Kausar v. GC Services Limited Partnership

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.May 18, 2017

4815-8053-2808.1 Page 1 of 2 Jeffrey Spiegel Lewis Brisbois Bisgaard & Smith LLP 77 Water Street, 21st Floor New York, New York 10005 Telephone: (646) 783-1703 Fax: (212) 232-1399 Jeffrey.Spiegel@lewisbrisbois.com Attorneys for Defendant, GC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself and all others similarly situated, Plaintiff, - v. - GC SERVICES LIMITED PARTNERSHIP, Defendant. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY 2:15-cv-06027-ES-JAD NOTICE OF MOTION TO DISMISS Motion Day: June 19, 2017 Oral Argument Requested To: Ryan L. Gentile Law Offices of Gus Michael Farinella PC 110 Jericho Turnpike, Ste. 100 Floral Park, New York 11001 Attorneys for Plaintiff PLEASE TAKE NOTICE that, upon the accompanying Brief of Defendant GC Services Limited Partnership in Support of its Motion to Dismiss, dated May 17, 2017, Defendant GC Services Limited Partnership will move this Court, at the Martin Luther King Building & U.S. Courthouse, 50 Walnut St., Newark, New Jersey, 07101, before the Honorable Esther Salas on June 19, 2017, for an Order pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure granting Defendant’s motion to Case 2:15-cv-06027-ES-JAD Document 44 Filed 05/18/17 Page 1 of 2 PageID: 607 4815-8053-2808.1 Page 2 of 2 dismiss thereby dismissing the Complaint and each count thereof on the grounds this Court lacks subject matter jurisdiction due to Plaintiff’s lack of standing, and granting Defendant such other and further relief as is just and proper. LEWIS BRISBOIS BISGAARD & SMITH LLP Dated: May 17, 2017 By: /s/ Jeffrey Spiegel New York, New York Jeffrey Spiegel 77 Water Street, 21st Floor New York, New York 10005 Telephone: (646) 783-1703 Fax: (212) 232-1399 Jeffrey.Spiegel@lewisbrisbois.com Attorneys for Defendant, GC Services Limited Partnership Case 2:15-cv-06027-ES-JAD Document 44 Filed 05/18/17 Page 2 of 2 PageID: 608 Jeffrey Spiegel Lewis Brisbois Bisgaard & Smith LLP 77 Water Street, 21st Floor New York, New York 10005 Telephone: (646) 783-1703 Fax: (212) 232-1399 Jeffrey.Spiegel@lewisbrisbois.com Attorneys for Defendant, GC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself and all others similarly situated, Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, Defendant. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Case No. 2:15-cv-06027-ES-JAD Motion Day: June 19, 2017 Oral Argument Requested DEFENDANT GC SERVICES LIMITED PARTNERSHIP’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 1 of 29 PageID: 609 ii TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii BACKGROUND FACTS .......................................................................................... 1 ARGUMENT ............................................................................................................. 2 PLAINTIFF DOES NOT HAVE STANDING BASED ON AN INTANGIBLE INJURY....................................................................................................................12 CONCLUSION....................................................................................................... 24 Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 2 of 29 PageID: 610 iii TABLE OF AUTHORITIES Cases Aranda v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2016 U.S. Dist. LEXIS 111828, 2016 WL 4439935 (N.D. Ill. Aug. 23, 2016) ......................................................................................18 Church v. Accretive Health, Inc., 2016 U.S. App. LEXIS 12414 (11th Cir. July 6, 2016) ............................... 22, 23 Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013) ........................................................................................10 Dolan v. Select Portfolio Servicing, 2016 U.S. Dist. LEXIS 101201 (E.D.N.Y. Aug. 2, 2016) .................... 20, 21, 22, Federal Election Commission v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998) .............................. 12, 13, 14, 17, 20, 21, 22 In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 2016 WL 3513782 (3d Cir. 2016) ................................................18 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130 (1992) ...................................................... 3, 12, 15 Pasley v. Freeman, (1789) 100 Eng. Rep. 450 (K.B.) 450 .................................................................16 Provo v. Rady Children’s Hosp., 2016 U.S. Dist. LEXIS 120174, 2016 WL 4625556 (S.D. Cal. Sept. 6, 2016) ............................................................................... 11, 19 Public Citizen v. Department of Justice, 491 U.S. 440, 109 S. Ct. 2558 (1989) ............................ 12, 13, 14, 17, 20, 21, 22 Riess v. Messerli & Kramer, P.A., 2011 U.S. Dist. LEXIS 130621, 2011 WL 5506290 (N.D. Minn. Nov. 10, 2011) ................................................................................10 S. Development Co. v. Silva, 125 U.S. 247, 8 S. Ct. 881 (1888) .......................................................................16 Sartin v. EKF Diagnostics, Inc., 2016 U.S. Dist. LEXIS 86777, 2016 WL 3598297 (E.D. La. July 5, 2016) ................................................................................. 19, 23 Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361 (1972) ..................................................................... 4 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 96 S. Ct. 1917 (1976) .....................................................................24 Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540 (2016) .................. 2, 3, 4, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23 Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 3 of 29 PageID: 611 iv Stoops v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 82380, 2016 WL 3566266 (W.D. Pa. June 24, 2016) .............................................................................. 19, 20 Summers v. Earth Island Inst., 555 U.S. 488, 129 S. Ct. 1142 (2009) .................................................................18 Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197 (1975) ...............................................................3, 24 Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717 (1990) .............................................................3, 11 Statutory Authorities 12 U.S.C. § 2601 et seq. .......................................................................................... 20 12 U.S.C. § 2605 .............................................................................................. 21, 22 12 U.S.C. § 2607..................................................................................................... 21 15 U.S.C. § 1681e .................................................................................................... 4 15 U.S.C. § 1692 et seq. ............................................................................................. 1 15 U.S.C. § 1692(e) .............................................................................................6, 15 15 U.S.C. § 1692e(10) ...........................................................................................2, 7 15 U.S.C. § 1692g ..................................................................................... 2, 9, 11, 16 15 U.S.C. § 1692g(a) .................................................................................... 6, 17, 18 15 U.S.C. § 1692g(a)(4) .................................................................................. 2, 7, 19 15 U.S.C. § 1692g(a)(5) .........................................................................................2, 7 15 U.S.C. § 1692k ....................................................................................................15 47 U.S.C. § 227....................................................................................................... 19 Rules and Regulations Fed. R. Civ. P. 12(b)(1) ........................................................................... 1, 11, 19, 24 Constitutional Provisions U.S. Const. art. III, § 2 ............................................................................................... 2 Legislative Materials S. Rep. No. 95-382 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695 .... 9, 15, 16, 17 Additional Authorities Restatement (Second) of Torts § 525 (1977) .................................................... 16, 18 Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 4 of 29 PageID: 612 1 Defendant, GC Services Limited Partnership, moves the Court to dismiss this action under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction as to all of Plaintiff’s claims because Plaintiff lacks standing to bring this suit. BACKGROUND FACTS Plaintiff brings this action on behalf of herself and proposes to do so for others “similarly situated” against Defendant under the Fair Debt Collection Practices Act (“FDCPA”). Plaintiff alleges a certain debt collection letter sent by Defendant to Plaintiff and other consumers violated the FDCPA. See 15 U.S.C. § 1692 et seq. After having been retained by Synchrony Bank to recover a monetary debt owed by Plaintiff, Defendant, on or about June 9, 2015, mailed a letter to Plaintiff informing her of the debt. A copy of the letter at issue (the “Letter”) is Exhibit A to Plaintiff’s Complaint. The Letter states in pertinent part: However, if you do dispute all or any portion of this debt within 30 days of receiving this letter, we will obtain verification of the debt from our client and send it to you. Or, if within 30 days of receiving this letter you request the name and address of the original creditor, we will provide it to you in the event it differs from our client, Synchrony Bank. Complaint, Exhibit A. Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 5 of 29 PageID: 613 2 Plaintiff contends the Letter violated the FDCPA because it did not contain two separate informational disclosures contained in 15 U.S.C. § 1692g. Complaint, at ¶ 33. In Plaintiff’s only count, Count I, Plaintiff argues the Letter violated 15 U.S.C. § 1692g(a)(4) and § 1692g(a)(5) because the Letter “failed to communicate that to be entitled to a verification of the debt under subsection (a)(4) or to obtain the name and address of the original creditor under subsection (a)(5) the request must be in writing.” Complaint, at ¶ 36. Also in Count I, Plaintiff argues the Letter violated 15 U.S.C. § 1692e(10) “by failing to disclose in the [Letter] or within five days thereafter information required by 15 U.S.C. § 1692g(a)(4) and 15 U.S.C. § 1692g(a)(5) and as such used a false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” Complaint, at ¶ 46. Plaintiff seeks class certification, statutory, but no actual, damages, for herself and the putative class, attorney’s fees, litigation expenses, and costs of suit. Complaint, at pp. 13-14. ARGUMENT The standing doctrine serves to ensure the authority of the federal courts extends only to “cases” and “controversies,” as mandated by Article III of the United States Constitution. U.S. Const. art. III, § 2; accord Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540, 1547 (2016). In practice, standing functions as a Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 6 of 29 PageID: 614 3 “threshold question” a litigant invoking federal jurisdiction must satisfy before the court may hear the case. Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197 (1975). The “irreducible constitutional minimum of standing” is that a plaintiff show (1) an “injury-in-fact” that (2) is “fairly ... trace[able] to the challenged action of the defendant” and (3) is “likely ... [to] be redressed by a favorable decision” in court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992). The burden of these three elements together “ensure[s] that federal courts do not exceed their authority as it has been traditionally understood ... [and] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, 136 S. Ct. at 1547. As did the Supreme Court’s recent opinion in Spokeo, this motion focuses on the first of standing’s three elements: injury in fact. This burden requires a plaintiff show “an invasion of a legally protected interest” that is both “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks omitted). The Supreme Court has “emphasized repeatedly” that an injury “must be concrete in both a qualitative and temporal sense.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717 (1990). Such an injury must be “distinct and palpable, as opposed to merely [a]bstract.” Id. (citations and internal quotation marks omitted). In other words, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 7 of 29 PageID: 615 4 requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S. Ct. 1361 (1972). In Spokeo, a class-action lawsuit brought under the Fair Credit Reporting Act, the Supreme Court discussed the principles of standing and the injury-in-fact requirement. 136 S. Ct. at 1546. Like the FDCPA, the Fair Credit Reporting Act imposes various procedural requirements on consumer reporting agencies in order to ensure credit reporting is fair and accurate. See 15 U.S.C. § 1681e. Spokeo, Inc. is a web-based company that compiles informational “profiles” of persons from various online databases and provides the profiles to users via its website. Spokeo, 136 S. Ct. at 1546. This information can include “the individual’s address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences.” Id. The plaintiff, a private consumer, learned Spokeo had provided incorrect information on the plaintiff to a Spokeo user. Id. The plaintiff sued Spokeo for violating the Fair Credit Reporting Act’s procedural requirements. Id. at 1545-46. The district court found the plaintiff had not alleged an injury in fact and dismissed the complaint for lack of standing. Id. at 1546. The Court of Appeals for the Ninth Circuit reversed. Id. The Ninth Circuit held the plaintiff’s injury “satisf[ied] the injury-in-fact requirement of Article III” because “Spokeo violated [the plaintiff’s] statutory rights, not just the statutory rights of other people.” Id. (quoting 742 F.3d 409, 413-14 (9th Cir. 2014)). Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 8 of 29 PageID: 616 5 The Supreme Court granted certiorari and reversed the Ninth Circuit’s finding of standing. Id. at 1550. It found the Ninth Circuit’s injury-in-fact analysis focused exclusively on whether the plaintiff’s injury was particularized. Id. The Supreme Court stated it has “made it clear time and time again” that plaintiffs must establish both a particularized and concrete injury to show injury in fact. Id. at 1548. The Supreme Court held that, “[b]ecause the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete.” Id. at 1550. The Court did not determine if the plaintiff ultimately had standing under the Fair Credit Reporting Act and instead remanded the case to the Ninth Circuit for further proceedings. Id. The Supreme Court described the analysis for determining whether an alleged injury is concrete. “[A] concrete injury must be ‘de facto’; that is, it must actually exist.” Id. at 1548. Notably, and importantly here as it was in Spokeo, the ability of Congress to create cognizable injuries does not mean a plaintiff can “allege a bare procedural violation [of a federal statute], divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. at 1549. The mere fact that “a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right” does not result in automatic standing. Id. Plaintiffs must still show a concrete injury when alleging a statutory violation. Id. There are some Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 9 of 29 PageID: 617 6 circumstances where the injury-in-fact requirement can be satisfied by a bare procedural violation of a statutory right, as long as that violation is still tied to real and concrete harm. See id. at 1549-50. In such cases, “a plaintiff . . . need not allege any additional harm beyond the one Congress has identified.” Id. at 1549. Here, Plaintiff alleges the Letter she received from Defendant violated various disclosure requirements of the FDCPA. The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The statute accomplishes this purpose in part by providing consumers the right to dispute and seek verification of an alleged debt within thirty days after receiving notice of the debt from a debt collector. Id. § 1692g(b). Once a consumer exercises these rights, the debt collector must “cease collection of the debt” until verification is provided or the dispute is resolved. Id. The FDCPA requires debt collectors inform consumers of these rights via written notification “[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt.” Id. § 1692g(a). Furthermore, “[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 10 of 29 PageID: 618 7 disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.” Id. § 1692g(b). Plaintiff contends Defendant violated these disclosure requirements in two ways. First, Plaintiff argues Defendant failed to properly inform her of her rights under the FDCPA because “the [Letter] ... failed to communicate that to be entitled to a verification of the debt under subsection (a)(4) ... the request must be in writing.” Complaint, at ¶ 36; 15 U.S.C. § 1692g(a)(4). Next, Plaintiff contends Defendant failed to properly inform her of her rights under the FDCPA because “the [Letter] ... failed to communicate that ... to obtain the name and address of the original creditor under subsection (a)(5) the request must be in writing.” Complaint, at ¶ 36; 15 U.S.C. § 1692g(a)(5). Plaintiff does not allege any injuries beyond these statutory violations. Plaintiff’s third and final contention, also within Count I, by which Plaintiff alleges Defendant violated 15 U.S.C. § 1692e(10), which prohibits “the use of any false representation or deceptive means to collect or attempt to collect any debt,” is based solely and contingent upon Defendant’s alleged violations of the FDCPA’s disclosure requirements at 15 U.S.C. § 1692g(a)(4) and § 1692g(a)(5), upon which Plaintiff bases her first two claims, respectively, discussed supra. A violation of the FDCPA alone, however, does not itself amount to an injury-in-fact. Compare Spokeo, 136 S. Ct. at 1549 (“Congress’ role in identifying Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 11 of 29 PageID: 619 8 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.”). “[A] bare procedural violation [of a statute], divorced from any concrete harm” cannot confer Article III standing. Id. For example, the Spokeo Court stated that even if a consumer reporting agency violated the Fair Credit Reporting Act by “fail[ing] to provide the required notice to a user of the agency’s consumer information,” no concrete harm would result if that information was in fact accurate. Id. at 1550. Similarly, the Court remarked “[i]t is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” Id. In other words, not all failures to give statutorily mandated notice or accurate information “cause harm or present any material risk of harm.” Id. In this case, all three of Plaintiff’s claims relate to Defendant hypothetically interfering with Plaintiff’s ability to dispute her debt. In her first of three claims, Plaintiff argues the Letter she received from Defendant violated the FDCPA “because the [Letter] ... failed to communicate that to be entitled to a verification of the debt under subsection (a)(4) ... the request must be in writing.” Complaint, at ¶ 36. In her second of three claims, Plaintiff argues the Letter violated the FDCPA “because the [Letter] ... failed to communicate that ... to obtain the name and Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 12 of 29 PageID: 620 9 address of the original creditor under subsection (a)(5) the request must be in writing.” Id. In her third and final claim, Plaintiff argues Defendant violated the FDCPA “by failing to disclose in the Letter ... information required by [subsections (a)(4) and (a)(5), discussed supra] and as such used a false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” Complaint, at ¶ 46. But Plaintiff never even suggested, let alone aver, that she ever intended or attempted to dispute her debt in any way. Plaintiff does not allege the amount of the debt listed at the top of the Letter was incorrect and does not contend the identity of her original creditor is different from the creditor listed in the Letter. Plaintiff does not express any doubt as to the validity of the debt or the identity of the original creditor. In other words, Plaintiff does not argue she suffered any harm at all, let alone the concrete harm the disclosure requirements within section 1692g of the FDCPA are designed to prevent. See S. Rep. No. 95-382, at 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1699 (stating the “[v]alidation of debts” provision in section 1692g of the FDCPA “will eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid”). The fact pattern of Plaintiff’s Complaint mirrors the Supreme Court’s illustration of a statutory violation that fails to amount to a Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 13 of 29 PageID: 621 10 concrete injury. See Spokeo, 136 S. Ct. at 1550 (“A violation of one of the [Fair Credit Reporting Act]’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate.”). Here, Plaintiff does not allege in her Complaint any injuries beyond statutory violations. Moreover, Plaintiff’s alleged statutory violations did not create any risk of real harm because, as indicated above, Plaintiff did not intend and had no grounds to dispute or challenge the validity of her debt. If a consumer contends the alleged debt owed is incorrect, or merely wishes to verify the debt, then a deficient disclosure of her FDCPA rights could create a risk of real harm because a consumer could inadvertently forfeit her right to validate the debt. Cf. Riess v. Messerli & Kramer, P.A., 2011 U.S. Dist. LEXIS 130621, 2011 WL 5506290, at *4 (N.D. Minn. Nov. 10, 2011) (finding a consumer intending to dispute his debt was misled by a letter demanding immediate payment before the thirty-day validation window, which “suggested that [the consumer] was out of time and no longer had the option to dispute his debt”). However, because Plaintiff never intended to dispute or validate her debt, Defendant’s alleged failure to disclose Plaintiff’s FDCPA rights in the Letter did not carry the risk of real harm. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (stating the Court has Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 14 of 29 PageID: 622 11 “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact’ and that ‘allegations of possible future injury’ are not sufficient”) (quoting Whitmore, 495 U.S. at 158). In Provo v. Rady Children’s Hosp., 2016 U.S. Dist. LEXIS 120174, 2016 WL 4625556, at *2 (S.D. Cal. Sept. 6, 2016), the Southern District of California analyzed the injury-in-fact element following Spokeo. In Provo, the court found the plaintiffs’ allegation that the debt collector’s letter violated the FDCPA was not a concrete injury when “nowhere in the [complaint did the plaintiffs] plead any harm or material risk of harm that they suffered as a consequence.” Like the plaintiffs in Provo, Plaintiff’s only allegations here are statutory procedural violations. Accordingly, the Court should find such claims are insufficient to establish concrete injury. Violations of the FDCPA disclosure requirements in section 1692g may result in concrete injuries. However, Plaintiff alleges no such injury. Instead, her only alleged injury is that Defendant did not make the correct disclosures mandated by section 1692g. Such a bare procedural violation alone does not constitute an intangible harm that satisfies the injury-in-fact requirement. Without further alleging a concrete and particularized injury as a result of the FDCPA violations, Plaintiff’s claims are insufficient for Article III standing. Consequently, the Court should dismiss Plaintiff’s Complaint in accordance with Rule 12(b)(1) of Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 15 of 29 PageID: 623 12 the Federal Rules of Civil Procedure for lack of subject matter jurisdiction because Plaintiff lacks standing to sue. PLAINTIFF DOES NOT HAVE STANDING BASED ON AN INTANGIBLE INJURY The Supreme Court in Spokeo recognized a plaintiff’s injuries do not necessarily have to be “tangible” in order to be concrete. 136 S. Ct. at 1549. “In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles.” Id. “[I]t is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. The judgment of Congress is “also instructive and important” because “Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.’” Id. (quoting Lujan, 504 U.S. at 578). Accordingly, some procedural violations of statutes are, on their own, sufficient to constitute an injury-in-fact. Id. at 1549-50. In such circumstances, “a plaintiff . . . need not allege any additional harm beyond the one Congress has identified.” Id. at 1549. The Spokeo Court cited two cases as examples where a statutory procedural violation alone constitutes a concrete injury—Federal Election Commission v. Akins, 524 U.S. 11, 118 S. Ct. 1777 (1998), and Public Citizen v. Department of Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 16 of 29 PageID: 624 13 Justice, 491 U.S. 440, 109 S. Ct. 2558 (1989). Spokeo, 136 S. Ct. at 1549-50. At issue in Akins was whether an organization had to publicly disclose certain information under the Federal Election Campaign Act. 524 U.S. at 13-14. The Court noted the purpose of the Act is “to remedy any actual or perceived corruption of the political process” by, among other means, “impos[ing] extensive recordkeeping and disclosure requirements upon groups that fall within the Act’s definition of a ‘political committee.’” Id. at 14. The Court found the plaintiff voters’ “inability to obtain information [about the organization’s donors]” was a concrete and particular injury in fact. Id. at 21. In Public Citizen, various public interest groups sued the Department of Justice under the Federal Advisory Committee Act for failing to disclose the names of potential federal judicial nominees. 491 U.S. at 447. Addressing a challenge for lack of standing, the Court found “refusal to permit [the plaintiffs] to scrutinize the ABA Committee’s activities to the extent [the Federal Advisory Committee Act] allows constitutes a sufficiently distinct injury to provide standing to sue.” Id. at 449. In this case, as Plaintiff has not alleged any actual damages, Defendant anticipates that, in response to this motion, Plaintiff will argue the injuries she suffered by being denied information under the FDCPA are analogous to the injuries in Akins and Public Citizen. Plaintiff will likely contend something to the effect that “the Court in Spokeo held that being denied access to information to Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 17 of 29 PageID: 625 14 which an individual is entitled by statute is, on its own, sufficiently concrete.” In other words, an argument that a violation of the FDCPA’s disclosure requirements alone is an intangible harm providing Article III standing. However, the procedural violations in Akins and Public Citizen were each considered an injury-in-fact because the violations were tied to a concrete harm, not merely because the plaintiffs were denied access to information. See Spokeo, 136 S. Ct. at 1549-50. In Akins, the failure to obtain information prevented the plaintiffs from “evaluat[ing] candidates for public office ... [and] the role that [an organization]’s financial assistance might play in a specific election.” 524 U.S. at 21. In Public Citizen, the failure to obtain information prevented the plaintiffs from “seek[ing] access to the ABA Committee’s meetings and records in order to monitor its workings and participate more effectively in the judicial selection process.” 491 U.S. at 449. Each injury was in essence the very harm the respective statutes were designed to prevent. See Akins, 524 U.S. at 14 (“[T]he [Federal Election Campaign Act] seeks to remedy any actual or perceived corruption of the political process.”); Public Citizen, 491 U.S. at 446 (“[One] purpose [of the Federal Advisory Committee Act] was to ensure ... that Congress and the public remain apprised of [new advisory committees’] existence, activities, and cost.”). Accordingly, the plaintiffs in Akins and Public Citizen did not have to “allege any additional harm beyond the one Congress [ ] identified.” Spokeo, 136 S. Ct. at Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 18 of 29 PageID: 626 15 1549. Plaintiffs’ denial of access to statutorily mandated information is not what made the procedural violations in those cases concrete. See Spokeo, 136 S. Ct. at 1550 (stating denial of information mandated by statute “may result in no harm” for standing purposes). Here, to determine whether Plaintiff’s alleged FDCPA violations are by themselves sufficiently concrete to confer Article III standing, this Court must examine the provisions at issue and consider both the history of related harms in American and English courts, as well as Congress’ judgment. Spokeo, 136 S. Ct. at 1549. The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. § 1692(e). The statute seeks “to protect consumers from a host of unfair, harassing, and deceptive debt collection practices.” S. Rep. No. 95-382, at 1. Congress enacted the FDCPA to be “primarily self-enforcing,” noting “consumers who have been subjected to collection abuses will be enforcing compliance.” Id. at 5. Section 1692k creates civil liability for “any debt collector who fails to comply with any provision of this subchapter with respect to any person.” 15 U.S.C. § 1692k. Congress plainly intended to elevate violations of the FDCPA “to the status of legally cognizable injuries.” Lujan, 504 U.S. at 578. Furthermore, the harms resulting from abusive debt collection practices are closely related to harms that traditionally provided a basis for relief in American and Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 19 of 29 PageID: 627 16 English courts, such as fraud. See S. Dev. Co. v. Silva, 125 U.S. 247, 250, 8 S. Ct. 881 (1888) (defining the legal elements of a civil fraud); Pasley v. Freeman (1789) 100 Eng. Rep. 450 (K.B.) 450 (“A false affirmation, made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit.”); Restatement (Second) of Torts § 525 (1977) (discussing fraudulent misrepresentation). Thus, the FDCPA created the substantive right for consumers to be free from debt collector abuse. To accomplish this goal, the statute mandates various procedures meant to decrease the risk of the above-mentioned injuries. On a general level, each of these procedures helps prevent abusive actions by debt collectors. But this does not mean their violation automatically amounts to the injury identified by Congress in the statute. See Spokeo, 136 S. Ct. at 1550 (“A violation of one of [a federal statute]’s procedural requirements may result in no harm.” (emphasis added)). In this case, Plaintiff alleges Defendant violated the FDCPA’s “validation of debts” provision. Complaint, at ¶ 36; 15 U.S.C. § 1692g. The provision’s purpose is to “eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.” S. Rep. No. 95-382, at 4. To prevent this, the provision vests consumers with the right to verify any debt they are alleged to owe, and contains various procedures for ensuring that right, including disclosure requirements for debt collectors. See 15 U.S.C. § Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 20 of 29 PageID: 628 17 1692g(a). A debt collector must provide a consumer, within five days after the initial communication between the consumer and the debt collector, a written notice containing: (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. Id. § 1692g(a). These requirements in section 1692g(a) are procedural rights designed to decrease the risk of the injury identified by Congress in the FDCPA— abusive debt collection practices in the form of “dunning the wrong person or attempting to collect debts which the consumer has already paid.” S. Rep. No. 95- 382, at 4. Although violating these procedural rights may result in the harm identified by Congress, it does not result in such an injury on its own, unlike the procedural violations at issue in Akins and Public Citizen. Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 21 of 29 PageID: 629 18 Although the common law system traditionally provided redress for harms closely related to fraudulent or mistaken demands for payment, see Restatement (Second) of Torts § 525 (discussing fraudulent misrepresentation), the procedural harm of not receiving informational disclosures from a debt collector is not closely related to any traditional bases for relief. Thus, the Court should find a violation of FDCPA section 1692g(a) does not, by itself, constitute an intangible harm that satisfies the injury-in-fact requirement. See Spokeo, 136 S. Ct. at 1549-50; Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S. Ct. 1142 (2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”); In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 2016 WL 3513782, at *8 (3d Cir. 2016) (“What a plaintiff cannot do, according to the Court [in Spokeo], is treat a ‘bare procedural violation ... [that] may result in no harm’ as an Article III injury-in-fact.”); Aranda v. Caribbean Cruise Line, Inc., No. 12 C 4069, 2016 U.S. Dist. LEXIS 111828, 2016 WL 4439935, at *5 (N.D. Ill. Aug. 23, 2016) (“The Supreme Court’s point in Spokeo was not that a statutory violation cannot constitute a concrete injury, but rather that where the bare violation of a statute conferring a procedural right could cause a congressionally identified harm or material risk of harm and just as easily could not, it is not sufficient simply to allege that the statute at issue was violated.”). Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 22 of 29 PageID: 630 19 Violations of the FDCPA disclosure requirements in section 1692g(a)(4) or (5) can result in concrete injuries. However, as the Provo court makes clear, they often cause no injury at all. Here, like the plaintiffs in Provo, Plaintiff alleges no injury. Instead, her complaint is that Defendant did not make certain disclosures contained in sections 1692g(a)(4) and (5). Such a bare procedural violation alone does not constitute an intangible harm that satisfies the injury-in-fact requirement. Following Spokeo, the district court in Sartin v. EKF Diagnostics, Inc., 2016 U.S. Dist. LEXIS 86777, 2016 WL 3598297, at *3 (E.D. La. July 5, 2016), dismissed claims under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 (“TCPA”), under Rule 12(b)(1) based on, once again, a finding of lack of standing where, as here, Plaintiff alleged no more than a statutory violation. Id. In Sartin, and similar in content, although more briefly stated, the court found the plaintiff’s only reference within his complaint “to any kind of injury appears in a single sentence, which states that defendants’ failure to comply with the TCPA’s requirements ‘caus[ed] Plaintiff and Plaintiff Class to sustain statutory damages.’” Id. To be sure, dismissal of claims alleging no more than statutory violations, as the plaintiff in Spokeo claimed and as Plaintiff asserts in the case at bar, have come quickly and consistently in light of the Supreme Court’s clear ruling based on facts quite similar to those rejected in Spokeo. See also Stoops v. Wells Fargo Bank, N.A., Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 23 of 29 PageID: 631 20 2016 U.S. Dist. LEXIS 82380, 2016 WL 3566266, at *9 (W.D. Pa. June 24, 2016) (Gibson, J.) (dismissing TCPA claims in light of Spokeo where plaintiff failed to plead any injury beyond a statutory violation). In Dolan v. Select Portfolio Servicing, No. 03-CV-3285 (PKC) (AKT), 2016 U.S. Dist. LEXIS 101201 (E.D.N.Y. Aug. 2, 2016) (Chen, J. presiding), addressing standing to sue for alleged violations of various provisions of 12 U.S.C. §§ 2601- 2617, the Real Estate Settlement Procedures Act (“RESPA”), the court was required to apply the distinction between statutorily-granted standing for public interest causes of action as opposed to individual claims, such as those advanced by Plaintiff in the instant case, as differentiated in Spokeo. In a well-reasoned and well-supported opinion, the court in Dolan explained that Spokeo affirms “the principle that a claim of a bare procedural statutory violation will be insufficient to confer standing, except in situations where Congress clearly intended to create a right to bring suit regardless of the existence or non-existence of actual harm, such as the Supreme Court found with respect to the statutes at issue in Public Citizen and Akins.” Dolan, at *24. This important distinction is clear from the Supreme Court’s majority opinion in Spokeo as well as Justice Thomas’ more thorough explication on the issue of public interest standing – which is not an issue in the instant case – in his concurring opinion. Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 24 of 29 PageID: 632 21 Specifically, in Dolan the Court distinguished between Congress’ intent to create such public standing for claims under 12 U.S.C. § 2607, because that provision was clearly intended to benefit the public at large to create such a right, whereas claims under 12 U.S.C. § 2605 are for individual, not public, harms, similar to those of which Plaintiff complains here under the FDCPA. Specifically, the Dolan Court explained: [i]n contrast to Section 2607, the conduct that Section 2605 seeks to regulate does not implicate the type of diffuse, intangible injury at issue in Akins and Public Citizen, but rather seeks to redress actual damages caused by the failure of one private party, i.e., a loan servicer, to provide specific information to another private party, i.e., a borrower. Dolan, at *16. Hence, and as required in light of Spokeo, the Dolan court held the plaintiff lacked standing to pursue claims brought under § 2605 of the statute in the absence of anything more than an asserted violation of the notification requirements of the statute, a claim distinctly similar to Plaintiff’s claim in the instant case. As the Dolan opinion makes quite clear, where, as in the case at bar, a plaintiff alleges only a violation of an individual right to a notice – but absolutely no resulting actual injury caused by an alleged failure – there simply is no standing. This point is indeed obvious from the Supreme Court’s opinion, including Justice Ginsburg’s dissenting opinion, in Spokeo, as no writer suggested, as Plaintiff posits here, the Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 25 of 29 PageID: 633 22 simple question of whether a notice statute may have been violated. In the instant case, the FDCPA provision at issue presents the same type of individual protection as § 2605 of RESPA and the FCRA provision raised by the plaintiff in Spokeo. As Spokeo, and Dolan, make clear, in such a case, there is no standing. Indeed, recognizing the distinction the Supreme Court drew in Spokeo, as explained in greater detail in Justice Thomas’ concurring opinion, the Dolan court specifically criticized the dicta in the Eleventh Circuit’s opinion in Church1, which clearly fails to follow Spokeo’s mandate. Explaining the inaccurate conclusion stated by the panel in dicta in Church, which appears to have been based upon the very logic applied by the Ninth Circuit and rejected by the Supreme Court, the judge in Dolan explained that she: respectfully disagrees with [the decision in Church], based on this Court’s conclusion that the cases cited in Spokeo as examples of intangible harm sufficient to confer standing, i.e., Akins and Public Citizen, involved interests of much greater and broader significance to the public than those at issue in Church. ... In short, the Court rejects the view that Spokeo established the proposition that every statutory violation of an “informational” right “automatically” gives rise to standing. Dolan, at fn. 7 (emphasis in original). 1 Church v. Accretive Health, Inc., 2016 U.S. App. LEXIS 12414 (11th Cir. July 6, 2016). Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 26 of 29 PageID: 634 23 The Supreme Court took the exact same position in Spokeo; otherwise, it would not have criticized the Ninth Circuit’s application of the same logic in reversing that Court’s decision on the very issue and, based on the logic in Church, would have found standing. Here, Plaintiff alleges no more than hypothetical, procedural violations of a federal statute without any showing that the hypothetical violations caused Plaintiff harm or any material risk of harm. Tellingly, and just like the plaintiff in Sartin, Plaintiff fails to provide any specific information in her Complaint regarding any harm, if any, that has befallen her so as to demonstrate an actual injury and, thus, standing. Instead, Plaintiff suggests harm from no more than the possibility of a violation of the FDCPA. This gap is most apparent, and the lack of concrete injury becomes undeniable as, within her own Complaint, Plaintiff asserts, “The least sophisticated consumer could certainly interpret [Defendant]’s letter to Plaintiff to mean that she would obtain verification of the debt or the identity of the original creditor by contacting Defendant at the telephone number provided.” Complaint, Dkt. 1, ¶ 44 (emphasis added). In this regard, Plaintiff’s suggestion of “injury” is even more hypothetical, and less concrete, than that suggested by the plaintiff in Spokeo and rejected by the Supreme Court. The statement of mere potential injury – particularly expressed as such – is clearly not the sort of “concrete” injury necessary to seek redress in federal court. Spokeo, 136 S. Ct. at 1549. Accordingly, Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 27 of 29 PageID: 635 24 Plaintiff’s motion for class certification should be denied in the first instance because she lacks standing to bring suit. Having failed to allege a concrete and particularized injury as a result of any alleged FDCPA violation, Plaintiff’s claims are insufficient to provide her Article III standing. Consequently, Plaintiff’s Complaint should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20, 96 S. Ct. 1917 (1976) (“That a suit may be a class action ... adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’”) (quoting Warth, 422 U.S. at 502). CONCLUSION For the reasons stated herein, Defendant GC Services Limited Partnership respectfully requests that its motion to dismiss be granted in its entirety, together with such other and further relief as this Court deems just and proper. Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 28 of 29 PageID: 636 25 Dated: May 17, 2017 Respectfully submitted, New York, New York By: /s/ Jeffrey Spiegel Jeffrey Spiegel Lewis Brisbois Bisgaard & Smith LLP 77 Water Street, 21st Floor New York, New York 10005 Telephone: (646) 783-1703 Fax: (212) 232-1399 Jeffrey.Spiegel@lewisbrisbois.com -and- William S. Helfand (admitted pro hac vice) Lewis Brisbois Bisgaard & Smith LLP 24 Greenway Plaza, Ste. 1400 Houston, Texas 77046 Telephone: (713) 659-6767 Attorneys for Defendant, GC Services Limited Partnership Case 2:15-cv-06027-ES-JAD Document 44-1 Filed 05/18/17 Page 29 of 29 PageID: 637 4823-5556-4360.1 Page 1 of 1 Jeffrey Spiegel Lewis Brisbois Bisgaard & Smith LLP 77 Water Street, 21st Floor New York, New York 10005 Telephone: (646) 783-1703 Fax: (212) 232-1399 Jeffrey.Spiegel@lewisbrisbois.com Attorneys for Defendant, GC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself and all others similarly situated, Plaintiff, - v. - GC SERVICES LIMITED PARTNERSHIP, Defendant. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY 2:15-cv-06027-ES-JAD CERTIFICATE OF SERVICE I hereby certify that on May 17, 2017, the Notice of Motion to Dismiss, Defendant GC Services Limited Partnership’s Brief in Support of its Motion to Dismiss, and Proposed Order were served on Plaintiff via ECF to: Ryan L. Gentile Law Offices of Gus Michael Farinella PC 110 Jericho Turnpike, Ste. 100 Floral Park, New York 11001 I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: May 17, 2017 /s/ Jeffrey Spiegel Jeffrey Spiegel Case 2:15-cv-06027-ES-JAD Document 44-2 Filed 05/18/17 Page 1 of 1 PageID: 638 4832-4049-0043.1 Jeffrey Spiegel Lewis Brisbois Bisgaard & Smith LLP 77 Water Street, 21st Floor New York, New York 10005 Telephone: (646) 783-1703 Fax: (212) 232-1399 Jeffrey.Spiegel@lewisbrisbois.com Attorneys for Defendant, GC Services Limited Partnership RUKHSANA KAUSAR, on behalf of herself and all others similarly situated, Plaintiff, - v. - GC SERVICES LIMITED PARTNERSHIP, Defendant. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY 2:15-cv-06027-ES-JAD ORDER Defendant GC Services Limited Partnership, seeking an Order granting its motion to dismiss the Complaint of Plaintiff (the “Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(1), and the Court having considered all papers submitted in connection with the Motion and good cause appearing; IT IS, on this ____ day of ______________, 2017, ORDERED that this action is dismissed with prejudice on the grounds that this Court lacks subject matter jurisdiction because Plaintiff lacks standing. ______________________________ ESTHER SALAS, U.S.D.J. Case 2:15-cv-06027-ES-JAD Document 44-3 Filed 05/18/17 Page 1 of 1 PageID: 639