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Grandberry v. Medical-Commercial Audit, Inc.

United States District Court, E.D. Missouri, Eastern Division

May 3, 2019

NAKEITRA GRANDBERRY, Plaintiff,
v.
MEDIDAL-COMMERCIAL AUDIT, INC., d/b/a MCA MANAGEMENT, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This 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.

         Plaintiff 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.

         Plaintiff 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.

         Motion to Dismiss Violation II

         Defendant moves to dismiss Plaintiff's second claim of a violation of the FDCPA.

         Defendant 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.

         A Rule 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.' ”).

         A party 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.

         In the 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 Plaintiff's deposition.

         In 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 element. Id.

         Here, 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 1549).

         Further, 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.

         The 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 that ...


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