Cappetta v. Gc Services Ltd. Partnership

Decision Date04 September 2009
Docket NumberAction No. 3:08-CV-288.
Citation654 F.Supp.2d 453
PartiesPamela G. CAPPETTA, Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, Defendant.
CourtU.S. District Court — Eastern District of Virginia

Leonard Anthony Bennett, Consumer Litigation Assoc. PC., Newport News, VA, Jason Meyer Krumbein, Krumbein Consumer

Legal Services Inc., Richmond, VA, Matthew James Erausquin, Consumer Litigation Associates PC, Fairfax, VA, Richard John Rubin, Santa Fe, NM, for Plaintiff.

Brian Brooks, O'Melveny & Myers LLP, Washington, DC, Charles Michael Sims, John MacDonald Robb, III, LeClair Ryan PC, Richmond, VA, David Matthew Schultz, Todd Stelter, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant.


JAMES R. SPENCER, Chief Judge.

THIS MATTER is before the Court on Defendant's Motion for Judgment on the Pleadings (Docket No. 161), filed July 2, 2009, and Plaintiff's oral motion for voluntary dismissal with prejudice as to Counts II and IV, offered at the hearing of this matter September 1, 2009. For the reasons that follow, the Court will GRANT Plaintiff's Motion, DISMISS WITH PREJUDICE Counts II and IV, and DENY the Motion for Judgment on the Pleadings as to Counts I and III.


Plaintiff is a natural person who resides in the Commonwealth of Virginia. Defendant is a limited partnership with its primary headquarters in Texas doing business in the Commonwealth through its registered offices in Glen Allen, Virginia.

Plaintiff filed her Complaint May 9, 2008, alleging Defendant violated the Fair Debt Collection Practices Act. According to Plaintiff, on May 21, 2007, a representative of Defendant called her place of business regarding a $10,444.59 debt owed to American Express by her estranged husband, Robert Cappetta ("Mr. Cappetta"), by virtue of a credit card account ("Account") he had opened. Defendant, having failed to persuade Mr. Cappetta to pay the bill, told Plaintiff through its representative that she needed to pay the debt within seven days because Plaintiff's social security number was on the application for the credit card and Defendant possessed the Account's application with her signature.

Apparently, this was not true. Defendant never possessed the application, and Plaintiff's social security number never appeared thereon. Unbeknownst to Plaintiff, Mr. Cappetta had applied for the Account utilizing a P.O. Box he maintained although he had previously claimed to close it. Plaintiff alleges Defendant had obtained her personal information used during the May phone call through a "skip trace" consumer report ("Skip Trace"). Utilizing the information contained in the Skip Trace, Defendant obtained a full credit report ("Credit Report") from Experian Information Solutions, Inc. ("Experian"). In order to obtain the Credit Report, Defendant represented to Experian that it was collecting on an account resulting from Plaintiff's credit transactions.

Responding to the representative's claims during the call, Plaintiff requested the documentation demonstrating she was obligated to pay on the Account in order to review it with her attorney. Defendant's representative stated that Plaintiff's attorney would likely advise her not to pay the Account but would fail to explain to Plaintiff the severe negative implications of failing to pay off the Account. According to this representative, Plaintiff could only avoid receiving derogatory information on her heretofore excellent credit report by paying the full amount demanded within seven days.

In addition to utilizing information from the Skip Trace and Credit Report, Defendant's representative also stated, in her conversation with Plaintiff, that she had faced a similar circumstance in the past and had determined the best course was to pay the charges in order to have closure. At Defendant's urging, even though she had not applied for, used, and had knowledge of the Account prior to Defendant's call, Plaintiff paid the debt demanded during the May 21, 2007 phone call. She did so, not only because of Defendant's various falsehoods or misrepresentations (including Defendant's representative's fabricated identity, the claim that she possessed Plaintiff's signature and social security number on the Account application, and the story about her analogous situation in the past), but also because she was then in the process of refinancing her home and depended upon her favorable credit score to successfully complete the process. Plaintiff argues the following representations were also false: (1) the effect the threatened collection notation would have on Plaintiff's credit score, (2) the sworn certification to Experian stating a credit relationship existed between American Express and Plaintiff, and (3) the seven-day time frame for payment of the Account.

Despite Plaintiff's request, Defendant never furnished the documentation that supposedly demonstrated Plaintiff's obligation on the Account, although its representative had promised to do so. After consulting with several individuals, Plaintiff called Defendant and again asked for the documentation of her obligation on the Account. Through another representative, Defendant refused to provide the documentation and stated Plaintiff had to contact American Express directly. Defendant further suggested that doing so would likely be unavailing because American Express would only respond to a subpoena. Defendant's representative stated the only documentation it would send Plaintiff is a letter stating that the payment had been received.

Thereafter, Plaintiff contacted American Express directly. Initially, American Express representatives would not discuss the account with Plaintiff because she was not listed on the account, but, eventually, an American Express official informed Plaintiff that the Account did not list her as an obligor and that American Express did not have her social security number. In addition, American Express stated that the Account only listed Plaintiff as an "authorized user" and, accordingly, it had at no time provided Defendant with her social security number.

Based on these facts, Plaintiff, on or about August 8, 2007, wrote Defendant and demanded a refund of the money she had paid. Defendant has refused to return it.


A court reviews a motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, under the same standard as a Rule 12(b)(6) motion to dismiss. Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir.2002); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). When considering the motion, the court views the facts presented in the pleadings in the light most favorable to the nonmoving party. Edwards v. City of Goldsboro, 178 F.3d 231, 248 (4th Cir.1999).

Under Rule 12(b)(6), a motion to dismiss for failure to state a claim for which relief can be granted challenges the legal sufficiency of a claim, not the facts supporting it. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.2007). Thus, in ruling on a Rule 12(b)(6) motion, a court must regard as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Conversely, the court does not have to accept legal conclusions couched as factual allegations, Twombly, 550 U.S. at 555, 127 S.Ct. 1955, or "unwarranted inferences, unreasonable conclusions, or arguments," E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.2000).

While legal conclusions can provide the framework for a complaint, all claims must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Since a complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests," the plaintiff must allege facts that show a plausible, not merely speculative, claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted); see Fed.R.Civ.P. 8(a)(2). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. While Rule 8(a)(2) requires a showing, not simply a blanket assertion of "entitlement to relief," the plaintiff is not required to show that it is likely to obtain relief. Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955; Iqbal, 129 S.Ct. at 1949. If the complaint alleges—directly or indirectly— each of the elements of "some viable legal theory," the plaintiff should be given the opportunity to prove that claim. Twombly, 550, U.S. at 563 n. 8, 127 S.Ct. 1955.


Because Plaintiff has voluntarily dismissed her other theories of recovery, the Court will only address Counts I and III of the Second Amended Complaint, which allege violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681b(f) (2006) ("FCRA"), and Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (2006) ("FDCPA"), respectively.

A. Fair Credit Reporting Act1

The FCRA allows access to a consumer's credit report only under specific circumstances where a permissible purpose exists. 15 U.S.C. § 1681b(a) (2006) ("[A]ny consumer reporting agency may furnish a consumer report under the following circumstances and no other"). As for "permissible purposes," Congress declared a credit reporting agency may provide a consumer's credit report:

To a person the credit reporting agency has reason to believe "intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer;" or "otherwise has a legitimate business need for the information in connection...

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