Kruskall v. Sallie Mae Serv., Inc.
| Decision Date | 14 March 2016 |
| Docket Number | Civil Action No.: 15-cv-11780 |
| Parties | LAUREN S. KRUSKALL, Plaintiff, v. SALLIE MAE SERVICE, INC., SLM CORPORATION and John Does, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiff Lauren S. Kruskall ("Kruskall") has filed this lawsuit against defendants Sallie Mae Service, Inc., ("Sallie Mae"), SLM Corporation ("SLM") and various Does alleging violations of 47 U.S.C. § 227 et seq. and 15 U.S.C. § 1692 et seq., bad faith and intentional infliction of emotional distress. D. 1-7. SLM has moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). D. 5. For the reasons stated below, SLM's motion is ALLOWED.
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court must determine if the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (internal citation omitted). Reading the complaint "as a whole," the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). The Court performs a close reading of the complaint to distinguish the factual allegations from the conclusory legal allegations. Id. Factual allegations must be accepted as true, while legal conclusions are not entitled to credit. Id. Second, the Court assesses whether the factual allegations present a "reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (internal quotation mark omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).
The Court will dismiss a pleading that fails to include "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). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557) (alteration in original). "This context-specific inquiry does not demand 'a high degree of factual specificity.'" García-Catalán, 734 F.3d at 103 (quoting Grajales v. Puerto Rico Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012)).
The Court recognizes that pro se litigants are generally held "to a standard of pleading less stringent than that for lawyers." Green v. Com. of Mass., 108 F.R.D. 217, 218 (D. Mass. 1985) (citing Sissbaro v. Warden, Mass. State Penitentiary, 592 F.2d 1, 2 (1st Cir. 1979)). Nevertheless, pro se litigants must comply with procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
All of the allegations recounted here are taken from the operative complaint, unless otherwise noted, and are accepted as true for the purposes of this motion. D. 1-7. Kruskall opens the complaint by identifying the Defendant as "Sallie Mae Service, Inc, also doing business as SLM Corp." Id. at 2. Throughout the complaint Kruskall refers to "Defendant"without differentiating between Sallie Mae and SLM. See generally D. 1-7. The complaint describes "Defendant"1 as a Delaware corporation with headquarters at 12061 Bluemont Way, Reston, Virginia. Id. ¶ 2. According to Kruskall, Sallie Mae, through its subsidiaries, provides loans and loan servicing throughout the United States. See id. Kruskall further alleges that Sallie Mae's primary business "is to originate and hold student loans by providing funding, delivery, and servicing support for education loans." Id.
Kruskall alleges that beginning in or around 2006 she took out a number of loans with "Defendant" to cover the cost of her education. Id. ¶ 5. Prior to and during her loan period, "Defendant" assisted Kruskall with her application and retrieval of private loan education funding. Id. ¶ 7. Specific unknown individuals representing "Defendant" recommended funding appropriate for Kruskall's circumstances. Id. During the course of the loan, Kruskall informed "Defendant" that her loan payments were burdensome. Id. ¶ 8. According to Kruskall, at or around this time, "Defendant" modified elements of the loan contracts, including but not limited to the addition of forbearance fees and other financial penalties and scheduling and interest rate changes. Id.
In addition, over the course of the loan, "Defendant" allegedly engaged in "brute force" phone calls, automated phone calls and other communication tactics towards Kruskall. Id. ¶ 9. Kruskall alleges that these calls were harassing in nature, monopolized the phone line, occurred at all hours and were placed within as little as fifteen minutes of each other. Id. Because many of these calls were prerecorded, Kruskall was unable to request that the calls end or voice her complaints to a "real person." Id. As alleged, when a real person did call, his or her command of the English language was often not sufficient to have a significant conversation regardingKruskall's finances. Id. "Defendant's" calls to Kruskall's cellular phone via the automatic telephone dialing system used an artificial or prerecorded voice. Id. ¶ 10. These phone calls were not made for emergency purposes. Id. ¶ 11. Kruskall further alleges that she filed a cease and desist order against "Defendant." Id. ¶ 12. The order was systematically ignored. Id.
According to Kruskall, in or around 2011, "Defendant" admitted to "excessive contact" and disregard for the cease and desist order. Id. ¶ 13. As representatives of the "Defendant," John Kane and other unknown individuals offered Kruskall a written settlement for her loans. Id. During negotiations with "Defendant," Kruskall provided additional information regarding violations made by various unknown individuals representing the corporation and mentioned potential litigation. Id. ¶ 14. John Kane, Lisa Dowling and the other unknown individuals then ceased all contact with Kruskall. Id.
At the outset and for the sake of clarity, the Court acknowledges certain challenges SLM raises to Kruskall's characterizations of the parties. SLM contends that SLM is a former corporate parent of Sallie Mae and SLM was never the lender or servicer of Kruskall's loans. D. 6 at 5 n.1. SLM asserts that Sallie Mae has been misidentified, D. 10 at 4, in that Sallie Mae is now known as Navient Solutions, Inc. ("Navient"). Id. at 4-5. As of June 4, 2015, SLM stated that Navient had not been served with process. Id. at 5 n.1. SLM represented during the state court proceedings in this case that Navient is the current servicer for three student loans disbursed to Kruskall in 2006 and 2007. D. 7 at 33, 52; D. 7-1 at 6. While the Court recognizes the challenges SLM raises to Kruskall's characterization of the relationship between SLM and Sallie Mae, the Court must, in its consideration of the motion to dismiss, accept Kruskall's allegations as true. However, as this motion to dismiss is brought by SLM, the Court evaluates Kruskall's allegations and claims in so far as they are raised against SLM.
Kruskall instituted this action on August 7, 2014 in the Norfolk Superior Court. D. 1-3. SLM subsequently removed the case to this Court. D. 1. SLM later moved to dismiss. D. 5. The Court heard the parties on the pending motion and took the matter under advisement.
The Telephone Consumer Protection Act ("TCPA") serves to "protect consumers from the 'proliferation of intrusive [telemarketing] calls to their homes.'" Golan v. Veritas Entm't, LLC, 788 F.3d 814, 819 (8th Cir. 2015) (alteration in original) (quoting Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 745 (2012)). Thus, the TCPA prohibits the initiation of "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . . for which the called party is charged for the call." 47 U.S.C. § 227(b)(1)(A)(iii). The term "automatic telephone dialing system" ("ATDS") is defined as "equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator; and . . . to dial such numbers." 47 U.S.C. § 227(a)(1).
To sustain a TCPA claim, a plaintiff must plead that (1) the defendant called a cellular telephone (2) the call was made using an ATDS and (3) the call was made without the recipient's prior express consent. Jones v. NCO Fin. Servs., No. 13-cv-12101-DJC, 2014 WL 6390633, at *2 (D. Mass. Nov. 14, 2014) ). Although "alleging specific details regarding a defendant's use of an ATDS can pose a challenge prior to conducting discovery," courts nonetheless have held that "a plaintiff mustplead more than the bare allegation that an ATDS was used." Id. In light of these tensions, a plaintiff is permitted to "rely on indirect allegations, such as the content of the message, the context in which it was received, and the existence of similar messages to raise an inference that an ATDS was used." Id. (internal quotation marks and citation omitted). A plaintiff may describe "the robotic sound" of the voice making the call, the "lack of human response" when trying to converse with the caller or the "generic content" of the message received. Id. (citing Johansen v. Vivant, Inc., No. 12-cv-7159, 2012 WL 6590551, at *3 (N.D. Ill. Dec. 18, 2012)).
Kruskall alleges that "Defendant" initiated "automated phone calls" that "monopolized the phone line, came in at all hours, and were placed within as little...
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