Petri v. Valarity, LLC

Filing 56

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants motion to dismiss Count VII of the first amended complaint [Doc. # 25 ] is granted. Signed by District Judge Carol E. Jackson on 11/17/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSEPH PETRI,
Plaintiff,
v.
VALARITY, LLC,
Defendant.

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Case No. 4:15-CV-72-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss Count VII of
plaintiff’s first amended complaint for failure to state a claim. Plaintiff has filed a
response in opposition, and the issues are fully briefed.
I.

Background

In the first amended complaint, plaintiff Joseph Petri alleges that defendant
Valarity, LLC attempted to collect a debt by using an automatic telephone dialing
system to make repeated calls to plaintiff’s cell phone. According to plaintiff, the
alleged debt arose from medical services that had been provided by a hospital. The
dialing system called during the day and evening, and it hung up on plaintiff
numerous times. Plaintiff requested that defendant stop calling his cell phone, but
defendant disregarded this request and continued to contact plaintiff using the
automated dialing system.
Plaintiff claims that the defendant’s actions violated the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq. (Counts I-V) and the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. §§ 227 et seq. (Count VI). In Count
VII, plaintiff asserts a claim of invasion of privacy based on Missouri law.

II. Legal Standard
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). The factual allegations of a
complaint are assumed true and construed in favor of the plaintiff, “even if it strikes
a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(stating that a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; see id. at 563 (stating that the “no set of facts” language in Conley v.
Gibson, 355 U.S. 41, 45–46 (1957), “has earned its retirement”); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678–84 (2009) (holding that the pleading standard set forth
in Twombly applies to all civil actions).

“Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
II.

Discussion

In Count VII, plaintiff alleges that defendant “intentionally intruded on his
seclusion and privacy by frequently and continually calling” him. First Am. Comp.
¶ 61 [Doc. #23].

He further alleges that the calls “were so repetitive and

continuous and frequent” that they could be considered “hounding” and “a

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substantial burden to [plaintiff’s] existence.”

Id. ¶ 62.

Defendant argues that

plaintiff has not alleged facts establishing the elements of an intrusion upon
seclusion claim or facts establishing the plausibility of the claim.
Missouri law recognizes a right to privacy that is “legally protected, and
violation of such right can under given circumstances provide an entitlement to
relief.” Sofka v. Thal, 662 S.W.2d 502, 509 (Mo. 1983). The tort of invasion of
privacy includes the “unreasonable intrusion upon the seclusion of another,” which
is defined as the intentional intrusion “physically or otherwise upon the solitude or
seclusion of another or his private affairs or concerns” in a manner that would be
“highly offensive to a reasonable person.” Id. at 510.

To establish a claim of

unreasonable intrusion upon seclusion, a plaintiff must prove “(1) the existence of a
secret and private subject matter; (2) a right in the plaintiff to keep that subject
matter private; and (3) the obtaining by the defendant of information about that
subject matter through unreasonable means.” Ruzicka Elec. & Sons, Inc. v. Int'l
Bhd. of Elec. Workers, Local 1, AFL-CIO, 427 F.3d 511, 524 (8th Cir. 2005) (citing
Corcoran v. Southwestern Bell Telephone Co., 572 S.W.2d 212, 215 (Mo. Ct. App.
1978)).
Plaintiff argues that the hospital debt that defendant attempted to collect is a
private matter that he had a right to keep private.

Pl’s. Opp. at 3 [Doc. #29].

Assuming, arguendo, that the complaint sufficiently states the first two elements of
the intrusion claim, it clearly fails to state the third element.

Plaintiff does not

allege that defendant obtained the information about the hospital debt “through
deception, illegal activity, or other unreasonable methods.” St. Anthony’s Med. Ctr.
v. H.S.H., 974 S.W.2d 606, 610 (Mo. Ct. App. 1998).

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See also Hester v. Barnett,

723 S.W.2d 544, 563 (Mo. Ct. App. 1987) (allegations that defendant gained access
to plaintiff’s home through pretense in order to obtain damaging information
sufficient to state a claim); Corcoran v. Southwestern Bell Tel. Co., 572 S.W.2d
212, 215 (Mo. Ct. App. 1978) (defendant obtained plaintiffs’ phone bill by deception
by opening sealed, first-class mail addressed to plaintiffs and reading contents
without authorization). Further, “[a] plaintiff cannot establish the defendant's use
of ‘unreasonable means’ to obtain information if a defendant obtains such
information in the ordinary course of business.” Thomas v. Corwin, 483 F.3d 516,
532 (8th Cir. 2007) (quoting St. Anthony's Med. Ctr. v. H.S.H., 974 S.W.2d 606,
610 (Mo. Ct. App. 1998)). Here, plaintiff alleges that defendant was acting as a
“debt collector” in its attempts to collect the debt on behalf of the hospital. First
Am. Comp. ¶ 7 [Doc. #23].

There is no allegation that defendant obtained the

information about the debt other than through its normal course of business.
Plaintiff’s claim in Count VII fails to rise above a speculative level.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss Count VII of
the first amended complaint [Doc. #25] is granted.

______________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of November, 2015.

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