United States District Court, E.D. New York
Barshay Sanders, PLLC Attorneys for the Plaintiff By: David
M. Barshay, Esq. Craig B. Sanders, Esq., Of Counsel.
& Rees LLP Attorneys for the Defendant By: Ronald A.
Giller, Esq. Of Counsel.
MEMORANDUM OF DECISION & ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE
October 7, 2016, the Plaintiff Carole Balke commenced this
action against the Defendant Alliance One Receivables
Management, Inc., alleging that a debt collection letter sent
by the Defendant to the Plaintiff violated the provisions of
the federal Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
before the Court is a motion by the Defendant seeking to
dismiss the complaint under Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 12(b)(1), on the ground that
the Plaintiff lacks Article III standing. Alternatively, the
Defendant moves under Fed.R.Civ.P. 12(b)(6) to dismiss the
complaint for failing to state a plausible claim for relief.
before the Court is a cross-motion by the Plaintiff, seeking
leave to amend the complaint under Fed.R.Civ.P. 15(a).
reasons that follow, the Defendant's motion to dismiss is
denied in its entirety, and the Plaintiff's cross-motion
to amend is granted.
unspecified date, through TD Bank USA, N.A., the Plaintiff
obtained a credit card account at Target retail stores. Using
her Target credit card, the Plaintiff accrued an alleged debt
and then defaulted on the required monthly payments. Her
account was subsequently transferred to the Defendant, a debt
collector, for collection.
about December 7, 2015, the Defendant contacted the Plaintiff
by letter (the “Collection Letter”), which forms
the basis of this action.
turning to the sufficiency of the complaint, the Court first
addresses whether the Plaintiff has standing to maintain this
Standard under Fed.R.Civ.P. 12(b)(1)
‘A motion to dismiss for lack of subject-matter
jurisdiction under [Fed. R. Civ. P.] 12(b)(1) is the
appropriate mechanism for challenging a plaintiff's
constitutional standing to bring a particular claim.'
” Barnett v. Countrywide Bank, FSB, 60
F.Supp.3d 379, 385 (E.D.N.Y. 2014) (Spatt, J.)
(quoting Ali v. NYC DOT, Nos. 14-cv-312 &
14-cv-313, 2014 U.S. Dist. LEXIS 158331, at *2 (E.D.N.Y. Nov.
4, 2014)). Although this is the Defendant's motion, the
burden is on the Plaintiff, as the party seeking to invoke
the Court's jurisdiction, to establish that she has
standing, and by extension, that subject matter jurisdiction
exists. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
to Article III, § 2 of the United States Constitution,
the jurisdiction of the federal courts is limited to
‘Cases' and ‘Controversies, ' which
‘restricts the authority of the federal courts to
resolving ‘the legal rights of litigants in actual
controversies.' ' ” Lary v. Rexall Sundown,
Inc., 74 F.Supp.3d 540, 543-44 (E.D.N.Y. 2015) (quoting
Genesis Healthcare Corp. v. Symczyk, __ U.S. __, 133
S.Ct. 1523, 185 L.Ed.2d 636 (2013)) (quoting, in turn,
Valley Force Christian Coll. v. Arms United for
Separation of Church and State, Inc., 454 U.S. 464, 471,
102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).
“[s]tanding to sue, in the Constitutional sense,
‘is the showing by a plaintiff that his particular
grievance meets this standard, the ‘essence of which is
the presence of ‘injury in fact' suffered by the
plaintiff as a result of the defendant's actions.'
” Brady v. Basic Research, LLC, 101 F.Supp.3d
217, 227 (E.D.N.Y. 2015) (quoting Evans v. Hills,
537 F.2d 571, 591 (2d Cir. 1975)); see Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 103, 118
S.Ct. 1003, 140 L.Ed.2d 210 (1998) (noting that an
injury-in-fact is “[f]irst and foremost” among
the elements of Article III standing).
general, an injury-in-fact “must be concrete and
particularized, and actual or imminent, not conjectural or
hypothetical.” Elliott v. City of New York,
No. 06-cv-296, 2010 U.S. Dist. LEXIS 121334, at *31 (S.D.N.Y.
Nov. 15, 2010) (citing Lujan, 504 U.S. at 560).
These are constitutional requirements, which may not be
abrogated or limited by Act of Congress. See Spokeo, Inc.
v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547-48, 194
L.Ed.2d 635 (2016) (citations omitted).
Application to the Facts of this Case
case, the Defendant contends that the Plaintiff has not
plausibly alleged that she suffered an injury-in-fact
sufficient to confer Article III standing. Rather, the
Defendant argues that the Plaintiff has alleged bare
procedural violations under the FDCPA, without any factual
allegations to support a reasonable inference that she
suffered a concrete harm.
this proposition, she relies on Spokeo,
supra, in which the Supreme Court recognized that,
although “Congress has the [legislative] power to
define injuries and articulate chains of causation that will
give rise to a case or controversy where none existed before,
” Spokeo, 136 S.Ct. at 1549 (quoting
Lujan, 504 U.S. at 580 (Kennedy, J.,
concurring)), a plaintiff does not “automatically
satisf[y] 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. Rather, in order to have standing to enforce a
statutory right, a plaintiff must nevertheless establish that
she suffered an injury that was both concrete and particular.
the Defendant's argument is effectively foreclosed by the
Second Circuit's recent decision in Papetti v.
Doe, 2017 U.S. App. LEXIS 9165 (2d Cir. May 26, 2017)
(Summary Order), in which the court characterized the same
argument being advanced by the Defendant as a
“misinterpret[ation]” of Spokeo:
As we observed in Strubel v. Comenity Bank, 842 F.3d
181, 189 (2d Cir. 2016), Spokeo does not
“categorically . . . preclude[ ] violations of
statutorily mandated procedures from qualifying as concrete
injuries.” Rather, “some violations of
statutorily mandated procedures may entail the concrete
injury necessary for standing.” Id. In order
“to determine whether a procedural violation manifests
injury in fact, a court properly considers whether Congress
conferred the procedural right in order to protect an
individual's concrete interests.” Id.
Papetti, 2017 U.S. App. LEXIS 9165, at *3-*4.
these standards, the Second Circuit held that § 1692e
and § 1692g of the FDCPA - namely, the same provisions
upon which the Plaintiff's complaint in this case is
premised - indisputably “protect an individual's
concrete interests, ” so that an alleged violation of
those provisions satisfies the injury-in-fact requirement of
Article III. Id. at *4.
mindful that Summary Orders of the Second Circuit lack
precedential effect, see Aguas Lenders Recovery Grp. LLC
v. Suez, S.A., 585 F.3d 696, 702 n.4 (2d Cir. 2009), the
Court is nevertheless persuaded by the court's reasoning
in Papetti, which is apparently dispositive on this
issue and finds substantial support in the body of
post-Spokeo district court cases in this Circuit.
See, e.g., Winehouse v. GC Servs. Ltd.
P'ship, No. 16-cv-3110, 2017 U.S. Dist. LEXIS 86791,
at *4 (E.D.N.Y. June 6, 2017) (finding that standing could be
premised on a violation of the informational rights embodied
in sections 1692d and 1692e of the FDCPA); Guerrero v. GC
Servs. Ltd. P'ship, No. 15-cv-7449, 2017 U.S. Dist.
LEXIS 42884, at *29, *33 (E.D.N.Y. Mar. 23, 2017) (finding an
argument substantially similar to the Defendant's
argument in this case to be “misplaced, ” and
concluding that Article III standing can be premised on
alleged violations of § 1692e and § 1692g, which
confer substantive rights); accord Garcia v. Law Offices
Howard Lee Schiff, P.C., No. 16-cv-791, 2017 U.S .Dist.
LEXIS 48071, at *9-*10 (D. Conn. Mar. 30, 2017);
Remington v. Fin. Recovery Servs., No. 16-cv-865,
2017 U.S. Dist. LEXIS 36637, at *5-*6 (D. Conn. Mar. 15,
2017); Bautz v. ARS Nat' l Servs., No.
16-cv-768, 2016 U.S. Dist. LEXIS 178208, at *2-*3 (E.D.N.Y.
Dec. 23, 2016).
the Court finds that the Plaintiff's alleged failure to
plead facts showing an injury beyond the statutory violations
themselves does not divest her of Constitutional standing to
maintain this action. See Spokeo, 136 S.Ct. at 1549
(noting that “a plaintiff in such a case need not
allege any additional harm beyond the one Congress
has identified”) (emphasis in original).
Court notes that, originally, the Defendant also challenged
the Plaintiff's standing on the alternative ground that
she failed to properly include her FDCPA claim on the
appropriate schedules in her March 2016 bankruptcy filing,
and therefore, the present claims belong exclusively to her
bankruptcy estate. However, it appears that the Defendant has
since abandoned that argument.
to the extent that the Defendant seeks to dismiss the
complaint under Fed.R.Civ.P. 12(b)(1) on the ground that the
Plaintiff lacks Article III standing, its motion for such
relief is denied.
Sufficiency of the Complaint
Court now turns to the Defendant's argument that the
complaint fails to state a plausible ...