Kostik v. Ars Nat'l Servs., Inc., CIVIL ACTION NO. 3:14-CV-2466

• Decision Date: 05 January 2016
• Docket Number: CIVIL ACTION NO. 3:14-CV-2466
• Parties: LISA KOSTIK, Plaintiff v. ARS NATIONAL SERVICES, INC., Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

LISA KOSTIK, Plaintiff v. ARS NATIONAL SERVICES, INC., Defendant

CIVIL ACTION NO. 3:14-CV-2466

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

January 5, 2016

(Judge Nealon)

MEMORANDUM

Presently before the Court is Defendant's "Motion to Certify For Interlocutory Review," which seeks an order certifying this Court's July 22, 2015 Order for interlocutory review pursuant to 28 U.S.C. § 1292(b). (Doc. 13). The motion has been fully briefed, and is ripe for disposition. For the reasons set forth below, Defendant's motion will be denied.

I. BACKGROUND

On December 1, 2014, Plaintiff, Lisa Kostik, sued Defendant, ARS National Services, Inc., under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). (Doc. 1). Plaintiff alleges that Defendant violated section 1692f(8) of the FDCPA when it disclosed a barcode, which when electronically scanned would reveal Plaintiff's account number, on a debt collection envelope. (Id.). On March 31, 2015, Defendant filed a motion for judgment on the pleadings. (Doc. 8). Defendant argued that Plaintiff's claim should be dismissed because a debt collector's disclosure of a barcode embedded with the plaintiff's account number could not constitute a violation under section 1692f(8) of the FDCPA. (Doc. 9, pp. 12-24). The Court disagreed and denied Defendant's motion on July 22, 2015. (Docs. 11, 12). Defendant now moves to certify the July 22, 2015 Order for interlocutory review pursuant to 28 U.S.C. § 1292(b). (Docs. 13, 14).

II. DISCUSSION

Pursuant to section 1292(b):

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order,

28 U.S.C. § 1292(b). Thus, for a district court to certify a question of law to the Court of Appeals, the case must (1) involve a controlling question of law; (2) as to which there is substantial ground for a difference of opinion; and (3) an immediateappeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b); Tristani ex rel. Karnes v. Richman, 652 F.3d 360, 365 (3d Cir. 2011); Sakalas v. Wilkes-Barre Hosp. Co., 2012 U.S. Dist. LEXIS 146723, at *2-3 (M.D. Pa. 2012) (Mariani, J.) (citations omitted). "The decision to certify for interlocutory appeal rests with the district court, and the burden to demonstrate that certification is appropriate lies with the moving party." Weitzner v. Sanofi Pasteur, Inc., 2014 U.S. Dist. LEXIS 62039, at *3-4 (M.D. Pa. 2014) (Caputo, J.) (citing Orson v. Miramax Film Corp., 867 F. Supp. 319, 320 (E.D. Pa. 1994)). "Further, a court should exercise its discretion mindful of the strong policy against piecemeal appeals." Eisenberger v. Chesapeake Appalachia, LLC, 2010 U.S. Dist. LEXIS 44017, at *11 (M.D. Pa. 2010) (Caputo, J.) (citing Link v. Mercedes-Benz of N. Am., 550 F.2d 860, 863 (3d Cir. 1977), cert. denied, 431 U.S. 933 (1977)). "Moreover, Section 1292(b) certification is appropriate only in exceptional circumstances." Weitzner, 2014 U.S. Dist. LEXIS 62039, at *5 (citing U.S. v. Nixon, 418 U.S. 683, 690 (1974)); Ford v. Lehigh Rest. Grp., Inc., 2014 U.S. Dist. LEXIS 108041, at *4 (M.D. Pa. 2014) (Munley, J.) ("The Third Circuit has further explained that 'Congress intended that section 1292(b) should be sparingly applied . . . .'") (quoting Milbert v. Bison Lab., Inc., 260 F.2d 431, 433 (3d Cir. 1958); and citing Sporck v. Peil, 759 F.2d 312, 315 n.4 (3d Cir. 1985)).

Additionally, even if the movant has made a strong showing "under all three elements required under § 1292(b), a district court may nonetheless deny interlocutory appeal [footnote omitted] . . . ." Principal Life Ins. Co. v. DeRose, 2012 U.S. Dist. LEXIS 65743, at *3 (M.D. Pa. 2012) (Conner, J.).¹ Furthermore, "the court should not certify questions of relatively clear law merely because the losing party disagrees with the court's analysis." Knopick v. Downey, 963 F. Supp. 2d 378, 398 (M.D. Pa. 2013) (Rambo, J.) (citing Elec. Mobility Corp. v. Bourns Sensors/Controls, 87 F. Supp. 2d 394, 398 (D.N.J. 2000)).

Here, the second factor in section 1292(b) is determinative, specifically whether there is substantial ground for difference of opinion as to the correctness of the Court's July 22, 2015 Memorandum and Order. "A substantial ground for difference of opinion exists when there is genuine doubt or conflicting precedent as to the correct legal standard." Sakalas, 2012 U.S. Dist. LEXIS 146723, at *4 (citing P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 355, 360 (D.N.J. 2001)). Said differently, "[a] substantial ground for difference ofopinion exists when controlling authority fails to resolve a pivotal matter." In re Chocolate Confectionary Antitrust Litigation, 607 F. Supp. 2d 701, 705-06 (M.D. Pa. 2009) (Conner, J.) (citing Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553, 599 (E.D. Pa. 2008); EBC, Inc. v. Clark Blidg. Sys., 2008 U.S. Dist. LEXIS 21018 (W.D. Pa. 2008)). "The clearest evidence of 'substantial grounds for difference of opinion' is where 'there are conflicting interpretations from numerous courts.'" Knopick, 963 F. Supp. 2d at 398 (quoting Beazer E., Inc. v. The Mead Corp., 2006 U.S. Dist. LEXIS 74743, at *7 (W.D. Pa. 2006)): see Weitzner, 2014 U.S. Dist LEXIS 62039, at *6 (finding a substantial ground for difference of opinion because, inter alia, "'[t]he Circuits are split on the question . . . .'"), But see Freedom Med., Inc. v. Gillespie, 2013 U.S. Dist. LEXIS 103301, at *15 (E.D. Pa. 2013) ("A circuit split between our Court of Appeals and the courts of appeals for other circuits does not make Third Circuit precedent any less binding and cannot be said to create a 'substantial ground for difference of opinion' when it comes to issues of law before this Court.").

Defendant claims that there are substantial grounds for difference of opinion as to whether the disclosure of a barcode allegedly embedded with plaintiff's account number on a debt collection envelope can constitute a violation of section 1692f(8). (Doc. 14, pp. 2-7); (Doc. 18, pp. 6-9). In support of this argument,Defendant directs the Court's attention to a number of district court decisions that have considered section 1692f under the same or similar circumstances present sub judice, but found that the FDCPA had not been violated. (Doc. 14, pp. 2-7).

Defendant first cites to two (2) decisions from the United States District Court for the Eastern District of Pennsylvania. (Id. at pp. 2-3). Specifically, Defendant directs the Court's attention to Waldron v. Professional Medical Management, 2013 U.S. Dist. LEXIS 34402 (E.D. Pa. 2013), and Douglass v. Convergent Outsourcing, 2013 U.S. Dist. LEXIS 110708 (E.D. Pa. 2013) ("Douglass I"), rev'd, 765 F.3d 299 (3d Cir. 2014). In Waldron, the district court granted summary judgment in favor of the defendant after finding that the defendant's disclosure of a quick response code embedded with the plaintiff's account number on a debt collection envelope did not violate the FDCPA. Waldron, 2013 U.S. Dist. LEXIS 34402, at *15. In Douglass I, the district court granted summary judgment in favor of the defendant after finding that the defendant's disclosure of the plaintiff's account number and a quick response code, which was embedded with the plaintiff's account number, on a debt collection envelope did not violate the FDCPA. Douglass I, 2013 U.S. Dist. LEXIS 110708, at *18, 20.

While Defendant acknowledges that the decision in Douglass I wasoverturned by the United States Court of Appeals for the Third Circuit in Douglass v. Convergent Outsourcing, 765 F.3d 299 ("Douglass II").² it contends that the "narrow Third Circuit ruling in Douglass pertained only to circumstances where the account number itself is printed on an envelope without the protection of being stored in a code." (Doc. 14, p. 4) (citing Douglass II, 765 F.3d at 302). Thus, according to Defendant, the portions of the decisions in Waldron and Douglass I finding that a quick response code embedded with the plaintiff's account number did not violate the FDCPA remain valid and therefore, support a finding that substantial grounds for a difference of opinion exist as to this Court's July 22, 2015 Order. (Id. at pp. 2-4, 7).

Defendant also cites to a number of district court decisions from outside the Third Circuit: Perez v. Global Credit and Collection Corp.;³ Gelinas v. Retrieval-Masters Creditors Bureau, Inc.;⁴ Gonzalez v. FMS, Inc.;⁵ Davis v. MRS BPO,LLC;⁶ and Sampson v. MRS BPO, LLC.⁷ (Doc. 14, pp. 4-7). In Perez and Sampson, the respective district courts found that the disclosure of an account number on a debt collection envelope does not constitute a violation under section 1692f(8) of the FDCPA. Perez, 2015 U.S. Dist. LEXIS 98692, at *2, 12-13; Sampson, 2015 U.S. Dist. LEXIS 32422, at *2; see also Gelinas, 2015 U.S. Dist. LEXIS 100470, at *2, 8-9 (held that displaying an "invoice number" on a debt collection envelope was not a violation of section 1692f(8)). In Davis, the United States District Court for the Northern District of Illinois held that the disclosure of a "sequence of over 60 letters and numbers" which "appeared on the envelope above Plaintiff's name and address" was not a violation of the FDCPA. Davis, 2015...