United States District Court, W.D. Arkansas, El Dorado Division
HEATHER JONES aka Heather Dempsey, individually and on behalf of all others similarly situated PLAINTIFF
v.
LOVE, BEAL & NIXON, P.C. and MIDLAND FUNDING LLC DEFENDANTS
ORDER
SUSAN
O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE
Before
the Court is Defendants' Motion for Judgment on the
Pleadings. ECF No. 11. Plaintiff has filed a response. ECF
No. 15. The Court finds the matter ripe for consideration.
I.
BACKGROUND
Plaintiff
filed the instant action on January 16, 2019, on behalf of
herself and a proposed class consisting of all others
similarly situated. ECF No. 1. Plaintiff asserts two claims
under the Fair Debt Collection Practices Act, 15 U.S.C
§§ 1692, et seq. (“FDCPA”),
both of which are based on a January 18, 2018[1] letter
(“LBN letter”) Plaintiff received from Separate
Defendant Love, Beal & Nixon, P.C. (“LBN”)
regarding a debt she owed to Synchrony Bank.[2] ECF No. 1,
¶¶ 24-25, 27.
First,
Plaintiff alleges that Defendants “made deceptive and
misleading representations when they sought to collect a debt
from Plaintiff but failed to complete an accurate description
of Plaintiff's rights in violation of 15 U.S.C.
§§ 1692 and 1692e(10).” ECF No. 1, ¶ 39.
Second, Plaintiff alleges that the LBN letter failed
“to make any mention of [Plaintiff's] ability to
receive a copy of a judgment and have it mailed to her
attention” as required by 15 U.S.C. § 1692g. In
sum, both of Plaintiff's claims are based on the supposed
omission from the LBN letter of a statement advising her of
the right to request and receive a copy of the judgment
against her.
II.
DISCUSSION
In the
instant motion, Defendants assert that Plaintiff's claims
against them should be dismissed for two reasons: (1)
Plaintiff lacks standing because she merely alleges a
statutory violation, not an injury in fact; and (2) the
Complaint fails to state a claim against Defendants. Standing
is a jurisdictional issue, so the Court addresses it first.
A.
Standing
Defendants
assert that Plaintiff has failed to establish that she has
standing, which is a prerequisite to subject matter
jurisdiction. Specifically, Defendants assert that Plaintiff
has not alleged facts to show that she suffered an injury in
fact. Plaintiff fails to address the issue of standing in her
response to Defendants' motion.
Defendants
bring the instant standing challenge 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.'”).
In the
instant case, Defendants mount a facial attack on
Plaintiff's lack of standing. ECF NO. 12, p. 7. 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 factual allegations in the complaint are
presumed to be true. Titus v. Sullivan, 4 F.3d 590,
593 (8th Cir. 1993).
With
this standard in mind, 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). Plaintiff must clearly have
alleged facts demonstrating the satisfaction of each element.
Id. In the present case, Defendants argue that
Plaintiff has not alleged a harm that satisfies the
injury-in-fact requirement. Thus, the Court's analysis is
limited to whether Plaintiff suffered an injury in fact
sufficient to establish that jurisdiction is proper.
“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 judgment 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. However, the Spokeo Court recognized
that if “the violation of a ...