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Aikens v. Portfolio Recovery Associates, LLC

United States District Court, E.D. New York

March 22, 2017

SHARON AIKENS, on behalf of herself and all others similarly situated, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

          THE AUSLAENDER FIRM, P.C. BY: JUSTIN ALAN AUSLAENDER, ESQ. Attorneys for Plaintiff.

          THOMPSON CONSUMER LAW GROUP, PLLC BY: MICHAEL ROLLAND, ESQ. Attorneys for Plaintiff.

          MCGUIRE WOODS LLP BY: DAVID L. HARTSELL, ESQ. SARAH A. ZIELINSKI, ESQ. MICHAEL VAN RIPER, ESQ. Attorneys for Defendant

          ORDER

          LEONARD D. WEXLER United States District Judge.

         Before the Court is Defendant's motion to dismiss this putative class action for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff opposes the motion. For the following reasons, Defendant's motion is granted and this action is dismissed, with prejudice.

         BACKGROUND

         Plaintiff, Sharon Aikens, owed a debt on a Capital One credit card, which was subsequently purchased by Defendant, Portfolio Recovery Associates ("PRA"). PRA then contacted Plaintiff in an attempt to collect on her debt.

         On or about March 11, 2015, Plaintiff and PRA entered into an oral agreement over the telephone, whereby PRA would automatically debit Plaintiffs checking account each month in the amount of $32.91 until her debt was satisfied. PRA began debiting Plaintiffs checking account in April 2015 and continues to do so to date.

         Plaintiff commenced the within putative class action on March 8, 2016, alleging that PRA violated the Electronic Funds Transfer Act ("EFTA"), 15 U.S.C. § 1693e(a), by failing to obtain Plaintiffs consent for the monthly automated electronic transfers in writing. Plaintiff alleges that PRA further violated the EFTA by failing to provide Plaintiff with a copy of her signed, written authorization. Plaintiff seeks statutory damages, as well as attorney's fees and costs.

         PRA now moves to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of jurisdiction, on the grounds that Plaintiff does not have standing to pursue this action because she has not suffered a "concrete injury, " as defined by the Supreme Court's holding in Spokeo, Inc. v. Robins.___ U.S.___, 136 S.Ct. 1540 (2016). Plaintiff opposes the motion.

         DISCUSSION

         I. Legal Standard

         A district court should dismiss a case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) where the court "lacks the statutory or constitutional power to adjudicate it." Makarova v. United States. 201 F.3d 110, 113 (2d Cir. 2000); see also Fed.R.Civ.P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction, the Court "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to Plaintiff[]." Wood v. GMC. No. CV 08-5224, 2010 U.S. Dist. LEXIS 96157, at *9 (E.D.N.Y. Aug. 23, 2010) (quoting J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004)) (additional citation omitted) (alteration in original). The Court may also "consider evidence outside the pleadings, such as affidavits" when determining whether it has jurisdiction. Stoothoff v. Apfel, No. 98 Civ. 5724, 1999 U.S. Dist. LEXIS 10459, at *1 n.1 (S.D.N.Y.July 7, 1999) (citing cases). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Wood. 2010 U.S. Dist. LEXIS 96157, at *9 (quoting Aurecchione v. Schoolman Transp. Svs., Inc.. 426 F.3d 635, 638 (2d Cir. 2005)).

         II. Articl ...


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