The opinion of the court was delivered by: Chesler, District Judge
This matter comes before the Court on motion for summary judgment filed by Defendant Credit Collection Services ("CCS") (docket item #187). Plaintiff opposes this request (docket item #203). The Court has considered the papers submitted by the parties. It rules based on those submissions pursuant to Federal Rule of Civil Procedure 78. For the reasons discussed below, Defendant's motion for summary judgment (docket item # 187) will be granted.
In this case, Plaintiffs are challenging Quest's billing procedures. Quest is the nation's leading provider of diagnostic and clinical testing. Quest performs these diagnostic and clinical testing services upon the orders of physicians, physicians assistants, and registered nurses. (Declaration of Dr. Hugh Long, ("Long Dec.") at 9.) Specimens are either obtained by physicians and sent to Quest for testing, or the patient is sent "'to a Quest Diagnostic Patient Service Center with an order to have the specimen drawn.'" (Declaration of Thomas McGuire ("McGuire Dec.") at 31, ¶ 38) (quoting "Assurance of Discontinuance," issued in In re Quest Diagnostics, Inc., Attorney General of the State of New York, June 13, 2002 ("AOD")). Physicians order the tests in writing, using either Quest's test requisition form, or the physician's prescription pad. (Id.) If the patient goes to a Quest Service Center, Quest obtains the patient's personal and billing information directly from the patient. Plaintiffs' claims challenge the billing practices of Quest and the Debt Collection Defendants as improper and unconscionable.
Only one of the named Plaintiffs, Mark Smaller, asserts claims against CCS. Plaintiff was the policyholder in 1998 for health insurance provided by BlueCross BlueShield of Vermont, which covered himself, his wife, daughter and son. The plan covered dependent children until the age of 22. (Smaller Tr. at 25; Ex. 1) On May 14, 1998, Plaintiff's daughter (over the age of 18) was charged $43.38 for a visit to her physician. (PLF 1952 Ex. 2) Quest eventually referred the account to CCS for debt collection. CCS then commenced dunning, or collection, immediately. In response to the first collection letter, Plaintiff paid the monies owed. However, asserting that it was unaware of the payment, CCS sent two more collection letters to Plaintiff's daughter. In response to these demands, Plaintiff's wife informed CCS that full payment had been made. (Shapiro Tr. at 204) Despite such notification, yet another collection letter was sent to Plaintiff's daughter. After continued confusion and attempts at demonstrating payment, Plaintiff complained to the Vermont Attorney General. (Smaller Tr. at 42-45)
Plaintiff asserted that CCS violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Section 1961, et seq., Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1962, et seq., Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001, et seq., the New Jersey Consumer Fraud Act ("NJCFA"), N.J.S.A. Section 56:8-1, et seq., similar consumer protection laws of other states, breach of contract, common law fraud and unjust enrichment. Specifically, Plaintiff has alleged that "CCS is regularly retained by Quest . . . [and] reasonably should know, that many of the so called debts claimed by CCS and Quest to be owed by consumers to Quest are not owed. Nevertheless, CCS engages in unfair, deceptive, fraudulent and unconscionable methods, acts and practices to collect or attempt to collect, these unearned and non-existent debts." (Am. Compl. At 35) On October 6, 2005 this Court granted in part and denied in part the motion to dismiss filed by Defendant CCS. In that Opinion, Judge Lifland held:
Based upon the pleadings, Plaintiff Smaller has suffered an injury-in-fact because he alleges that he was doubled billed and falsely billed by Defendant CCS. The cause for Plaintiff Smaller's injury were the actions by CCS in directing more than one bill to Plaintiff Smaller and Plaintiff can be made whole again through money damages. For that reason, CCS's argument that Mark Smaller does not have standing must fail.
Agostino v. Quest Diagnostics, Inc., Memorandum and Order (D.N.J. Oct. 6, 2005) (Docket item #49 at 16).
After years of discovery, CCS now asserts, among others, that Plaintiff has suffered no injury in-fact and does not have standing to assert the remaining causes of action. Plaintiff asserts that the motion of CCS challenging Plaintiff Smaller's claims under the Vermont or New Jersey Consumer Fraud Acts and RICO must be denied.*fn1
A. Summary Judgment Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has properly supported its showing of no triable issue of fact and of an entitlement to judgment as a matter of law, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita, 475 U.S. at 586; see also Anderson, 477 U.S. at 247-48. Pursuant to Federal Rule of Civil Procedure 56(e), the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324; Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) ("to raise a genuine issue of material fact . . . the ...