Roberts et al v. Ditech Financial, Llc et al

First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Lack of Subject Matter Jurisdiction with Brief In Support

N.D. Ga.September 13, 2016

1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION URSULA ROBERTS and * LEE ROBERTS * Plaintiffs, * * * VERSUS * Civil Action No.: 1:16-cv-1960 * * DITECH FINANCIAL, LLC f/k/a * GREEN TREE SERVICING, LLC; * and DOES 1-10 inclusive, * Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Defendant Ditech Financial, LLC formerly known as Green Tree Servicing, LLC (“Ditech”) through counsel, moves to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted and Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. In support of this Motion, Ditech relies upon its Memorandum in Support of Motion to Dismiss and all pleadings of record. [SIGNATURE ON FOLLOWING PAGE] Case 1:16-cv-01960-SCJ Document 4 Filed 09/13/16 Page 1 of 3 2 This 13 th day of September, 2016. TROUTMAN SANDERS LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308-2216 Telephone: 404-885-3000 Facsimile: 404-885-3900 marlee.waxelbaum@troutmansanders.com mark.windham@troutmansanders.com /s/ Marlee J. Waxelbaum Marlee J. Waxelbaum Georgia Bar No. 155779 Mark J. Windham Georgia Bar No. 113194 Counsel for Ditech Financial, LLC f/k/a Green Tree Servicing, LLC Case 1:16-cv-01960-SCJ Document 4 Filed 09/13/16 Page 2 of 3 3 29162660 CERTIFICATE OF SERVICE, FONT AND MARGINS I certify that I have on this day filed and served the within and foregoing Motion to Dismiss Plaintiffs’ Complaint with Memorandum in Support using the Court’s ECF system, which will then send a notification of such filing (NEF) to the following: Counsel for Plaintiffs Joseph P. McClelland, Esq. P.O. Box 100 Jackson, Georgia 30233 I further certify that I prepared this document in 14 point Times New Roman font and complied with the margin and type requirements of this Court. This 13 th day of September, 2016. /s/ Marlee Waxelbaum Marlee Waxelbaum Georgia Bar No. 155779 Case 1:16-cv-01960-SCJ Document 4 Filed 09/13/16 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION URSULA ROBERTS and * LEE ROBERTS * Plaintiffs, * * * VERSUS * Civil Action No.: 1:16-cv-1960 * * DITECH FINANCIAL, LLC f/k/a * GREEN TREE SERVICING, LLC; * and DOES 1-10 inclusive, * Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Defendant Ditech Financial, LLC formerly known as Green Tree Servicing, LLC (“Ditech”) through counsel, moves to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted and Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction as set forth herein. FACTUAL AND PROCEDURAL BACKGROUND 1 1 Ditech denies all of the assertions in the Complaint, although their material allegations are taken as true for purposes of this motion. See Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Nonetheless, the Court may consider the documents attached to the instant Motion because they are referenced in the Complaint and are central to Plaintiff’s claims. See Horsley v. Feldt, 304 F.3d 1125, 1134-35 (11th Cir. 2002). In addition, “A district court may take judicial Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 1 of 17 - 2 - Plaintiff Lee Roberts is the borrower under a loan made on or about May 19, 2000, for the purchase of a manufactured home (the “Loan”), for which Ditech is the loan servicer. Plaintiffs Lee and Ursula Roberts (“Plaintiffs”) contend that, in or around early 2012, Ditech began calling their shared cellular (“cell”) phone ending in -8147 without Plaintiffs’ permission. Compl. at ¶¶ 9, 11-13. Plaintiffs allege that Plaintiff Ursula “advised [Ditech] not to call the cell phone[,]” but that Ditech continued to call the cell phone. Id. at ¶¶ 14-15. Next, Plaintiffs allege that while Plaintiffs Lee gave Ditech permission to call the cell phone in early 2014, Plaintiffs Ursula revoked authority to call the cell phone the following day, but that Ditech continued to call the cell phone. Id. at ¶¶ 16-18. Plaintiffs allege that at least some of these calls were made to the cell phone number at issue via an Automated Telephone Dialer System (“ATDS”) Id. at ¶¶ 10, 23-26. Plaintiffs filed their Complaint in this Court on June 14, 2016, alleging violations of the Telephone Consumer Protection Act (“TCPA), 47 U.S.C. § 227 et notice of certain facts without converting a motion to dismiss into a motion for summary judgment. . . . Public records are among the permissible facts that a district court may consider.” Universal Express, Inc. v. Secs. and Exch. Comm’n., 177 F. App’x 52, 53 (11th Cir. 2006) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999) and Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir. 2003) (“The district court may take judicial notice of public records and may thus consider them on a motion to dismiss.”)); see also Halmos v. Bomardier Aerospace Corp., 404 F. App’x 376, 377 (11th Cir. 2010) (“matters of public record,” including prior filings in civil actions may be considered upon motion to dismiss). Therefore, this Court may take judicial notice of the public court documents attached to this Motion. Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 2 of 17 - 3 - seq. and the Georgia Fair Business Practices Act (“GFBPA”), O.C.G.A. § 10-1- 390, et seq., in addition to claims for “Invasion of Privacy,” “Unreasonable Collection Practices,” “Right to be Left Alone,” and for punitive damages. ECF 1 (the “Complaint” or “Compl.”) STANDARD OF REVIEW “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 8(a)(2) (pleading must contain “short and plain statement of the claim showing that the pleader is entitled to relief”). A claim is “factually plausible” when the claimant pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1949-50. (emphasis added). Indeed, "[l]egal conclusions without adequate factual support are entitled to no assumption of truth," Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 3 of 17 - 4 - Additionally, Rule 12(b)(1) authorizes the Complaint to be dismissed on the basis that the complaint on its face fails to allege grounds for federal subject matter jurisdiction. Morrison v. Amway Corp., 323 F.73d 920, 925 (11th Cir. 2003). The Plaintiffs always bears the burden of proving subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Once challenged, the Plaintiffs must come forth with specific evidence to meet its burden. Underwriters at Lloyds, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010). ARGUMENT AND CITATION OF AUTHORITY I. Plaintiffs Fail State a TCPA Claim For Which Relief Can Be Granted. A. Following Spokeo, Plaintiffs Cannot Meet Their Burden to Prove They Have Article III Standing Because They Fail to Allege They Suffered an Injury in Fact. The United States Supreme Court issued its opinion in Spokeo v. Robins, 2016 US LEXIS 3046 (May 16, 2016), altering standing requirements for a plaintiff attempting to assert technical violations of a federal statute. The Spokeo court explained that one of the fundamental requirements of Article III standing is that a plaintiff must suffer an “injury in fact” and a plaintiff that has not suffered an “injury in fact” lacks standing to pursue a technical violation of a federal statute, notwithstanding the existence of a private right of action under the statute’s plain language. As the Court explained, and as has long been the law, “Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 4 of 17 - 5 - plaintiff who would not otherwise have standing.” Spokeo, 2016 U.S. LEXIS 3046, *12-13 (emphasis added); citing Raines v. Byrd, 521 U. S. 811, 820, n. 3 (1997). As a result of the Spokeo decision, Plaintiffs do not have the requisite standing to pursue a claim against Defendant under the TCPA because, as they admit, they have not suffered an injury in fact. Thus, because Plaintiffs lack Article III standing, this Court lacks subject matter jurisdiction, and pursuant to Federal Rule of Civil Procedure 12(h)(3), the claim should be dismissed. Plaintiffs maintain the burden to prove they have Article III standing. Lewis v. Casey, 518 U.S. 343, 357 (1996). “Article III, Section 2 of the United States Constitution restricts federal court jurisdiction to resolving cases and controversies. Standing to sue or defend is an aspect of the case or controversy requirement.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997); U.S. Const. Art. III, § 2, cl. 1. To meet the “case and controversy” requirement of Article III a Plaintiffs must allege an “injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it have been traditionally understood.” Spokeo, 2016 U.S. LEXIS 3046, *11. “Injury in fact is a constitutional Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 5 of 17 - 6 - requirement, and ‘it is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a Plaintiffs who would not otherwise have standing.’” Spokeo, 2016 U.S. LEXIS 3046, *12-13; citing Raines v. Byrd, supra, 521 U.S. at 820, n. 3; Summers v. Earth Island Institute, 555 U.S. 488, 497 (2009); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (“In no event...may Congress abrogate the Art. 111 minima.”). In Spokeo, the plaintiff alleged a violation of the Fair Credit Reporting Act by claiming that the defendant disseminated false information about him. While this was a violation of the statute, the Court held that the violation did not, on its own, satisfy the injury requirement. Spokeo, supra, 2015 LEXIS 3046. To qualify as a party with standing to litigate, a person must show, first and foremost, “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent.” Lujan, supra, 504 U.S. at 560. As the Spokeo court explained: In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA'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. In addition, not all inaccuracies cause harm or present any material risk of harm. Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 6 of 17 - 7 - Spokeo, supra, 2016 U.S. LEXIS 3046, *17-18 (emphasis added). The TCPA permits a private right of action to either: (1) enjoin the violation; (2) recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (3) both. See 47 U.S.C § 227(b)(3)(A), (B), and (C). Traditionally, plaintiffs have interpreted this statute to confer a statutory right, and, therefore, an automatic injury when the statute is violated even if the plaintiff never suffered an actual monetary loss. The Supreme Court in Spokeo rejects that proposition in the context of Article Ill standing: Congress' role in identifying and elevating intangible harms does not mean that a Plaintiffs 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. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, [Plaintiffs] could not, for example, allege a bare procedural violation divorced from any concrete harm, and satisfy the injury-in-Fact requirement of Article III. Spokeo, 2016 U.S. LEXIS 3046, *16 (emphasis added); see also Summers, supra, 555 U.S. at 496 (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation...is insufficient to create Article III standing”); Lujan, supra, 504 U.S. at 572. “[T]he injury-in-fact requirement requires a Plaintiffs to allege an injury that is both ‘concrete and particularized.’” Spokeo, 2016 U.S. LEXIS 3046, *5. Here, Plaintiffs cannot satisfy the injury-in-fact requirement. Plaintiffs allege Ditech violated the TCPA because its representatives called Plaintiffs after they Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 7 of 17 - 8 - revoked their consent to be called on their cell phone, possibly using an ATDS. Plaintiffs do not sufficiently plead allegations that they suffered any actual injury. Instead, Plaintiffs simply allege that Defendants violated the statute by calling them via the ATDS after Plaintiffs revoked consent and they are therefore entitled to damages. Compl. at ¶ 28. They do not include any allegations related to the number of calls, the timing of the calls, or that the calls prevented Plaintiffs from using their phones for other purposes. This is precisely the type of intangible injury that the Spokeo Court and subsequent district courts have rejected. See Romero v. Dep’t Stores Nat’l Bank, No. 15-cv-193, 2016 U.S. Dist. LEXIS 110889, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016). The Romero decision is instructive. In Romero, the court held that plaintiff, who had received 272 phone calls from a debt collector, could not establish standing under the TCPA because she could not demonstrate that any individual phone call had caused sufficient lost time, aggravation, and distress to constitute a concrete injury. Id. at *4. Thus, because Plaintiffs have no “actual monetary loss” as required by the TCPA, they have no Article III standing. Just like the Plaintiffs in Spokeo and Romero, Plaintiffs here have only alleged a bare procedural violation. 2 Even if Plaintiffs’ 2 To the extent Plaintiffs attempt to argue that a violation of their privacy is the injury, they still cannot show any sort of concrete injury. The statute does not provide for emotional distress damages, but only for "actual monetary loss from such a violation." 47 U.S.0 § 227(b)(3)(B). Plaintiffs cannot establish which, if any, of the phone calls invaded their private space. Plaintiffs likewise cannot show Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 8 of 17 - 9 - allegations were true (that Defendants called their cell phone via ATDS after they revoked their consent), they have no injury-in-fact and therefore, cannot show the concreteness element of Article III standing. Specifically, they cannot show any “concrete interest that is affected by the deprivation” of their procedural right and therefore, have no Article III standing.” Summers, supra, 555 U.S. at 496. Thus, Plaintiffs have no standing to bring a TCPA claim against the Defendants and their claim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). B. Plaintiffs’ Fails to Plead a Sufficient Violation of the TCPA Additionally, Plaintiffs fail to plead sufficient facts so as to substantiate their TCPA claim. Eleventh Circuit courts have found that such insufficiencies merit dismissal: “The Court finds that [Plaintiffs’ threadbare] allegations merely follow the language of the statute and are consistent with defendant's liability. Furthermore, Plaintiffs have failed to identify the nature of the calls; thus, it is impossible to know if the automated calls were unlawful or exempt by rule or order.” Speidel v. JP Morgan Chase & Co., 2014 U.S. Dist. LEXIS 18437, *5-6 (M.D. Fla. Feb. 13, 2014). Similar to Speidel, Plaintiffs in this case have failed to provide any identifying information regarding the nature of the calls at issue. Therefore, like in Speidel, Plaintiffs’ TCPA claim is due to be dismissed. that any alleged invasion of privacy caused them any "actual monetary loss" as required by the statute. Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 9 of 17 - 10 - II. Plaintiffs’ GFBPA Claim Must Be Dismissed Preliminarily, Plaintiffs’ GFBPA claim is time-barred. The GFPBA provides that no action may be brought “[m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation.” O.C.G.A. § 10-1-401. In the instant case, the last concrete date contained in Plaintiffs’ allegations relates to calls allegedly made in “early 2014,” and this lawsuit was not filed until June 14, 2016. See Compl. at ¶ 16. Accordingly, Plaintiffs’ GFPBA claim is prohibited under the GFPBA statute of limitations. Therefore, such allegations fail to state a claim for which relief can be granted and the Court should dismiss such Plaintiffs’ GFPBA claim with prejudice. Additionally, O.C.G.A. § 10-1-391 states that “The purpose of this part shall be to protect consumers and legitimate business enterprises from unfair or deceptive practices in the conduct of any trade or commerce in part or wholly in the state.” Nothing about Plaintiffs’ allegations indicates how alleged phone calls made by Ditech are unfair or deceptive. Moreover, the only treatment of telephone calls under the Act is in relation to telemarketing, yet Plaintiffs do not allege that Defendant’s calls were for the purpose of telemarketing. As such, Plaintiff’s GFPBA is ripe for dismissal as Plaintiffs fail to state a GFPBA claim for which relief can be granted. Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 10 of 17 - 11 - III. Plaintiffs Fail to Plead Sufficient Facts to Support a Claim for Invasion of Privacy Plaintiffs next broadly claim that Ditech “intentionally interfered, physically or otherwise, with the solitude seclusion and or private concerns or affairs of the Plaintiffs.” Compl. at ¶ 37. Plaintiffs further allege that in so doing, Ditech’s “highly offensive conduct in the course of collecting a debt” “caused harm to Plaintiffs’ emotional wellbeing.” Id. at ¶ 38. Therefore, while there are four disparate torts under the common name of invasion of privacy under Georgia law, Plaintiffs appear to only allege the tort of intrusion upon seclusion or solitude. See generally Bullard v. MRA Holding, LLC, 292 Ga. 748, 751-52 (2013). Georgia courts have held that the “unreasonable intrusion” aspect of the invasion of privacy involves an intrusion into a person's private concerns that would be offensive or objectionable to a reasonable person. Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 705 (409 SE2d 835) (1991) (internal citations omitted). Although highly personal questions or demands by “a person in authority” may be regarded as an intrusion on psychological solitude and therefore constitute an invasion of privacy, “there are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.” Id. (citations and punctuation omitted.) However, the nature of the intrusion need not be determined by this Court, as, in order to substantiate such an invasion of privacy claim, Plaintiffs must allege facts that they were Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 11 of 17 - 12 - subjected to “a physical intrusion analogous to a trespass, as would be required to recover for an intrusion upon seclusion.” Davis v. Emmis Publ'g Corp., 244 Ga. App. 795, 797 (Ga. Ct. App. 2000). See also Kobeck v. Nabisco, Inc., 166 Ga. App. 652, 654 (305 S.E.2d 183) (Ga. Ct. App. 1983) (“…Georgia cases require that the intrusion must be physical, analogous to a trespass”); Cox Communications v. Lowe, 173 Ga. App. 812, 814 (Ga. Ct. App. 1985) (“…a physical intrusion analogous to a trespass [is] required to recover for an intrusion upon seclusion…”). Plaintiffs do not specify any particular conduct by Ditech that allegedly intruded upon their seclusion, let alone do they allege the type of “unreasonable” behavior that Georgia courts have found necessary to substantiate an intrusion upon seclusion claim. See Cabaniss v. Hipsley, 114 Ga. App. 367, 371, 151 S.E.2d 496, 500 (Ga. Ct. App. 1966) (listing cases so as to demonstrate the type of unreasonable conduct required to substantiate an intrusion upon seclusion claim including cases where there was an intrusion into Plaintiffs’ hotel room by the house detective who mistakenly believed that unauthorized people were present, there was an unauthorized entry into Plaintiffs’ stateroom, where there was an unauthorized and unlawful entry into Plaintiffs’ house, where eavesdropping equipment was placed in Plaintiffs’ hospital room for the purpose of listening to their conversations with their husband and others, where the owner of the property came upon the premises occupied by Plaintiffs and threatened eviction in a loud Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 12 of 17 - 13 - and profane manner in the presence of others, where there was a mistaken identity in the making of an arrest without a warrant, and where defendant, wrongfully suspecting Plaintiffs of having stolen certain goods, went to his house, broke in and removed the goods). Indeed, while a complaint need not include elaborately detailed factual allegations, it must contain “more than a formulaic recitation of the elements of a legal cause of action.” Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U. S. 265, 286 (1986) (stating that on motion to dismiss, court is “not bound to accept as true a legal conclusion couched as a factual allegation”). Plaintiffs’ invasion of privacy claim is exactly the type of formulaic recitation of the elements of a legal cause of action that the Supreme Court sought to eliminate in Twombly and utterly fails to allege the requisite intrusion necessary to substantiate their invasion of privacy claim. As Plaintiffs have failed to make any factual allegations to support their invasion of privacy claim, their claim must be dismissed. IV. Plaintiffs’ Claims for “Unreasonable Collection Practices” and “Right to Be Left Alone” Fail to State a Claim Put simply, Plaintiffs’ claims for “unreasonable collection practices,” Compl. at ¶¶ 38-42, and “right to be left alone,” id. at ¶¶ 43-47, are characteristic of what the Eleventh Circuit have termed a “shotgun pleading.” The Eleventh Circuit has identified several characteristics that typify shotgun pleadings including complaints that “contain[] several counts, each one incorporating by reference the Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 13 of 17 - 14 - allegations of its predecessors, leading to a situation where most of the counts . . . contain irrelevant factual allegations and legal conclusions,” Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002), and combine “multiple claims together in one count,” Ledford v. Peeples, 568 F3d 1258, 1278 (11th Cir. 2009). Like the complaint in Strategic Income Fund, Plaintiffs’ “invasion of privacy,” “unreasonable collection practices,” and “right to be left alone” claims all contain identical paragraphs that are inconsequential to the elements of some (if not all) of the relative causes of actions, to the extent those causes of action exist. 3 Compare Compl. at ¶ 38 with Id. at ¶ 44 and Id. at ¶ 49 (“Defendants intentionally caused harm to Plaintiff’s [sic] emotional wellbeing by engaging in highly offensive conduct in the course of collecting a debt.”); compare Id. ¶ 40 with Id. at ¶ 45 and Id. at ¶ 50 (“The intrusion by Defendants occurred in a way that would be highly offensive to a reasonable person in that position.”).The Eleventh Circuit has specifically instructed district courts to prohibit similar shotgun pleadings as fatally defective. B.L.E. ex rel. Jefferson v. Georgia, 335 F. App'x 962, 963 (11th Cir. 2009). These shotgun claims are subject to dismissal. See Guthrie v. Wells Fargo Home Mortg., N.A., 2014 U.S. Dist. LEXIS 102777, *22-23 (N.D. Ga. July 7, 2014) (dismissing 3 Ditech asserts that Plaintiffs’ claims for “unreasonable collection practices” and “right to be left alone” are actually not proper causes of action, do not exist, and, as Plaintiffs are represented by counsel, cannot be construed as anything other than what is asserted on the face of the Complaint. Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 14 of 17 - 15 - shotgun pleading because Plaintiffs’ shotgun Complaint was inadequately and improperly pled but allowing Plaintiffs to amend because they was pro se). Lastly, courts have found that “the right to be left alone” is synonymous with the combined “invasion of privacy” torts. See Harris v. Thigpen, 727 F. Supp. 1564, 1571 (M.D. Ala. 1990) (describing the conglomerate of the four ‘right to privacy’ torts as the right ‘to be left alone’”) (citing Restatement (Second) of Torts, § 652 B (1977); 62 Am.Jur.2d 718, Privacy § 26; Prosser, Torts 3rd ed., p. 832, § 112). As such, for all the same reasons addressed in Section III, supra, Plaintiffs’ “right to be left alone” claim should fail. V. Plaintiffs’ Claim for Punitive Damages Should Be Dismissed Plaintiffs’ claims for punitive damages and costs must be dismissed because their substantive claims fail. See , e.g., Andrew Lunsford Prop., LLC v. Davis, 257 Ga. App. 720, 722 (2002) (“Finally, the claims seeking attorney fees and punitive damages were properly dismissed as derivative of the other dismissed claims.”). Neither does Plaintiffs allege facts sufficient to support an award for punitive damages. See O.C.G.A. § 51-12-5.1 (“willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences”). Therefore, Plaintiffs’ request for punitive damages, costs, and fees must be dismissed for failure to state a claim. Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 15 of 17 - 16 - CONCLUSION For the foregoing reasons, Ditech Financial, LLC respectfully requests that this action and all claims herein be dismissed with prejudice, and for such other relief as is just and proper. This 13th day of September, 2016. TROUTMAN SANDERS LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308-2216 Telephone: 404-885-3000 Facsimile: 404-885-3900 marlee.waxelbaum@troutmansanders.com mark.windham@troutmansanders.com /s/ Marlee J. Waxelbaum Marlee J. Waxelbaum Georgia Bar No. 155779 Mark J. Windham Georgia Bar No. 113194 Counsel for Ditech Financial, LLC f/k/a Green Tree Servicing, LLC Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 16 of 17 - 17 - 29127635 CERTIFICATE OF SERVICE This is to certify that I have this date served a copy of the within and foregoing Memorandum in Support of Motion to Dismiss using the Court’s ECF system, which will then send a notification of such filing (NEF) to the following: Counsel for Plaintiffs Joseph P. McClelland, Esq. P.O. Box 100 Jackson, Georgia 30233 This 13th day of September, 2016. /s/ Marlee J. Waxelbaum Marlee J. Waxelbaum Case 1:16-cv-01960-SCJ Document 4-1 Filed 09/13/16 Page 17 of 17