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Griffin v. Andrea Visgilio-Mcgrath, LLC

United States District Court, D. New Jersey

July 18, 2017

DORIS GRIFFIN, etc., Plaintiff,



         Plaintiff Doris Griffin brings a putative class action based on a statement in a debt collection letter she received (the "Letter") advising that "[u]ntil this [debt] is paid, it may appear on your credit report and adversely impact your credit, " and requesting prompt payment. Griffin's Complaint alleges that this statement is false, deceptive, and misleading, and therefore violates Fair Debt Collection Practices Act (the "FDCPA"), in particular 15 U.S.C. § 1692e and 1692e(10). Defendant Andrea Visgilio-McGrath, LLC ("AVM"), which sent the Letter, moves to dismiss the Complaint for lack of standing and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons stated herein, the motion to dismiss is denied.

         The Complaint

         The allegations of the Complaint may be summarized as follows: Griffin is a consumer, and AVM a debt collector, within the meaning of FDCPA. (Cplt. ¶¶ 6, 9)[1] Griffin incurred a consumer debt obligation to a creditor, Mountainside Hospital. (Cplt. ¶¶ 15-18) The debt was past due, and was referred to AVM for collection. (Cplt. ¶¶ 19-21)

         AVM sent Griffin a Letter dated July 14, 2016, in relation to the Mountainside debt. The pertinent part of the Letter reads:

With reference to the above entitled matter, please be advised that there remains a judgment against you and in favor of my client, Mountainside Hospital, A N.J. Corporation. The total amount due currently stands at $2, 374.68....
Until this is paid, it may appear on your credit report and adversely impact your credit. Therefore, if you wish to resolve this matter, prompt payment should be remitted directly to my office made payable to "Andrea Visgilio-McGrath, LLC, Trust Account."

(Letter, ECF no. 1 at 13; Cplt. ¶¶ 26, 27)

         The quoted language is alleged to be false and misleading for two reasons: (a) first, "[a] judgment appearing on a credit report will be deleted within the reporting period allowed pursuant to 15 U.S.C. § 1681c(a) [i.e., seven years] whether or not a payment is made on the judgment" (Cplt. ¶ 31); second, "[a] payment made on a judgment has no effect as to whether a judgment continues to appear on a credit report or not." (Cplt. ¶ 30)

         The Complaint alleges a single cause of action under FDCPA, 15 U.S.C. § 1692e and 1692e(10). The statements in the Letter allegedly "would cause the least sophisticated consumer to believe that making a payment of the judgment would have an effect on [] whether the judgment continued to appear on credit reports." (Cplt. ¶ 39) That least sophisticated consumer would allegedly glean from the Letter the false implication "that only a payment would cause it to be removed from the consumer's credit history." (Cplt. ¶ 46) On behalf of Griffin and others similarly situated, the Complaint seeks statutory and actual damages, interest, and attorneys' fees.

         Legal Standard

         Under Fed.R.Civ.P. 12(b)(6), the defendant, as the moving party, bears the burden of showing that no claim has been stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).[2]

         Federal Rule of Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint's factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also West Run Student Housing Assocs., LLC v. Huntington Nat Bank, 712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement'. . . it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.

         In addition, the defendants contend that Griffin lacks standing to assert her claim. Standing has a Constitutional aspect, which implicates the court's subject matter jurisdiction under Rule 12(b)(1).

         Rule 12(b)(1) challenges may be either facial or factual attacks:

A facial attack "concerns 'an alleged pleading deficiency' whereas a factual attack concerns 'the actual failure of [a plaintiffs] claims to comport [factually] with the jurisdictional prerequisites.'" [quoting CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations in original) (quoting United States ex ret Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)}.]
"In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." [quoting Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).] By contrast, in reviewing a factual attack, "the court must permit the plaintiff to respond with rebuttal evidence in support of jurisdiction, and the court then decides the jurisdictional issue by weighing the evidence. If there is a dispute of a material fact, the court must conduct a plenary hearing on the contested issues prior to determining jurisdiction." [citing McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006) (citations omitted).]

Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes omitted; case citations in footnotes inserted in text).


         AVM's motion to dismiss the complaint has two components: lack of standing, under Rule 12(b)(1), and failure to state a claim, under Rule 12(b)(2). Where, as here, the interest allegedly invaded is a statutory one, the standing and substantive analyses tend to be intertwined.

         A. Spokeo and cases interpreting it

         Under Article III of the U.S. Constitution, a plaintiff must establish standing to sue. As the Supreme Court recently summarized in Spokeo, Inc. v. Robins:

[S]tanding consists of three elements. Lujan, 504 U.S., at 560, 112 S.Ct. 2130. The plaintiff must have (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. Id., at 560-561, 112 ...

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