United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
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.
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) 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. ¶¶
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,
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)
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)
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.
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.
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.
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).
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)
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).
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.
Spokeo and cases interpreting it
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 ...