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Jones v. Love, Beal & Nixon, P.C.

United States District Court, W.D. Arkansas, El Dorado Division

October 16, 2019

HEATHER JONES aka Heather Dempsey, individually and on behalf of all others similarly situated PLAINTIFF



         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.


         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 ...

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