United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's Motion For
Summary Judgment, [Doc. No. 26], Defendant's Rule
12(b)(1) Partial Motion to Dismiss, [Doc. No. 27], and
Defendant's Motion for Summary Judgment, [Doc. No. 29].
Plaintiff has supplemented her Motion for Summary Judgment,
with leave of Court to do. For the reasons set forth below,
the Motions are denied.
filed this action against Defendant for alleged violations of
the Fair Debt Collections Practices Act,
(“FDCPA”), 15 U.S.C. § 1692, et
seq. Plaintiff claims she received a debt collection
letter from Defendant threatening to report her account to
the credit bureaus if Defendant did not hear from her in 15
days from the date of the notice. Plaintiff alleges the
statement was abusive and coercive and was made with the
intent of scaring Plaintiff into making payment, and that the
statement was false and misleading because Defendant never
reported the debt to the credit bureaus.
also alleges that Defendant charges customers a $5.00
convenience fee for payments made through Defendant's
website. Plaintiff alleges the convenience fee was not
authorized by the agreement creating the debt or permitted by
law, and that the addition of the fee was an attempt to
collect an amount not owed by Plaintiff.
to Dismiss Violation II
moves to dismiss Plaintiff's second claim of a violation
of the FDCPA.
asserts that Plaintiff has failed to establish that she has
standing. Defendant asserts that Plaintiff has not alleged
facts to show that she suffered an injury-in-fact.
12(b)(1) motion may be brought as either a “factual
attack” or a “facial attack.” Jackson
v. Abendroth & Russell, P.C., 207 F.Supp.3d 945, 950
(S.D. Iowa 2016) (citing Stalley v. Catholic Health
Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007));
see also Osborn v. United States, 918 F.2d 724, 729
n.6 (8th Cir. 1990) (“A Court deciding a motion under
Rule 12(b)(1) must distinguish between a ‘facial
attack' and a ‘factual attack.' ”).
makes a facial attack by challenging the sufficiency of the
pleadings. In evaluating such a challenge, a “court
restricts itself to the face of the pleadings and the
non-moving party receives the same protections as it would
defending against a motion brought under Rule
12(b)(6).” Osborn, 918 F.2d at 729 n.6
(internal citations omitted). In deciding a facial challenge,
the Court looks only at the pleadings and essentially uses
the Rule 12(b)(6) standard to determine whether the complaint
states a facially plausible jurisdictional claim.
Id.; Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (stating the post-Twombly standard for
Rule 12(b)(6)). When a complaint is facially challenged on
jurisdiction, all of the factual allegations in the complaint
are presumed to be true. Titus v. Sullivan, 4 F.3d
590, 593 (8th Cir. 1993). In contrast, if the moving party
mounts a factual attack, the Court will look beyond the
pleadings and consider extrinsic evidence and the
“non-moving party does not have the benefit of 12(b)(6)
safeguards.” Osborn, 918 F.2d at 729 n.6.
present case, Defendant does not state whether it intends to
present a facial or factual jurisdictional attack.
Nevertheless, upon review of the instant motion and
supporting brief, it appears that Defendant ultimately makes
a factual attack, since Defendant has included portions of
order to demonstrate that she has standing, Plaintiff must
show that she has “(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.” Spokeo, Inc. v.
Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547 (2016). As
this case is at the pleading stage, Plaintiff must clearly
have alleged facts demonstrating the satisfaction of each
the parties' main point of contention concerns the
“injury-in-fact” element. “To establish
injury in fact, a plaintiff must show that he or she suffered
‘an invasion of a legally protected interest' that
is ‘concrete and particularized' and ‘actual
or imminent, not conjectural or hypothetical.'”
Id. at 1548 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). “For an
injury to be particularized, it must affect the plaintiff in
a personal and individual way.” Id. (internal
quotations omitted). “A ‘concrete' injury
must be ‘de facto'; that is, it must
actually exist.” Id. (citing Black's Law
Dictionary 479 (9th ed. 2009)). To be “concrete,
” an injury must be real and not abstract. Id.
That being said, “concrete” does not necessarily
mean “tangible” and intangible injuries can be
concrete. Id. at 1549. “In determining whether
an intangible harm constitutes injury in fact, both history
and the judgement of Congress play important roles.”
Id. “History contributes to a finding of
concreteness when the [alleged] intangible injury is closely
related to a traditional ‘basis for a lawsuit in
English or American courts.'” Jackson, 207
F.Supp.3d at 952 (quoting Spokeo, 136 S.Ct. at
Congress may identify and elevate concrete intangible
injuries to the status of legally cognizable injuries
“that were previously inadequate in law.”
Spokeo, 136 S.Ct. at 1549. However,
“Congress' role in identifying 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.”
Id. As the Court stated in Spokeo,
“Article III standing requires a concrete injury even
in the context of a statutory violation.” Id.
Accordingly, a plaintiff cannot “allege a bare
procedural violation, divorced from any concrete harm, and
satisfy the injury-in-fact requirement of Article III.”
Id. That being said, the Spokeo Court
recognized that “the violation of a procedural right
granted by statute can be sufficient in some circumstances to
constitute injury in fact” and, in such a case, a
plaintiff “need not allege any additional harm
beyond the one Congress has identified.” Id.
Eighth Circuit has applied Spokeo and found that a
plaintiff that had asserted “‘a bare procedural
violation [of the Cable Communications Policy Act], divorced
from any concrete harm' ” had failed to allege an
injury-in-fact as required for Article III standing.
Braitburg v. Charter Commc'ns, Inc., 836 F.3d
925, 930 (8th Cir. 2016) (quoting Spokeo, 136 S.Ct.
at 1549). Specifically, the Eighth Circuit noted that the
Braitburg plaintiff alleged only that the defendant
“violated a duty to destroy personally identifiable
information by retaining certain information longer than the
company should have kept it” but had not alleged that
the defendant had “disclosed the information to a third
party, that any outside party [had] accessed the data, or