United States District Court, W.D. Arkansas, Texarkana Division
LATRENA WALKER, Individually and on behalf of all others similarly situated PLAINTIFF
STEPHEN P. LAMB, Law Offices; MIDLAND FUNDING, LLC; and JOHN DOE 1-25 DEFENDANTS
O. HICKEY, UNITED STATES DISTRICT JUDGE.
the Court is Separate Defendant Law Office of Stephen P.
Lamb's (“Lamb”) Motion to Dismiss. ECF No.
11. Plaintiff has filed a response. ECF No. 16. Lamb has
filed a reply. ECF No. 19.
before the Court is Separate Defendant Midland Funding,
LLC's (“Midland Funding”) Motion to Dismiss.
ECF No. 14. Plaintiff has filed a response. ECF No. 20.
Midland Funding has filed a reply. ECF No. 23.
Court finds these matters ripe for consideration.
filed the instant action on June 12, 2018, on behalf of
herself and a proposed class consisting of all others
similarly situated. ECF No. 1. Plaintiff states that some
time before June 19, 2017, she allegedly incurred a debt to
Synchrony Bank Amazon (“Synchrony
Bank”). ECF No. 1, ¶ 24. Plaintiff alleges
that Synchrony Bank or Midland Funding thereafter contracted
Lamb to collect the alleged debt. Id. at ¶ 28.
Plaintiff claims that on or about June 19, 2017, Lamb sent
her an initial contact notice (the
“letter”). Id. at ¶ 30. Plaintiff
alleges that this letter “fails to contain all the
requirements” found in the Fair Debt Collection
Practices Act (“FDCPA”) at 15 U.S.C. §
1692g, and that, specifically, it “deceptively fails to
identify who the current creditor is to whom the alleged debt
is owed” in violation of 15 U.S.C. § 1692g(a)(2).
Id. at ¶ 34, 49, 51. Plaintiff appears to
contend that, because the letter allegedly failed to identify
the current creditor, it is deceptive and misleading in
violation of 15 U.S.C. § 1692e(10). ECF No. 1, ¶
44. Plaintiff notes that the letter says “RE: Midland
Funding” but asserts that “nowhere does the
Letter clearly identify who the current creditor is as is
required by the FDCPA.” Id. at ¶ 35.
Plaintiff alleges that Defendants have violated the FDCPA by
failing to “provide the consumer with a proper, initial
communication letter” in that the letter allegedly does
not “clearly identify the current creditor of the
debt.” Id. at ¶ 38.
Court will first address Lamb's motion and then turn to
Midland Funding's motion.
Lamb's Motion to Dismiss
instant motion, Lamb asserts that Plaintiff's claims
against it should be dismissed. Specifically, Lamb asserts
that dismissal is warranted because: (1) Plaintiff lacks
standing, (2) the complaint fails to state a claim against
Lamb, and (3) Lamb is not subject to suit. The Court will
address each issue in turn.
asserts that Plaintiff has failed to establish that she has
standing. Specifically, Lamb asserts that Plaintiff has not
alleged facts to show that she suffered an injury-in-fact.
initial matter, the Court notes that although Lamb fails to
explicitly state as much, the instant standing challenge
appears to be brought pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject-matter jurisdiction.
See Faibisch v. Univ. of Minn., 304 F.3d 797, 801
(8th Cir. 2002) (“We have held . . . that if a
plaintiff lacks standing, the district court has no subject
matter jurisdiction. Therefore, a standing argument
implicates Rule 12(b)(1).” (internal citations
omitted)). A Rule 12(b)(1) motion may be brought as either a
“factual attack” or a “facial
attack.” Jackson v. Abendroth & Russell,
P.C., 207 F.Supp.3d 945, 950 (S.D. Iowa 2016) (citing
Stalley v. Catholic Health Initiatives, 509 F.3d
517, 520-21 (8th Cir. 2007)); see also Osborn v. United
States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (“A
Court deciding a motion under Rule 12(b)(1) must distinguish
between a ‘facial attack' and a ‘factual
makes a facial attack by challenging the sufficiency of the
pleadings. In evaluating such a challenge, a “court
restricts itself to the face of the pleadings and the
non-moving party receives the same protections as it would
defending against a motion brought under Rule
12(b)(6).” Osborn, 918 F.2d at 729 n.6
(internal citations omitted). In deciding a facial challenge,
the Court looks only at the pleadings and essentially uses
the Rule 12(b)(6) standard to determine whether the complaint
states a facially plausible jurisdictional claim.
Id.; Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (stating the post-Twombly standard for
Rule 12(b)(6)). When a complaint is facially challenged on
jurisdiction, all of the factual allegations in the complaint
are presumed to be true. Titus v. Sullivan, 4 F.3d
590, 593 (8th Cir. 1993). In contrast, if the moving party
mounts a factual attack, the Court will look beyond the
pleadings and consider extrinsic evidence and the
“non-moving party does not have the benefit of 12(b)(6)
safeguards.” Osborn, 918 F.2d at 729 n.6.
present case, Lamb does not state whether it intends to
present a facial or factual jurisdictional attack.
Nevertheless, upon review of the instant motion and
supporting brief, it appears that Lamb makes a facial attack.
See, e.g., ECF No. 12, pp. 4, 5
(“Plaintiff's Complaint fails to meet this burden
of proof and requirement [to establish standing].”)
(“Plaintiff's Complaint wholly fails to fulfill
[P]laintiff's burden of proof on Article III standing
because the Complaint does not plead facts which clearly
establish” a particularized and concrete injury.)
(“Plaintiff has wholly failed to allege actual facts to
satisfy Article III standing and Plaintiff's Complaint
should be dismissed on this basis.”). Accordingly, the
Court will consider the instant motion under that standard.
determined that Lamb makes a facial attack, the Court now
turns to the specific issue of standing. In order to
demonstrate that she has standing, Plaintiff must show that
she has “(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, __
U.S. __, 136 S.Ct. 1540, 1547 (2016). As this case is at the
pleading stage, Plaintiff must clearly have alleged facts
demonstrating the satisfaction of each element. Id.
the parties main point of contention concerns the
“injury-in-fact” element. “To establish
injury in fact, a plaintiff must show that he or she suffered
‘an invasion of a legally protected interest' that
is ‘concrete and particularized' and ‘actual
or imminent, not conjectural or hypothetical.'”
Id. at 1548 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). “For an
injury to be particularized, it must affect the plaintiff in
a personal and individual way.” Id. (internal
quotations omitted). “A ‘concrete' injury
must be ‘de facto'; that is, it must
actually exist.” Id. (citing Black's Law
Dictionary 479 (9th ed. 2009)) (emphasis in original). To be
“concrete, ” an injury must be real and not
abstract. Id. That being said,
“concrete” does not necessarily mean
“tangible” and intangible injuries can be
concrete. Id. at 1549. “In determining whether
an intangible harm constitutes injury in fact, both history
and the judgement of Congress play important roles.”
Id. “History contributes to a finding of
concreteness when the [alleged] intangible injury is closely
related to a traditional ‘basis for a lawsuit in
English or American courts.'” Jackson, 207
F.Supp.3d at 952 (quoting Spokeo, 136 S.Ct. at
Congress may identify and elevate concrete intangible
injuries to the status of legally cognizable injuries
“that were previously inadequate in law.”
Spokeo, 136 S.Ct. at 1549. However,
“Congress' role in identifying and elevating
intangible harms does not mean that a plaintiff automatically
satisfies the injury-in-fact requirement whenever a statute
grants a person a statutory right and purports to authorize
that person to sue to vindicate that right.”
Id. As the Court stated in Spokeo,
“Article III standing requires a concrete injury even
in the context of a statutory violation.” Id.
Accordingly, a plaintiff cannot “allege a bare
procedural violation, divorced from any concrete harm, and
satisfy the injury-in-fact requirement of Article III.”
Id. That being said, the Spokeo Court
recognized that “the violation of a procedural right
granted by statute can be sufficient in some circumstances to
constitute injury in fact” and, in such a case, a
plaintiff “need not allege any additional harm
beyond the one Congress has identified.” Id.
Eighth Circuit has applied Spokeo and found that a
plaintiff that had asserted “‘a bare procedural
violation [of the Cable Communications Policy Act], divorced
from any concrete harm'” had failed to allege an
injury-in-fact as required for Article III standing.
Braitburg v. Charter Commc'ns, Inc., 836 F.3d
925, 930 (8th Cir. 2016) (quoting Spokeo, 136 S.Ct.
at 1549). Specifically, the Eighth Circuit noted that the
Braitburg plaintiff alleged only that the defendant
“violated a duty to destroy personally identifiable
information by retaining certain information longer than the
company should have kept it” but had not alleged that
the defendant had “disclosed the information to a third
party, that any outside party [had] accessed the data, or
that [defendant had] used the information in any way during
the disputed period.” Id. Likewise, the court
noted that the plaintiff failed to identify any
“material risk of harm from the retention.”
notes that Plaintiff claims that, due to Defendants'
alleged failure to comply with the FDCPA, she suffered an
“informational injury” and, as a result of that
injury, has been damaged. See ECF No. 1,
¶¶ 39, 40, 45, 52. Lamb takes the position that
“an alleged ‘informational' inadequacy under
the FDCPA” is not enough to establish Article III
standing. ECF No. 12, p. 5. In response, Plaintiff asserts
that Defendants' alleged failure to clearly provide her
with the name of her current creditor-as required under 15
U.S.C. § 1692g-caused her to suffer various injuries.
Specifically, Plaintiff claims: she was “deprived . . .
of knowledge of who was attempting to collect her debt,
” she was put in a position where she was “unable
to ascertain whether or not she even owed the debt, ”
that the letter caused her confusion as to why Midland
Funding was trying to collect a debt from her, she
was made to feel confusion and stress “as to this
unknown debt, ” and was “forced to hire an
attorney and incur costs and fees associated with determining
the validity of this debt.” ECF No. 16, pp. 5-6.
Plaintiff asserts, in her response to Lamb's motion, that
these claimed injuries constitute “emotional, financial
and informational injury[.]” Id. at p. 6.
begin, the Court notes that Plaintiff's Complaint fails
to allege any of the injuries claimed in her response to the
instant motion. It appears that Plaintiff merely asserts in
her Complaint that she has suffered an “informational
injury” and that she has been “damaged.”
ECF No. 1, ¶¶ 39, 40. Accordingly, Plaintiff
essentially claims that she was injured due to an alleged
procedural violation of the FDCPA-namely to provide her with
the name of the creditor ...