PARK v. ARS NATIONAL SERVICES, INC. et al

Filing 26

OPINION. Signed by Judge Susan D. Wigenton on 10/30/2015. (anr)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SUNGSOO PARK,

Civil Action No. 15-02867(SDW)(SCM)
Plaintiff,

v.

OPINION

ARS NATIONAL SERVICES, INC. and
JOHN DOES 1 to 10,
Defendant.

October 30, 2015

WIGENTON, District Judge
Before this Court is Defendant ARS National Services, Inc.’s Amended Motion for
Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c). This Court,
having considered the parties’ submissions decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, ARS
National Services, Inc.’s Motion is DENIED.
I.

JURISDICTION AND VENUE

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 and 15 U.S.C. §
1692k(d). Venue is proper in this District pursuant to 28 U.S.C. § 1391(b).

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II.

BACKGROUND

Plaintiff Sungsoo Park filed the operative Amended Complaint in this case on July 14,
2015 1 against Defendant ARS National Services, Inc. (“Defendant”) and John Does 1 to 10,
alleging a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.
(See generally Am. Compl.) Defendant filed an Amended Motion for Judgment on the Pleadings
on October 27, 2015, arguing that Plaintiff’s Amended Complaint failed to sufficiently state a
claim under the FDCPA. 2 (See generally Def.’s Br. Supp. Am. Mot. J. Pleadings (“Def.’s Br.
Supp.”).)
According to Plaintiff, Defendant is a consumer debt collection agency which mailed
collection letters to Plaintiff, an individual consumer, in an effort to collect a debt Plaintiff owed
to a third-party bank. (Am. Compl. ¶¶ 13, 17, 23.) Defendant sent four letters to Plaintiff in 2014
using “window envelopes” which exposed portions of the letters through glassine windows. (Am.
Compl. ¶¶ 23, 26, 27.) In addition to Plaintiff’s and Defendant’s mailing information, the glassine
windows exposed a barcode containing the account number the Defendant had assigned to
Plaintiff’s debt. 3 (Am. Compl. ¶ 27.) The information in the barcode could be accessed through
readily available consumer electronic devices, including smartphones, by using barcode scanning
applications. (Am. Compl. ¶¶ 28-30.)
Plaintiff argues that Defendant violated the FDCPA by sending the collection letters with
the barcode containing Plaintiff’s account number exposed because Section 1692f(8) prohibits:
“[u]sing any language or symbol, other than the debt collector's address, on any
envelope when communicating with a consumer by use of the mails or by telegram,

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Plaintiff filed his original complaint on April 22, 2015.
Defendant filed a previous motion for judgment on the pleadings on June 19, 2015 and filed a previous version of
the current motion on July 21, 2015.
3
The account number is one Defendant assigned to Plaintiff’s debt and not the account number associated with
Defendant’s third-party bank account.
2

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except that a debt collector may use his business name if such name does not
indicate that he is in the debt collection business.”
(Am. Compl. ¶ 44 (quoting 15 U.S.C. § 1692f(8)).)
Defendant argues that its conduct does not violate the FDCPA because the barcode on the
letters is a “benign symbol” and should be subject to a “benign words and symbols” exception to
the FDCPA. (Def.’s Br. Supp. 8-15.) Defendant also contends that it would be “inappropriate” to
apply the FDCPA under these circumstances because “[t]he only way to view the information
stored in the barcode at issue requires illegal action by a third party.” (Def.’s Br. Supp. 15.)
In considering these arguments the scope of the issue before the Court is narrowed by the
Third Circuit’s holding in Douglass v. Convergent Outsourcing that exposing a debt consumer’s
account number through a glassine window on a collection letter violates the FDCPA. 765 F.3d
299, 305-06 (3d Cir. 2014). Consequently, the issue before the Court is whether a debt collector
may avoid liability under the FDCPA by embedding that same account number within a barcode.
III.

LEGAL STANDARD

When a party makes a motion for judgment on the pleadings based on the defense of failure
to state a claim upon which relief can be granted, the Court “appl[ies] the same standards as under
Rule 12(b)(6).” Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991); see Caprio v.
Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 146 (3d Cir. 2013); see also Fed. R. Civ.
P. 12(h)(2)(B). Under the Rule 12(b)(6) standard, the movant bears the burden of establishing that
the complaint has failed to sufficiently state a claim. Animal Sci. Products, Inc. v. China
Minmetals Corp., 654 F.3d 462, 470 (3d Cir. 2011), as amended (Oct. 7, 2011). In addition, “[a]
court must accept all factual allegations in the complaint as true and draw all reasonable inferences
in favor of the plaintiff.” N.J. Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J.,

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760 F.3d 297, 302 (3d Cir. 2014) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008)). Furthermore, the question before the Court on such a motion is “not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).
Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff’s complaint need only contain
“‘a short and plain statement of the claim showing that the pleader is entitled to relief’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011) (quoting Bell Atlantic v.
Twombly, 550 U.S. 555 (2007)) (internal quotation marks omitted). Although the plaintiff is not
required to make “detailed factual allegations,” the complaint must state a claim that is “plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted). In other words, “the pleaded factual content [must allow] the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 662.
IV.

DISCUSSION

To survive Defendant’s Amended Motion for Judgment on the Pleadings, Plaintiff’s
Amended Complaint must have sufficiently alleged that “(1) [Plaintiff] is a consumer, (2) the
defendant is a debt collector, (3) the defendant’s challenged practice involves an attempt to collect
a ‘debt’ as the [FDCPA] defines it, and (4) the defendant has violated a provision of the FDCPA
in attempting to collect the debt.” Douglass, 765 F.3d at 303 (citing Piper v. Portnoff Law Assocs.,
Ltd., 396 F.3d 227, 232 (3d Cir. 2005)). Defendant contends that Plaintiff’s Amended Complaint
fails to satisfy the fourth element. (See Def.’s Br. Supp. 5.) Therefore, the Court must determine
whether Plaintiff has alleged sufficient facts, accepted as true, to plausibly claim that Defendant
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violated Section 1692f(8) of the FDCPA by sending debt collection letters to Plaintiff with a
barcode containing Plaintiff’s account number exposed through the glassine envelope windows.
15 U.S.C. § 1692f(8).
Defendant argues, on two grounds, that Plaintiff failed to adequately allege Defendant
violated the FDCPA. (See generally Def.’s Br. Supp.) First, Defendant contends that the barcode
containing Plaintiff’s account number is a “benign symbol” and should fall under a “benign words
and symbols” exception to the FDCPA. (Id. at 8-15). According to Defendant, the barcode is a
benign symbol because it “does not suggest anything about the contents of the enclosed
correspondence” and “cannot convey any information” without scanning equipment (i.e., a
smartphone). (Id. at 14.) Furthermore, Defendant argues that the FDCPA was not intended to
prohibit benign symbols despite its plain wording prohibiting debt collector’s from “[u]sing any
language or symbol, other than the debt collector’s address, on any envelope when communicating
with a consumer.” (Id. at 8-10 (quoting 15 U.S.C. § 1692f(8)).)
Second, Defendant maintains that the FDCPA does not apply to its conduct because other
laws and regulations (for example, 18 U.S.C. § 1702 and the United States Postal Service
Handbook) prohibit third-party individuals from scanning barcodes on mail parcels. (Def.’s Br.
Supp. 15-18.) Although Defendant admits it is possible a third party could intercept Defendant’s
letters and scan the barcodes, Defendant claims that “the imposition of liability . . . due to the
possibility a third party would break federal law is inappropriate.” (Id. at 16.)
Plaintiff responds to Defendant’s arguments first by averring that the Third Circuit has not
adopted a “benign [symbols] exception.” (Pl.’s Br. Opp’n Def.’s Mot. J. Pleadings (“Pl.’s Br.
Opp’n”) 13-18.) Furthermore, Plaintiff argues that even if the Third Circuit had adopted such an
exception, the barcode at issue is not benign and would not fall under the exception. (Id.)

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Specifically, Plaintiff asserts that the barcode falls within both the plain language and the purposes
of the FDCPA. (Id.) Finally, Plaintiff argues that the existence of laws and regulations prohibiting
third parties from scanning barcodes on mail is irrelevant since the purpose of Section 1692f(8) is
to prohibit debt collectors from exposing personal information that could potentially cause harm
to consumers. (Id. at 18-19.) Plaintiff also points out that the FDCPA can be read in harmony
with those laws to provide additional protection to consumers. (Id. 19-20.)
In light of these contentions the Court must determine whether Plaintiff has alleged
sufficient facts to state a facially plausible claim that Defendant violated the FDCPA by exposing
the barcode containing Plaintiff’s account number through a glassine envelope window. See
Douglass, 765 F.3d at 303 (explaining that the fourth element of an FDCPA claim is that “the
defendant has violated a provision of the FDCPA in attempting to collect the debt”).
The Third Circuit addressed similar facts in Douglass v. Convergent Outsourcing where,
in an attempt to collect a debt, the defendant publicly disclosed a debt consumer’s account number
(as opposed to a barcode containing the account number) through an envelope’s glassine window.
765 F.3d at 300-01. 4 The Third Circuit analyzed both the language and underlying purposes of
the FDCPA before holding not only that Section 1692f(8) applies to language and symbols visible
through glassine envelope windows, but also that the plaintiff’s account number was
“impermissible language or symbols under §1692(8).” Id. at 306. The court based the latter
holding on the fact that the plaintiff’s account number was neither “meaningless” nor “benign”
since it was “a piece of information capable of identifying [the plaintiff] as a debtor,” implicating
the privacy concerns behind the FDCPA. Id. at 305-06. Thus, in the instant case, this Court must
determine whether by embedding the Plaintiff’s account number in a barcode, the Defendant

4

Although the envelope at issue in Douglass also exposed a barcode, the Third Circuit only addressed the
defendant’s exposure of the account number itself. See Douglass, 765 F.3d at 301 n.4.

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avoids running afoul of the Third Circuit’s holding in Douglass that exposing the account number
itself violates the FDCPA. See Id.
As the Third Circuit did in Douglass, this Court must begin with the text of the FDCPA.
Id. at 302 (citing Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011)).
Section 1692f prohibits a debt collector from using “unfair or unconscionable means to collect or
attempt to collect any debt.” 15 U.S.C. § 1692f. The statute provides in its subsections a nonexhaustive list of conduct that would constitute “unfair or unconscionable means” including
“[u]sing any language or symbol, other than the debt collector’s address” on debt collection
envelopes. 15 U.S.C. § 1692f(8) (emphasis added). This text is unequivocal regarding symbols
such as the barcode visible on the debt collection letters Defendant sent to Plaintiff. Thus,
“[b]ecause the statute’s language is plain, [this Court’s] sole function is to ‘enforce it according to
its terms,’ so long as ‘the disposition required by that [text] is not absurd.’” Douglass, 765 F.3d
at 303 (quoting Alston v. Countrywide Fin. Corp., 585 F.3d 753, 759 (3d Cir. 2009)). Although
Defendant does not explicitly argue that applying the FDCPA to the barcode at issue is absurd,
Defendant alludes to such a position by arguing that there should be a “benign symbols exception”
to the FDCPA and that the barcode is benign. (Def.’s Br. Supp. 8-15.) However, as in Douglass,
this Court need not reach the question of whether a benign symbols exception exists because the
symbol at issue, the barcode, is not benign. See Douglass, 765 F.3d at 303 (“We need not decide
whether § 1692f(8) contains a benign language exception because [the language at issue] is not
benign.”).
In Douglass, the Third Circuit based its determination that the plaintiff’s account number
was not benign on the underlying purposes of the FDCPA. See Douglass, 765 F.3d at 303-06. In
enacting the FDCPA, Congress recognized that “existing laws and procedures . . . [were]

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inadequate to protect consumers” from abusive debt collection practices. 15 U.S.C. § 1692(b).
“[A]busive, deceptive, and unfair debt collection practices” had injured consumers in a number of
ways, including through “invasions of individual privacy.” Id. § 1692(a). Congress enacted the
FDCPA to combat these injuries and, therefore, “[a]s remedial legislation, the FDCPA must be
broadly construed in order to give full effect to these purposes.” Douglass, 765 F.3d at 302
(quoting Caprio, 709 F.3d at 148) (internal quotation marks omitted).
Here, as in Douglass, Defendant’s alleged behavior “implicates a core concern animating
the FDCPA—the invasion of privacy.” Douglass, 765 F.3d at 303. While it may be true that
Plaintiff’s account number was embedded in a barcode, it was readily available to anyone who
would scan it. (Am. Compl. ¶¶ 27-30.) Despite requiring the extra step of scanning the barcode
to access it, the Plaintiff’s account number is still “a core piece of information pertaining to
[Plaintiff’s] status as a debtor and [Defendant’s] debt collection effort.” Douglass, 765 F.3d at
303. Thus, although the account number was embedded in a barcode, disclosure of that barcode
“implicates core privacy concerns [and] cannot be deemed benign” because “[d]isclosed to the
public, it could be used to expose [Plaintiff’s] financial predicament.” Douglass, 765 F.3d at 30304 (emphasis added); see Styer v. Prof’l Med. Mgmt., Inc., No. 3:14-CV-2304, 2015 WL 4394032,
at *7 (M.D. Pa. July 15, 2015) (“Like the account number at issue in Douglass, the disclosure of
the QR code, which contains Plaintiff's account number, implicates a core concern animating in
the FDCPA, specifically the invasion of privacy.”) (first citing 15 U.S.C. § 1692(a); then citing
Douglass, 765 F.3d at 303); see also Kostik v. ARS Nat. Servs., Inc., No. 3:14-CV-2466, 2015 WL
4478765, at *6 (M.D. Pa. July 22, 2015) (holding that the plaintiff pled sufficient facts to survive
a motion for judgment on the pleadings where the plaintiff’s account number was embedded in a
barcode). Consequently, this Court cannot draw a meaningful distinction between the FDCPA’s

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application to account numbers, as in Douglass, and to barcodes containing account numbers, as
in the instant case. This determination is also unchanged by Defendant’s argument that it is
“inappropriate” to apply the FDCPA when use of the information on the debt collector’s envelope
would require a third party to break the law. (See Def.’s Br. Supp. 15-18.)
Defendant’s argument that the FDCPA does not apply to the barcode at issue because other
laws and regulations prohibit third parties from scanning it is unpersuasive. Neither the text nor
the underlying purposes of the FDCPA provide any basis for such an exception. See 15 U.S.C. §
1692f.

The FDCPA’s broad language focuses on debt collectors’ actions that could harm

consumers and on protecting consumers’ personal information. See, e.g., 15 U.S.C. § 1692f (“A
debt collector may not use unfair or unconscionable means to collect or attempt to collect any
debt.”); Douglass, 765 F.3d at 303 (“Section 1692f evinces Congress’s intent to screen from public
view information pertinent to the debt collection.” (citations omitted)). Section 1692(b) also shows
Congress’ intent to broadly regulate debt collector behavior through the FDCPA despite the
existence of related laws: “[e]xisting laws and procedures for redressing [injuries to consumers
from abusive debt collection practices] are inadequate to protect consumers.” This purpose of the
FDCPA is further supported by the Third Circuit’s focus in Douglass on the potential harm the
debt collector’s public disclosure of the plaintiff’s account number could cause (i.e., an invasion
of the plaintiff’s privacy) rather than on whether a third party would violate the law in accessing
or using that information. See Douglass, 765 F.3d at 305-06; Styer, 2015 WL 4394032, at *8
(noting that the Douglass opinion’s focus on the debt collector’s public disclosure “allows for the
inference that the potential of a third party using, possessing, or transferring plaintiff's account
number, was, at best, an insufficient reason to find that the disclosure of an account number was
not a violation of the FDCPA"). Thus, the remedial purposes and broad language of the FDCPA

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do not provide for exceptions to its prohibitions based on legislation that may forbid related
behavior by third parties.
In light of the Court’s analysis of the FDCPA and the Third Circuit’s Douglass opinion,
the Defendant has not established that Plaintiff’s Amended Complaint failed to state a claim upon
which relief can be granted. Plaintiff’s Amended Complaint states a claim under the FDCPA that
is facially plausible and, therefore, Defendant’s Amended Motion for Judgment on the Pleadings
must be denied.
V.

CONCLUSION

For the reasons stated above, Defendant’s Amended Motion for Judgment on the
Pleadings is DENIED. An appropriate order follows.
s/ Susan D. Wigenton, U.S.D.J.

Orig:
cc:

Clerk
Steven C. Mannion, U.S.M.J.
Parties

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