Brown v. R & B Corp. of Va.

• Decision Date: 28 July 2017
• Docket Number: Civil No.: 2:17cv107
• Citation: 267 F.Supp.3d 691
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Tia BROWN, Plaintiff, v. R & B CORPORATION OF VIRGINIA, d/b/a Credit Control Corporation, Defendant.

267 F.Supp.3d 691

Tia BROWN, Plaintiff,

v.R & B CORPORATION OF VIRGINIA, d/b/a Credit Control Corporation, Defendant.

Civil No.: 2:17cv107

United States District Court, E.D. Virginia, Norfolk Division.

Filed July 28, 2017

Aryeh E. Stein, for Plaintiff.

Mark R. Colombell, for Defendants.

OPINION AND ORDER

Mark S. Davis, UNITED STATES DISTRICT JUDGE

This matter is before the Court on a motion to dismiss filed by R & B Corporation of Virginia, doing business as Credit Control Corporation ("Defendant"), pursuant to Federal Rule of Civil Procedure 12(b)(1).¹ ECF No. 5. For the reasons set forth below, Defendant's motion to dismiss is DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

On February 20, 2017, Plaintiff Tia Brown ("Plaintiff") filed a single-count complaint, alleging that Defendant had violated multiple provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. ² Compl. ¶ 3, ECF No. 1. According to Plaintiff, at some point better known to Defendant, Defendant began to collect "alleged" consumer debt that Plaintiff originally owed to Cox Communications. Id. ¶ 7–8. Defendant reported the alleged debt to credit reporting agencies, which was then reflected on Plaintiff's credit report. Id. ¶ 10. Plaintiff alleges that this communication was subject to the reporting requirements of the FDCPA, id. ¶ 9, and explains that:

11. Plaintiff disputed the Alleged Debt directly with the Defendant with a dispute letter on November 3, 2016.

12. Plaintiff examined her credit report again on January 22, 2017, and found that Defendant had re-reported the Alleged Debt on Plaintiff's credit report in January of 2017. When Defendant re-reported the Alleged Debt after it had notice of Plaintiff's dispute, it did not list the account as "disputed by consumer" despite being required to do so by the FDCPA.

13. As a result of Defendant's improper debt collection practices described above, Plaintiff has been damaged.

Id. ¶ 11–13. Based upon these facts and because "Defendant's debt collection efforts attempted and/or directed towards Plaintiff violate various provisions of the FDCPA, including but not limited to 15 U.S.C. §§ 1692e, 1692e(2), 1692e(8), 16926(10), and 1692f," Plaintiff alleges that she "has been damaged and is entitled to damages in accordance with the FDCPA." Id. ¶ 15–16.

On March 21, 2017, Defendant filed an answer to the complaint, ECF No. 4, filed a motion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b) (1), ECF No. 5, and filed a memorandum in support of the motion to dismiss, ECF No. 6. Relying on the United States Supreme Court's decision in Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), Defendant requests that this Court dismiss Plaintiff's complaint because the Court does not have subject-matter jurisdiction due to Plaintiff's lack of standing. Def.'s Opening Br. 1, ECF No. 6. Plaintiff failed to file a timely response.³

On April 5, 2017, Defendant filed a reply to the motion to dismiss, arguing that as "[t]he party invoking federal jurisdiction [Plaintiff] bears the burden of establishing standing," and by Plaintiff's failure "to respond to the Motion to Dismiss, she has failed to meet her burden to establish standing." Def.'s Reply Br. 2, ECF No. 8. Defendant asks the Court to dismiss Plaintiff's complaint with prejudice for lack of subject-matter jurisdiction. Id. On April 7, 2017, Plaintiff filed a motion for extension of time to file a response to Defendant's motion to dismiss. ECF No. 9. On April 10, 2017, Defendant filed a response in opposition to the motion for extension of time, ECF No. 10, and on May 4, 2017, the Court denied Plaintiff's motion for extension of time for the reasons stated in Defendant's response to the motion for extension of time, ECF No. 11. Thus, having been fully briefed, Defendant's motion to dismiss is ripe for review.

II. STANDARD OF REVIEW

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Pursuant to Article III of the Constitution, federal courts have subject-matter jurisdiction over "Cases" and "Controversies." Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). One component of the case or controversy limitation on jurisdiction is standing, which requires the plaintiff to " ‘allege [ ] such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction." Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ) (emphasis in original). "The standing requirement stems from Article III, ... [and] is a threshold jurisdictional question" that ensures a lawsuit is "appropriate for the exercise of the [federal] courts' judicial powers." Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 343 (4th Cir. 2017) (quoting Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001) ) (alteration in original). Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant challenging standing may move to dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When such a motion is filed, "[t]he plaintiff has the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

In order to demonstrate standing, at the "irreducible constitutional minimum," ⁴ a plaintiff must show: (1) an injury-in fact, (2) a causal connection between the injury and the alleged misconduct, and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130. To demonstrate an injury-in-fact, a plaintiff must show "an invasion of a legally protected interest" that is (1) "actual or imminent," (2) "particularized" to the plaintiff, and (3) "concrete." Spokeo, Inc., v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ).

The "actual or imminent" component of the injury-in-fact element of standing requires that the invasion of a plaintiff's legally protected interest (i.e. a violation of a plaintiff's substantive rights) has either already occurred or is "certainly impending." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) ; see also Bock v. Pressler & Pressler, LLP, No. CV11-7593KMSCM, 254 F.Supp.3d 724, 731–32, 2017 WL 2304643, at *5 (D.N.J. May 25, 2017) (explaining that substantive rights are the basis of standing). The violation of plaintiff's substantive rights must not be "conjectural or hypothetical," Lujan, 504 U.S. at 560, 112 S.Ct. 2130, because mere "[a] negations of possible future injury are not sufficient," Clapper, 133 S.Ct. at 1147 (internal quotation marks omitted) (emphasis and alteration in original). Next, to demonstrate the particularization component of the injury-in-fact element of standing, the plaintiff must show that the violation of plaintiff's rights "affect[ed] the plaintiff in a personal and individual way." Spokeo, 136 S.Ct. at 1548 (internal quotations omitted).

Finally, to be "concrete," and satisfy the final component of the injury-in-fact element of standing, the violation of plaintiff's substantive rights "must be ‘de facto’ ; that is, it must actually exist." Id. ⁵ (citing Black's Law Dictionary 479 (9th ed. 2009)). A concrete injury is "real," not "abstract." Id. (citing Webster's Third New International Dictionary 472 (1971)). However, a concrete injury, while "real," may nevertheless be "intangible." See generally Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (free exercise). An intangible injury (1) may result in actual harm that produces an adverse effect on the plaintiff, see Ben–Davies v. Blibaum & Assocs., P.A., No. 16-2188, 695 Fed.Appx. 674, 676, 2017 WL 2378920, at *2 (4th Cir. June 1, 2017) (finding that the plaintiff had alleged "actually existing intangible harms" by alleging that she suffered ‘emotional distress, anger, and frustration’), (2) may carry a "risk of real harm" to a substantive right, see Spokeo, 136 S.Ct. at 1549 (explaining that an injury with a "risk of real harm" may be sufficiently concrete in situations when harm may be "difficult to prove or measure," such as actions for libel or slander per se ), or (3) may present no real likelihood of an adverse effect, see Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 346 (4th Cir. 2017) (holding that because a violation of a statute "had no practical effect" there was no concrete injury). When a plaintiff alleges an actual intangible injury such as emotional distress, a plaintiff has sufficiently alleged a concrete intangible injury. Ben–Davies, 695 Fed.Appx. at 675–77, 2017 WL 2378920, at *2. However, when a plaintiff alleges an intangible injury without any real likelihood of an "adverse effect," such as the examples given by the Supreme Court in Spokeo of reporting an incorrect zip code "without anything more," or a credit reporting agency failing to provide a required notice to a consumer when the consumer information itself was "entirely accurate," the plaintiff has not sufficiently alleged a concrete injury for standing. Spokeo, 136 S.Ct. at 1549 (observing that "a bare procedural violation, divorced from any concrete harm" is not sufficient for standing).

In between these two possibilities (actual intangible harm and no likelihood of harm) are situations in which an intangible injury, such as the violation of a statutory right, causes no actual harm but nevertheless carries an inherent "risk of real harm."⁶ Courts employ two methods to determine whether an intangible injury with a "risk of real harm" is sufficiently concrete: (1) historical analysis and (2) Congressional...