IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

MICHAEL C. DEMARQUIS, 

Plaintiff, 

v. 

ALORICA INC, 

Defendant. 

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Case No.: 1:20-cv-00634-LY 

ALORICA INC.’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

 Defendant Alorica Inc. (“Alorica”), by counsel, pursuant to Fed. R. Civ. P. 12(b)(6), 

hereby submits its Motion to Dismiss Plaintiff’s Second Amended Complaint. 

INTRODUCTION

Plaintiff’s third iteration of his complaint fares no better than the others and should 

be dismissed, this time with prejudice. The Magistrate Judge’s Report and Recommendation 

(ECF No. 22), accepted and adopted by the Court (ECF No. 23), explained that Plaintiff’s 

“threadbare” recitals of the elements of a cause of action, “supported by mere conclusory 

statements,” do not suffice to state a claim. (Report, at 5.) Yet in his Second Amended 

Complaint, Plaintiff simply doubles-down, repeating the same elements and recitals that 

were deemed insufficient the last go around. Again, Plaintiff has failed to allege any actual 

facts which, if true, would establish Alorica’s status as a debt collector. Instead we’re left 

with the same labels and conclusions. Plaintiff’s Second Amended Complaint should be 

dismissed with prejudice. 

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ARGUMENT

When considering a dismissal for failure to state a claim upon which relief may be 

granted, the Court accepts as true “all well-pleaded facts” and views them in the light most 

favorable to the plaintiff. See Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 

464, 467 (5th Cir. 2004). However, a plaintiff must allege specific facts, not conclusory 

allegations. Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989). Conclusory allegations, as

well as unwarranted deductions of fact, are not admitted as true. Guidry v. Bank of LaPlace, 

954 F.2d 278, 281 (5th Cir. 1992). To survive a motion to dismiss, a plaintiff must plead 

“enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (emphasis added); see also In re Katrina Canal Breaches

Litig., 495 F.3d 191, 205 (5th Cir. 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, 663 (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. Where a complaint pleads 

facts that are “merely consistent with” a defendant’s liability, it “stops short of the line 

between possibility and plausibility of ‘entitlement to relief.’” Id. at 678 (quoting Twombly). 

“Factual allegations must be enough to raise a right to relief above the speculative level, on 

the assumption that all the allegations in the complaint are true (even if doubtful in fact).” 

In re Katrina, 495 F.3d at 205 (quoting Twombly). However, the Court need not accept as 

true legal conclusions. “Threadbare recitals of the elements of a cause of action, supported 

by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. Only those complaints 

which state a plausible claim for relief survive a motion to dismiss. Id. In making this 

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determination, the reviewing court must “draw on its judicial experience and common 

sense.” Id. at 679. 

A. Plaintiff Fails to Plead Facts Which If True Would Establish That Alorica Is a

Debt Collector Under the FDCPA and the TDCA.		

As the Court previously recognized, whether a defendant is a debt collector is a 

threshold question for pleading a cognizable claim. See, e.g., Williams v. Countrywide Home

Loans, Inc., 504 F. Supp. 2d 176, 190 (S.D. Tex. 2007) (the plaintiffs’ claims under the 

FDCPA failed because the lender defendants were not debt collectors). Under the FDCPA, a 

“debt collector” refers to “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 another.” 15 U.S.C. § 1692a(6). Under the TDCA, a “debt 

collector” is one who, “directly or indirectly, engages in debt collection.” Tex. Fin. Code 

§392.001. 

 Plaintiff’s Amended Complaint had simply declared that Alorica is a “debt collector” 

because its “principal [business] purpose” is the “collection of debt owed or due or asserted 

to be owed or due another,” (Report, at 5), parroting exactly the FDCPA’s statutory text. 

Plaintiff’s Second Amended Complaint similarly declares that Alorica is a “debt collector” 

because “the principal purpose of Defendant’s business is the collection of debt owed to 

others.” (2nd Am. Compl., ¶11.) Plaintiff then repeats that same core allegation, apparently 

hoping that sheer repetition of the same formulaic recitation will be construed as somehow 

asserting more “facts.” (Id., at ¶10 (alleging Alorica “collects debts owed to third parties”).1

1 Plaintiff’s allegations under the TDCA fare no better. For instance, Plaintiff’s Amended Complaint 

alleged that Alorica is a “debt collector” under the TDCA because it “directly or indirectly engages in 

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But of course simply repeating what have already been deemed to be insufficient 

allegations does not somehow cure the defects. As the Report and Recommendation 

pointed out, pleading standards demand much more. And missing from the Second 

Amended Complaint are any actual facts that could establish either that (1) Alorica’s 

principal business purpose is the collection of debts, or (2) that it “regularly collects or 

attempts to collect, directly or indirectly, debts owed or due or asserted to be due another.” 

15 U.S.C. § 1692a(6). Instead, we’re left simply with a formulaic recitation of the language 

of the statute and then allegations as to Alorica’s specific interactions with Plaintiff, none of 

which could establish Alorica’s principal business purpose or what its regular business 

practices are. 

Again, this is precisely the kind of formulaic recitation of the elements of a cause of 

action and bare allegations that, under Iqbal and Twombly, are insufficient to state a claim. 

Because Plaintiff’s Second Amended Complaint—like the other iterations—offers no factual 

basis to infer whether Alorica is or is not a debt collector, it fails to state plausible claims 

under both Acts. See Garcia v. Jenkins/Babb LLP, 2012 WL 3847362, at *6 (N.D. Tex. July 31, 

2012), rec. adopted, 2012 WL 3846539 (N.D. Tex. Sept. 5, 2012) (dismissing FDCPA claims 

after finding that the plaintiffs' recitation of the statutory language, without any facts in 

support, was insufficient to plausibly allege that the defendants were “debt collectors” 

under the Act); Busby v. Vacation Resorts Int’l, 2019 WL 669641 (S.D. Tex. Feb. 19, 2019) 

(dismissing FDCPA and TDCA claim where plaintiff only made conclusory allegation that 

defendant was a debt collector, with no supporting factual allegations). 

debt collection.” (Report, at 5.) In his Second Amended Complaint, Plaintiff simply alleges that 

Alorica is a “debt collector” under the TDCA because it “directly or indirectly engages in the 

collection of consumer debts due a creditor.” (2nd Am. Compl., ¶12.) 

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CONCLUSION

 For the foregoing reasons, Alorica Inc. respectfully requests that the Court enter an 

order dismissing Plaintiff’s Second Amended Complaint with prejudice and provide any 

other and further relief the Court deems just and proper. 

 Respectfully submitted, 

 ALORICA INC. 

 /s/ Matthew O. Stromquist 

 One of its Attorneys 

Anna-Katrina S. Christakis 

Matthew O. Stromquist 

Pilgrim Christakis LLP 

321 North Clark Street, 26th Floor 

Chicago, Illinois 60654 

Ph.: (312) 939-0920 

Fax: (312) 939-0983 

kchristakis@pilgrimchristakis.com 

mstromquist@pilgrimchristakis.com 

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CERTIFICATE OF SERVICE

 Matthew O. Stromquist, an attorney, certifies that on July 26, 2021, he electronically 

filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send 

notice of electronic filing to all attorneys of record. 

 

 /s/ Matthew O. Stromquist 

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