Brown v. Transurban USA, Inc.

• Citation: 144 F.Supp.3d 809
• Decision Date: 02 November 2015
• Docket Number: No. 1:15cv494(JCC/MSN).,1:15cv494(JCC/MSN).
• Parties: Jo–Ann BROWN, et al., Plaintiffs, v. TRANSURBAN USA, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

144 F.Supp.3d 809

Jo–Ann BROWN, et al., Plaintiffs,

v.TRANSURBAN USA, INC., et al., Defendants.

No. 1:15cv494(JCC/MSN).

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

Signed Nov. 2, 2015.

Bernard Joseph Dimuro, Stephen Lybrook Neal, Jr., Dimuro Ginsberg PC, Alexandria, VA, for Plaintiffs.

Nathaniel Thomas Connally, III, Jon Myer Talotta, Hogan Lovells U.S. LLP, McLean, VA, Turner A. Broughton, Brendan David O'Toole, Jonathan Tyler Lucier, Williams Mullen, Richmond, VA, Eric Christopher Rusnak, Amy Jo Eldridge, K & L Gates, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES C. CACHERIS

, District Judge.

This case involves Virginia's hotly contested “Public–Private” toll lane scheme. Plaintiffs in this case seek class action status, and are all users of the High–Occupancy Toll Roads operated by Defendants in Northern Virginia. This matter is before the Court on three motions to dismiss Plaintiffs' Amended Complaint, filed by (1) Defendants Transurban (USA), Inc., Transurban (USA) Operations, Inc., Capital Beltway Express, LLC, 95 Express Lanes, LLC (the “Transurban” Defendants) [Dkt. 41]; (2) Defendant Faneuil, Inc. (“Faneuil”) [Dkt. 44]; and (3) Defendant Law Enforcements Systems, LLC (“LES”) [Dkt. 49]. For the following reasons, the Court grants Transurban, Faneuil, and LES's motions with respect to Plaintiffs' substantive due process and unjust enrichment claims; grants Faneuil and LES's motions with respect to Plaintiffs' Maryland Consumer Protection Act and Virginia Consumer Protection Act claims; and denies Transurban, Faneuil, and LES's motions with respect to Plaintiffs' Eighth Amendment, procedural due process, Fair Debt Collection Practices Act, and tortious interference with contract claims.

I. Background

At the motion to dismiss stage, the Court must read the amended complaint as a whole, construe the amended complaint in a light most favorable to the plaintiff, and accept the facts alleged in the amended complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

. Thus, the following facts taken from the amended complaint are only accepted as true for purposes of the three motions now before the Court.

Pursuant to the Public–Private Transportation Act (“PPTA”),¹ passed by the Virginia General Assembly in 1995, Transurban contracted with the Commonwealth of Virginia to maintain and operate high-occupancy toll lanes (“HOT lanes”) on the Capital Beltway, Interstate 495 (“I–495”), which opened on November 17, 2012, and on Interstate 95 (“I–95”) and Interstate 395 (“I–395”), which opened on December 29, 2014. (Am. Compl. [Dkt. 36] ¶¶ 24–27.) The HOT lanes on I–495 are colloquially known as the “495 Express Lanes” and the HOT lanes on I–95 and I–395 are colloquially known as the “95 Express Lanes.” (Id. at ¶ 25.) Both the 495 Express Lanes and the 95 Express Lanes collect HOT lane tolls through the use of an E–ZPass transponder mounted on the inside of the vehicle's windshield, which is linked to the driver's bank account or credit card; no cash toll booths are offered and instead, an E–ZPass transponder is required. (Id. at ¶¶ 26–27.) HOT lane prices on the 495 Express Lanes and the 95 Express Lanes vary dynamically “according to real-time traffic conditions: the more drivers using the HOT Lanes, the more expensive the toll, and vise-versa.” (Id. at ¶ 26.) When an E–ZPass account is out of money to pay tolls, the bank account or credit card is automatically charged to reload the E–ZPass account. (Id. at ¶ 27.) An E–ZPass account can become inadequately funded if the linked credit card expires or is otherwise cancelled. (Id. at ¶ 59.)

A. Virginia's HOT Lanes Law

Virginia law governs the creation of HOT lanes (hereinafter collectively referred to as the “HOT lanes law”). (Am. Compl. ¶ 42 (citing Va.Code Ann. §§ 33.2–502

, 503).) The operator of a motor vehicle “shall make arrangements with the HOT lanes operator for payment of the required toll prior to entering such HOT lanes.” Va.Code Ann. § 33.2–503. Failure to make such arrangements, i.e., failure to pay the required toll, violates Virginia law and such a violation is subject to civil penalties, including payment of the unpaid toll, fines, fees, and costs. Id. Enforcement of this statutory provision is accomplished by issuance of a summons for a civil violation,² which can occur one of two ways.

First, if a law-enforcement officer observes an HOT lane violation, the officer may execute a summons for the violation. Va.Code Ann. § 33.2–503(1)

. Second, a summons may be executed if a violation is evidenced by information obtained from a photo-enforcement system, which the HOT lane operator is required to install and operate at all toll-collection locations. Id. §§ 33.2–503(2)(a)–(b). “A certificate, sworn to or affirmed by a technician employed or authorized by the HOT lanes operator, or a facsimile of such certificate, based on inspection of photographs, microphotographs, videotapes, or other recorded images produced by a photo-enforcement system, shall be prima facie evidence of the facts contained therein.” Id. § 33.2–503(2)(b)

. This second enforcement mechanism, whereby a summons is issued based on evidence obtained from a photo-enforcement system, is the enforcement mechanism primarily at issue in this litigation.

The summons shall provide the registered owner of the vehicle with “reasonable notice” that the vehicle was used in violation of this statute, and provide “notice of the time and place of the hearing and notice of the civil penalty and costs for such offense.” Va.Code Ann. § 33.2–503(2)(d)

. The HOT lanes operator may impose an administrative fee in addition to the unpaid toll, “so as to recover the expenses of collecting the unpaid toll, [but the] administrative fee shall be reasonably related to the actual cost of collecting the unpaid toll.” Id. § 33.2–503(3)(a). The summons shall contain an option for the driver or registered owner of the vehicle to prepay the unpaid toll and all penalties, administrative fees, and costs. Id. § 33.2–503(2)(c). If the operator of the vehicle pays the administrative fee and unpaid tolls within 30 days of notification, the administrative fee shall not exceed $25. Id. § 33.2–503(3)(a). Otherwise, the administrative fee shall not exceed $100. Id. If the operator of the vehicle contests the violation but a court of competent jurisdiction³ finds that the operator of the vehicle did violate the statute, the court shall impose a civil penalty payable to the HOT lanes operator as follows: “for a first time offense, $50; for a second offense, $250; for a third offense within a period of two years of the second offense, $500; and for a fourth and subsequent offense within a period of three years of the second offense, $1,000, together with, in each case, the unpaid toll, all accrued administrative fees imposed by the HOT lanes operator ... and applicable court costs.” Id. § 33.2–503(3)(b). Failure to pay the required penalties, fees, and costs can result in suspension of the operator's vehicle registration and license. Id. § 33.2–503(3)(c).

B. Defendants' Alleged Enforcement Procedure

As the HOT lanes operator, Transurban enforces civil violations⁴ of the HOT lanes law and attempts to collect payment for unpaid tolls by providing notice to the registered operator of the motor vehicle. (Am. Compl. ¶¶ 45, 59.) Once an alleged “violation” occurs, the operator of the motor vehicle does not immediately receive notice of the infraction. (Id. at ¶ ¶ 57–58.) Instead, an operator of a motor vehicle in violation of the HOT lanes law “may not find out for months (or even over a year)” until Transurban mails the notice or summons. (Id. at ¶ 58.) “If a driver somehow ‘knows' that she has committed a toll violation, within 5 days of that violation, she can pay the toll and a[n administrative] fee of $1.50 per trip through the ‘Missed a Toll’ process on Defendant Transurban's website.” (Id. at ¶ 60.) Otherwise, the unknowing violator will not become aware of the violation until Transurban issues a notice through the mail. (Id. )

Specifically, Transurban will first mail an “unpaid toll notice” to the registered owner of the motor vehicle requesting payment of the unpaid tolls, plus a $12.50 administrative fee that is assessed for each violation (hereinafter “the first notice”). (Am. Compl. ¶ 60.) The first notice requests payment or notice that the driver disputes the violation within 30 days. (Id. ) If the toll remains unpaid after 30 days, Transurban issues a “final toll invoice” that requests payment of the unpaid tolls, plus a $25 administrative fee for each violation (hereinafter “the final notice”). (Id. at ¶ 61; see also Transurban's Mem. [Dkt. 42] Ex. C.) The final notice requests payment within 30 days and states that Transurban will refer any failure to pay to its debt collection agency, LES. (Id. ) Transurban takes “no efforts to ensure or confirm that the invoices they mail actually reach their intended recipients ... even when these invoices are returned as undeliverable.” (Am. Compl. ¶ 71.) If Transurban refers the account for debt collection, LES will issue a collection notice to the driver that requests payment of the unpaid tolls, plus a $100 administrative fee for each violation (“the collection notice”). (Id. at ¶¶ 74–84.) “LES regularly tells consumers in correspondence that ‘this is an attempt to collect a debt and any information obtained will be used for that purpose’ and/or that the communication is from a debt collector.” (Id. at ¶ 75.) LES attempts to make debt validation disclosures in the collection notice pursuant to the Fair Debt Collection Practices Act (“FDCPA”), but “does not comply with the FDCPA in several respects.” (Id. at ¶¶ 77–84 (alleging that LES fails to identify the creditor, Transurban, fails to include any of the statutory disclosures, and falsely represents the character and amount of the debt).)

If the toll is still unpaid, Transurban...