Martinez v. TD Bank USA, N.A.
| Decision Date | 20 December 2016 |
| Docket Number | Civil Action No. 15–7712(JBS/AMD) |
| Citation | 225 F.Supp.3d 261 |
| Parties | Charlene MARTINEZ, individually and on behalf of all others similarly situated, Plaintiff, v. TD BANK USA, N.A., a National Bank, and Target Corporation, a Minnesota corporation, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Stefan Louis Coleman, Esq., 1072 Madison Ave., Suite 1, Lakewood, NJ 08701, Attorney for Plaintiff.
Jarrod D. Shaw, Esq., MCGUIRE WOODS LLP, 625 Liberty Avenue, 23rd Floor, Pittsburgh, PA 1522, Attorney for Defendants.
I. INTRODUCTION
Plaintiff Charlene Martinez brings this putative class action against Defendants TD Bank USA, N.A. ("TD Bank") and Target Corporation ("Target"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 ; the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code §§ 1788 –1788.33 ; and California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq. , arising from telephone calls placed in connection with Defendants' efforts to collect a consumer debt from Plaintiff's credit card. [First Amended Complaint ("FAC"), Docket Entry 25.] Before the Court is Defendants' motion to dismiss the claims under the RFDCPA and the UCL, Counts II and III of the First Amended Complaint. [Docket Entry 39.] Plaintiff has filed a Response [Docket Entry 42] and Defendants have filed a Reply [Docket Entry 45].1
Defendants argue that Plaintiff's claim under the RFDCPA cannot be sustained for two reasons. First, Defendants assert that Plaintiff has not alleged sufficient facts to properly plead that Defendants are "debt collectors" under the RFDCPA. Second, Defendants argue that the conduct Plaintiff describes in the FAC does not make out a claim for harassment under the RFDCPA as a matter of law. Defendants also argue that Plaintiff's UCL claims fail because Plaintiff lacks standing and cannot recover under the UCL, inasmuch as Plaintiff has not "lost money or property," and does not have the right to equitable remedies (i.e., injunction and/or restitution). For the reasons that follow, the Court will deny Defendants' motion in part and grant it in part because Plaintiff has adequately alleged grounds plausibly supporting her RFDCPA claim, but cannot recover under the UCL.
II. BACKGROUND2
TD Bank is a large national bank chain that, inter alia , "owns and underwrites a portfolio of credit card accounts." [FAC ¶ 1.] Target is a corporation headquartered in Minnesota and doing business in New Jersey and nationwide. [Id. at ¶ 8.]
Plaintiff Charlene Martinez, a California resident, opened a Target credit card account in 2007. She obtained her current cellular telephone number in 2011. In 2012, when she moved to a new home, she went online to Target's website in order to change the address associated with her Target credit card. The website required Plaintiff to input a telephone number in order to update her address information. The website claimed that when consumers put their phone number in the required field, they were consenting to receive autodialed and prerecorded calls or text messages at that phone number. There was no opportunity or ability, however, to decline such consent and still update one's address information as Plaintiff sought to do. Plaintiff allegedly entered her phone number in order to update her address, but only for that purpose. [Id. at ¶¶ 6; 25–30.]
TD Bank purchased the consumer credit card portfolio of Target in 2013 and assumed the assets and liabilities of those credit card accounts. Target remained responsible for servicing those accounts, subject to TD Bank's monitoring and control. [Id. at ¶ 14.] To that effect, TD Bank provided a Collections Manager to assist Target with operational oversight of the collections-related aspects of the program. [Id. at ¶ 16.] TD Bank caused collection calls to be placed for its credit card accounts, both on its own and through its agents. [Id. at ¶ 17.]
From late 2014 through April 2015, TD Bank and/or Target (acting as TD Bank's servicing agent) called Plaintiff's cell phone over 100 times, and as often as three times per day. [Id. at ¶ 32.] On April 10, 2015, Plaintiff faxed cease-and-desist letters to "TD Bank USA/Target Credit" and ordered them to "cease and desist all communications." [Id. at ¶ 33.] Despite this, Plaintiff received two phone calls from TD Bank and/or Target on April 14, 2015 "for purposes related to her outstanding debt." [Id. at ¶ 34.] During the first call, Plaintiff answered the phone, but only experienced a long delay before the call disconnected. During the second call, Plaintiff answered the phone and heard a "prerecorded or artificial" voice asking her to hold for a representative; once she was connected to a representative, she told him that he was calling her cell phone, that she did not consent to receive such calls, and that he should stop calling. On April 15, 2015, TD Bank and/or Target called Plaintiff's cell phone again. [Id. at ¶¶ 34–36.] No further calls are alleged after April 15, 2015.
Plaintiff alleges that, "[a]s a result of Defendants' conduct, [she] lost money or property in the form of consumed battery life; increased electrical usage; and diminished use, enjoyment, and utility of her cellular telephone and cellular telephone plan[,]" and that she and the California Subclass of potential plaintiffs suffered harms including "monies paid to receive the unsolicited telephone calls on their cellular phones" and "appropriati[on of their] cellular minutes" as well as the above [Id. at ¶¶ 38; 59; 65.] She also alleges that Defendants "not only invaded the personal privacy of Plaintiff and members of the putative Class and Subclass, but also intentionally and repeatedly violated the TCPA and the [RFDCPA]." [Id. at ¶ 24.]
Plaintiff alleges the following in her second cause of action:
[Id. at ¶¶ 54–55.]
III. STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not required, and "the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ " Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted). While a complaint is not required to contain detailed factual allegations, the plaintiff must provide the "grounds" of his "entitle[ment] to relief", which requires more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that the plaintiff failed to set forth fair notice of what the claim is and the grounds upon which it rests. Id. A complaint will survive a motion to dismiss if it contains sufficient factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all factual allegations in a complaint, that tenet is "inapplicable to legal conclusions," and "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. at 678.
IV. ANALYSIS
Defendants argue that Plaintiff has failed to allege "specific facts showing harassment or improper debt collection activity." [Docket Entry 39–1 at 12.] The Court disagrees.
The RFDCPA prohibits harassing conduct related to debt collection, including "causing a telephone to ring repeatedly or continuously to annoy the person called" and "communicating with such frequency as to be unreasonable and to constitute harassment under the circumstances." Cal. Civ. Code §§ 1788.11(d) & (e). It also prohibits parties from "engaging in conduct, the natural consequence of which is to harass or abuse a person in connection with the collection of a debt." Cal. Civ. Code § 1788.17 (referencing 15 U.S.C. § 1692d ).
While Plaintiff's allegations may not describe conduct arising to the utmost heights of harassment or abuse (cf. Neu v. Genpact Services, LLC , No. 11–cv–2246, 2013 WL 1773822, at *3–*5 (S.D. Cal. Apr. 25, 2013) (); Stirling v. Genpact Services, LLC , No. 2:11–cv–06369, 2012 WL 952310, at *4–*5 ) (); Krapf v. Nationwide Credit Inc. , No. SACV 09–00711, 2010 WL 2025323, at *2 (C.D. Cal. May 21, 2010) ()), the Court finds that she has adequately stated a claim that Defendants violated the RFDCPA.
Defendants cite Arikat v. JP Morgan Chase & Co. , 430 F.Supp.2d 1013, 1027 (N.D. Cal. 2006) for the proposition that a plaintiff may fail to state a claim for a violation of the RFDCPA even when he or she claims that defendants have made "endless annoying and minatory phone calls," "endless letters and minatory notices," calls at 4:00 AM and "ceaseless" calls at night, and calls outside their household. However, the Court reads Arikat differently as to that point; the plaintiffs in that case sued no fewer than thirteen defendants, including several different stores...
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