                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   November 25, 2013
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT


 CASSANDRA LITTLE,

          Plaintiff - Appellant,
                                                         No. 12-3266
 v.                                          (D.C. No. 2:12-CV-02205-JTM-GLR)
                                                           (D. Kan.)
 PORTFOLIO RECOVERY
 ASSOCIATES, LLC,

          Defendant - Appellee.



                              ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      Plaintiff-Appellant Cassandra Little appeals from the district court’s

judgment dismissing her Fair Debt Collections Practices Act (FDCPA) complaint

against Defendant-Appellee Portfolio Recovery Associates, LLC (“PRA”). The

district court dismissed the complaint and denied leave to amend. Little v.

Portfolio Recovery Assocs, LLC, No. 12–2205–JTM, 2012 WL 3889107 (D. Kan.

Sept. 7, 2012). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm in



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
part and reverse in part.

                                    Background

      Ms. Little filed her complaint on April 9, 2012, alleging that PRA engaged

in debt collection practices that violated 15 U.S.C. §§ 1692d(5) and 1692e(11).

Specifically, Ms. Little alleged that PRA called her by telephone and engaged her

in conversation with the intent to annoy, abuse, and harass her. Aplt. App. 7-8.

Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and in

response, Ms. Little moved to file an amended complaint. She attached a

proposed amended complaint to her motion.

      The amended complaint added details to Ms. Little’s § 1692d(5) claim,

Aplt. Br. 10-12, omitted her § 1692e(11) claim, and added allegations under

§§ 1692e(2) and (5). Aplt. Br. 10-13; Aplt. Appx. 12-15. In rejecting the

proposed amended complaint, the district court stated that it was identical to the

original complaint except for the added § 1692e(5) claim, and that it failed to

satisfy the federal pleading requirements. Little, 2012 WL 3889107, at *1. The

court noted that it dismissed another complaint filed by Ms. Little’s attorney on

behalf of a different client in Webb v. Convergent Outsourcing, Inc.,

11-2606-JTM, 2012 WL 162394 (D. Kan. Jan. 19, 2012), a non-controlling

district court decision.



                                    Discussion

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      We review a denial of leave to amend a complaint for abuse of discretion.

Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010), and a dismissal

under Rule 12(b)(6) de novo, Smith v. United States, 561 F.3d 1090, 1098 (10th

Cir. 2009). Leave may be denied when the amendment would be futile.

Wilkerson, 606 F.3d at 1267. A proposed amendment is futile if the amended

complaint would be subject to dismissal. Jefferson Cnty. Sch. Dist. No. R-1 v.

Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). To avoid

dismissal, the complaint must present “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“Plausibility” refers to the scope of the complaint; it cannot be so general as to

encompass a wide swath of innocent conduct. Robbins v. Oklahoma, 519 F.3d

1242, 1247 (10th Cir. 2008). In assessing a motion to dismiss for failure to state

a claim, we accept all factual allegations in the complaint as true and view them

in the light most favorable to the plaintiff. Smith, 561 F.3d at 1098. Conclusory

statements, threadbare recitals of elements, and legal conclusions, however, are

not entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A complaint must provide more than “naked assertion[s] devoid of

further factual enhancement.” Id. (internal quotation marks omitted).

A. Section 1692e(5) Claim

      15 U.S.C. § 1692e(5) prohibits debt collectors from threatening “to take

any action that cannot legally be taken or that is not intended to be taken” in

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connection with debt collection. In her proposed amended complaint, Ms. Little

alleged:

             Defendant’s agent falsely stated that if the debt was not
             paid ‘it will go further.’ When asked by Plaintiff what that
             meant, Defendant’s collector falsely stated that ‘it will go
             to litigation’ and ‘we will take you to court’ in violation of
             [15 U.S.C. § 1692e(5)].

Aplt. App. 15. We agree with the district court that Ms. Little has failed to state a

plausible claim under § 1692e(5). She has not alleged any facts supporting an

inference that PRA’s threats to litigate were legally proscribed or not made in

good faith. Absent such support, Ms. Little’s allegation that the statements were

made “falsely” is conclusory. The district court was therefore within its

discretion to deny Ms. Little leave to amend her complaint as to this claim

because amendment would have been futile.

B. Other Claims

      The district court, however, did not analyze Ms. Little’s claims under

§§ 1692d(5) or 1692e(2). It noted that it dismissed another complaint in a

different case, but did not engage in any substantive comparison of the

complaints. Little, 2012 WL 3889107, at *1; see Webb, 2012 WL 162394, at *2.

Of course, the amended complaint must be evaluated on its own terms. The

district court also incorrectly stated that Ms. Little’s amended complaint was

identical to her original complaint except for the paragraph introducing the

§ 1692e(5) claim. The amended complaint made at least three other changes: it

                                         -4-
specified the type of account Ms. Little held and owed debt on, Aplee. Supp. App.

12 ¶ 17; it alleged that the harassing behavior took place between February and

April, 2012, id. at 12 ¶ 25, and that PRA’s employees continued to call (multiple

times per day) even after Ms. Little advised them she could not pay, id. at 13 ¶¶

32, 33.

       Given these omissions, we think the better course is to return the case to

the district court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976). On remand,

the district court may obtain supplemental briefing and consider the

characteristics of Ms. Little’s § 1692d(5) claim that differ from the complaint in

Webb, and address the § 1692e(2) claim in paragraph 35 of the proposed amended

complaint. See Aplt. App. 15. We therefore affirm the judgment to the extent of

its rejection of the § 1692e(5) claim, and reverse as to its rejection of the others at

this stage.

       AFFIRMED in part, REVERSED in part, and REMANDED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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