United States District Court, E.D. New York
SHARON AIKENS, on behalf of herself and all others similarly situated, Plaintiff,
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.
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
LEONARD D. WEXLER United States District Judge.
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.
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.
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.
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
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.
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)).