i.e., “debt” and “debt collector”), plaintiff’s complaint, even when

construed liberally, must be dismissed.1

Plaintiff’s complaint also alleges harassment. Defendant argues that because

Michigan statutory and common law does not recognize the tort of harassment, this claim should

also be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). After reviewing Michigan statutory and case

1 Defendant argues that plaintiff’s complaint should be dismissed pursuant to Fed. R.

Civ. P. 12(b)(6) for the additional reasons that plaintiff has (1) failed to plead facts showing

compliance with the statute of limitations; (2) failed to plead facts essential to establishing a §

805(g) claim; and (3) requested relief for which he is not entitled under the FDCPA. As discussed

above, plaintiff has failed to plead elements necessary for his FDCPA claim to survive a motion to

dismiss. The Court therefore finds it unnecessary to address these additional arguments.

Further, defendant argues that the complaint should be dismissed for insufficient

service of process pursuant Fed. R. Civ. P. 12(b)(5). The Court also finds it unnecessary to address

this argument, as the complaint must be dismissed under Fed. R. Civ. P. 12(b)(6). 

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law, the Court agrees with defendant. Count Two of plaintiff’s complaint must be dismissed for

failure to state a claim upon which relief can be granted.

II. Conclusion

For the aforementioned reasons,

IT IS ORDERED that defendant’s motion to dismiss [docket entry 6] is granted.

 S/ Bernard A. Friedman__________

 BERNARD A. FRIEDMAN

 SENIOR UNITED STATES DISTRICT JUDGE

Dated: July 30, 2015

Detroit, Michigan

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