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Walker v. Lamb

United States District Court, W.D. Arkansas, Texarkana Division

February 11, 2019

LATRENA WALKER, Individually and on behalf of all others similarly situated PLAINTIFF
v.
STEPHEN P. LAMB, Law Offices; MIDLAND FUNDING, LLC; and JOHN DOE 1-25 DEFENDANTS

          ORDER

          SUSAN O. HICKEY, UNITED STATES DISTRICT JUDGE.

         Before 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.

         Also 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.

         The Court finds these matters ripe for consideration.

         BACKGROUND

         Plaintiff 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”).[1] 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”).[2] 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.”[3] 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.

         DISCUSSION

         The Court will first address Lamb's motion and then turn to Midland Funding's motion.

         I. Lamb's Motion to Dismiss

         In the 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.

         A. Standing

         Lamb 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.

         As an 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 attack.'”).

         A party 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.

         In the 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.

         Having 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.

         Here, 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 1549).

         Further, 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.

         The 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.” Id.

         Lamb 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[4] 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.

         To 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 ...


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