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Michael and Lynn Ogbin v. Ge Money Bank

June 13, 2011

MICHAEL AND LYNN OGBIN, PLAINTIFFS,
v.
GE MONEY BANK, T.J. KELLEY, INC., AND PORTFOLIO RECOVERY ASSOCIATES, LLC, DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

Plaintiffs, Michael and Lynn Ogbin, have filed this putative class action case claiming that defendants violated several laws when they improperly contacted plaintiffs in early 2009 regarding a debt that plaintiffs paid off in October 2001. Defendant Portfolio Recovery Associates, LLC has moved to dismiss plaintiffs' claims for their failure to state any cognizable claim.*fn1 For the reasons expressed below, defendant's motion will be granted.

BACKGROUND

Plaintiffs claim that Portfolio Recovery Associates, LLC ("PRA") is a debt collector that in early 2009 sent plaintiffs a notice concerning an outstanding bill in the amount of $686.04. Plaintiffs claim that in April 2009, they told PRA that the debt had been previously satisfied in October 2001 and requested that PRA verify the debt. Plaintiffs allege that PRA failed to verify the debt and has continued to conduct business in New Jersey as a debt collector without having posted the required bond. Plaintiffs claim that PRA's conduct has violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1962, et seq., the Truth-in-Consumer Contract and Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14, and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 et seq. Plaintiffs purport to bring these claims on their behalf and on behalf of similarly situated individuals.

Defendant has moved to dismiss plaintiffs' claims on several bases. Plaintiffs have opposed defendant's motion.

DISCUSSION

A. Jurisdiction

PRA removed this case from state court on the basis that this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(d)(2), the Class Action Fairness Act (CAFA). Jurisdiction may also be premised upon 28 U.S.C. § 1331 for plaintiffs' federal claim, and 28 U.S.C. § 1367 for plaintiffs' state law claims.

B. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("Iqbal . . . provides the final nail-in-the-coffin for the 'no set of facts' standard that applied to federal complaints before Twombly.").

Following the Twombly/Iqbal standard, the Third Circuit has instructed district courts to engage in a two-part analysis in reviewing a complaint under Rule 12(b)(6). First, the factual and legal elements of a claim should be separated; a district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Fowler, 578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950). Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Id. (quoting Iqbal, 129 S. Ct. at 1950). A complaint must do more than allege the plaintiff's entitlement to relief.

Id.; see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element"). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

Finally, a court in reviewing a Rule 12(b)(6) motion must only consider the facts alleged in the pleadings, the documents attached thereto as exhibits, and matters of judicial notice. Southern Cross Overseas Agencies, Inc. v. Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999). A court may consider, however, "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). If any other matters outside the pleadings are presented to the ...


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