              Case: 18-12255     Date Filed: 11/09/2018   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-12255
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 1:17-cv-00378-WKW-WC

MICHAEL LAIT,

                                                                Plaintiff-Appellant,

                                         versus

MEDICAL DATA SYSTEMS, INC.,
d.b.a. Medical Revenue Services, Inc.,

                                                               Defendant-Appellee.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________

                                (November 9, 2018)

Before MARTIN, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM:

      Michael Lait appeals the district court’s order dismissing his complaint for

failure to state a claim under § 1692g of the Fair Debt Collection Practices Act

(FDCPA). That provision requires a debt collector to “send the consumer a written
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notice containing” certain information—most relevant here, “the name of the

creditor to whom the debt is owed . . . .” 15 U.S.C. § 1692g(a)(2). Lait, the

consumer in this case, contends that Medical Data Systems violated this

requirement by sending him a debt collection letter that failed to meaningfully

convey the name of his creditor, Medical Center Enterprise. Because Lait failed to

state a claim, we affirm the district court’s order dismissing his complaint with

prejudice.

                                               I.

       Lait’s purported debt arose from personal medical services rendered by

“Enterprise Medical Center” in 2015. The following year, Medical Data Systems

sent him a letter seeking to collect on that debt. The letter, which Lait attached as

an exhibit to his complaint, identifies Medical Data Systems, doing business as

Medical Revenue Service, as “a collection agency” tasked with collecting the

“account(s) indicated below.” After two intervening paragraphs, the letter lists

“Medical Center Enterprise” 1 next to a service date, a patient name, and an

outstanding balance of $412. The letter does not, however, expressly refer to

Medical Center Enterprise as Lait’s “creditor.”




1
 Lait does not allege that “Enterprise Medical Center” and “Medical Center Enterprise” are
different entities or that this different word order in the collection letter caused him any
confusion.
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      Lait sued Medical Data Systems under § 1692g contending that the firm

failed to “meaningfully convey the name of the creditor to whom the debt is

owed.” Medical Data Systems moved to dismiss, arguing that because its letter

contained the name of Lait’s creditor (Medical Center Enterprise) it met the

requirements of the FDCPA, even though it did not apply the descriptive term

“creditor.” The district court dismissed the complaint after applying the “least

sophisticated consumer” standard, which, in this context, asks whether the least

sophisticated consumer would likely understand the identity of the creditor after

reading the debt collector’s notice. The district court found it implausible that the

least sophisticated consumer, with Lait’s background knowledge, would fail to

grasp that Medical Center Enterprise was his creditor after reading the collection

letter as a whole.

                                          II.

      We review a district court’s order granting a motion to dismiss under Fed. R.

Civ. P. 12(b)(6) de novo. Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291,

1296–1297 (11th Cir. 2015). To that end, we must consider whether Lait’s

complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127

S. Ct. 1955 (2007)). We also note that because Lait attached the collection letter as


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an exhibit to his complaint, we review the letter as part of the complaint for Rule

12(b)(6) purposes. See Milikovic, 791 F.3d at 1296 n.4.

       Both the parties and the district court assumed that the “least sophisticated

consumer” standard applies here. This Circuit has not decided whether courts

should evaluate the validity of a debt collector’s notice under § 1692g with

reference to the least sophisticated consumer or simply assess the notice on its

own—that is, ascertain whether the notice contains the required information

without asking if the least sophisticated consumer would comprehend it. But we

need not resolve that question here because Lait’s complaint fails to state a claim

under the “least sophisticated consumer” standard and does not allege a violation

under any other standard.2




2
  That said, in deciding whether the standard should apply to other provisions of the FDCPA, we
have considered whether compliance depends on “the consumer’s relative sophistication.” Jeter
v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985); cf. LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1201 (11th Cir. 2010) (holding that the “least sophisticated consumer”
standard applies to § 1692f because compliance depends, in part, on “the debtor’s reaction” to
the debt collector’s actions). In an unpublished opinion, a panel of this Court observed “no
reason to disagree” with the other circuits that have applied the “least sophisticated consumer”
standard to § 1692g. Leonard v. Zwicker & Assocs., P.C., 713 F. App’x 879, 882 n.2 (11th Cir.
2017). Other circuits have applied the standard to § 1692g because, otherwise, a debt collector
might undermine the statute’s purpose by obfuscating the required information. See, e.g., Russell
v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir. 1996) (“This least-sophisticated-consumer standard
best effectuates the Act’s purpose . . . .”). Without dismissing that concern, we note that
consumers may also be able to address that type of mischief through claims under 15 U.S.C. §
1692e, which prohibits debt collectors from using “any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” See, e.g., Clomon v.
Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993) (courts “have found collection notices misleading
where they employ formats or typefaces which tend to obscure important information that
appears in the notice” (citation omitted)).
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                                           III.

      On appeal, Lait claims that the district court erred for two reasons. First,

Lait argues that it is plausible that Medical Data Systems misidentified his creditor.

The problem for Lait is that his complaint did not actually allege a

misidentification. See Spanish Broad. Sys. of Fla., Inc. v. Clear Channel

Communications, Inc., 376 F.3d 1065, 1077 (11th Cir. 2004) (courts “must not

assume plaintiffs can prove facts not alleged” (citation and internal punctuation

omitted)). To be sure, as Lait himself argues, “it is always conceivable that a debt

collector has misidentified the creditor . . . .” But the fact that a scenario is

conceivable does not mean that it occurred, or, more crucial here, that a party

alleged that it occurred. Lait thus needed to allege facts establishing that Medical

Data Systems misidentified his creditor in order to nudge his claim “across the line

from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. 1955. But

he did not do so. Instead, he alleged that Medical Data Systems failed to

effectively convey the name of the creditor. So his complaint disputed the

effectiveness of the debt collection letter, not the accuracy of it. Lait’s argument

thus confuses the relevant inquiry. That may seem a narrow difference, but it is an

important one; on a motion to dismiss, a court evaluates the plausibility of a claim

based on the allegations in the complaint, Iqbal, 556 U.S. at 678, 129 S. Ct. 1937,

not the plausibility of a scenario that, if alleged, might have supported the claim.


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With Lait not having made a claim that Medical Data Systems misidentified his

creditor, he cannot survive a motion to dismiss on that basis.

       Second, Lait simply disagrees with the district court’s conclusion that even

the least sophisticated consumer would understand his creditor’s identity. 3 We

agree with the district court. Lait did not receive this letter in a vacuum; rather, he

acknowledges that Medical Data Systems sent it to collect on a purported debt he

incurred during treatment at a hospital called “Enterprise Medical Center.” Armed

with that knowledge, the least sophisticated consumer could be expected to

connect the dots on a collection letter that lists the name “Medical Center

Enterprise” next to an outstanding balance. A consumer who had been a patient at

a hospital would surely understand the hospital to be the creditor when its name

was listed next to the amount of the debt. As we have said, “‘The least

sophisticated consumer’ can be presumed to possess a rudimentary amount of

information about the world and a willingness to read a collection notice with some

care.” LeBlanc, 601 F.3d at 1194 (quoting Clomon, 988 F.2d at 1319).

       Moreover, the only other entity referenced in the letter is Medical Data

Systems, which explicitly identified itself as the collection agency. Given that “the




3
 Under the “least sophisticated consumer” standard, as in other cases, the Court must first decide
whether the complaint states a plausible claim, even though the jury eventually is tasked with the
ultimate question of whether a collection letter would deceive the least sophisticated consumer.
See Milikovic, 791 F.3d at 1307–08 n.11.
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debt collector is obviously the agent of the creditor,” Caceres v. McCalla Raymer,

LLC, 755 F.3d 1299, 1304 (11th Cir. 2014), as opposed to the creditor itself, there

is no argument to be had that the least sophisticated consumer would think his

creditor was anyone other than the hospital listed, Medical Center Enterprise. For

these reasons, Lait has failed to state a claim under § 1692g.

      AFFIRMED.




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