BENELI v. AFNI, INC. et al

Filing 60

OPINION. Signed by Judge Brian R. Martinotti on 1/4/2017. (km)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
DAVID BENALI, on behalf of himself and :
all others similarly situated,
:
Civil Action No. 15-3605-BRM-DEA
:
Plaintiff,
:
:
v.
:
:
AFNI, INC. and JOHN DOES 1-25,
:
:
OPINION
Defendant.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
Before this Court are the following motions: (1) Plaintiff David Benali’s (“Benali” or
“Plaintiff”) Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 56 (ECF No. 23); (2)
Plaintiff’s Motion for Class Certification, pursuant to Fed. R. Civ. P. 23 (ECF No. 24); and (3) a
Cross-Motion for Summary Judgment filed by Defendant AFNI, Inc. (“AFNI” or “Defendant”)
(ECF No. 37). All of the motions are opposed. The Court heard oral argument on December 6,
2016. (ECF No. 57.)
I.

BACKGROUND 1

Plaintiff commenced this putative class action on May 29, 2015 (ECF No. 1), alleging
AFNI violated the Fair Debt Collection Practices Act, 15. U.S.C. §1692, et seq. (“FDCPA”). AFNI
filed an Answer to Plaintiff’s Complaint on August 10, 2015 (ECF No. 7), and the parties engaged
in discovery.
1

The facts set forth in this Opinion are taken from Plaintiff’s Complaint, the parties’ briefs and
related filings.
1

The Complaint alleges that, “within the last year the Defendant began a collection
campaign against the Plaintiff in an attempt to collect an alleged ‘debt.’” (Compl. (ECF No. 1) at
¶ 15.) 2 “On or about January 14, 2015 the Defendant sent the Plaintiff a collection letter” (the
“Collection Letter”). (Id. at ¶ 16, Ex. A; PSUMF at ¶ 1; DSUMF at ¶ 1.) The Collection Letter
stated that $3,284.37 was owed by Plaintiff to AT&T Mobility. (PSUMF at ¶ 2; DSUMF at ¶ 2.)
The Collection Letter further stated, in pertinent part, as follows: “Payments made
electronically to Afni may be subject to a $4.95 processing fee. Payment sent by mail are not
subject to any processing fee.” (Compl. at ¶ 19, Ex. A; PSUMF at ¶ 4; DSUMF at ¶ 4.) The crux
of Plaintiff’s Complaint is that “Defendant ha[d] no legal or contractual right to charge a
processing fee.” (Compl. at ¶ 20.) Nevertheless, “[a]ny payments made by a debtor by phone or
online would incur this $4.95 processing fee.” (PSUMF at ¶ 8; DSUMF at ¶ 8.) Defendant sent
collection letters, substantially similar to the Collection Letter received by Plaintiff, to over 31,000
AT&T customers residing in New Jersey. (PSUMF at ¶ 11; DSUMF at ¶ 11.)
Despite multiple references to “Plaintiff’s Wireless Customer Agreement with AT&T”
(see, e.g., PSUMF at ¶ 6) and repeated claims that “[t]he AT&T account was related to the
Plaintiff’s cellular phone” (id. at ¶ 3 (citations omitted)), the Complaint attempts to obfuscate the
fact that the AT&T Mobility account referenced in the Collection Letter is not Plaintiff’s.
(Compare PSUMF and Compl. with Amended Declaration of David Benali in Support of the
Plaintiff’s Motion for Summary Judgment (“Benali Am. Decl.”) (ECF No. 31) at ¶ 4.) Indeed, the
parties agree that “Plaintiff never signed any agreement with . . . AT&T Mobility.” (PSUMF at ¶

2

It is undisputed the “Defendant is a ‘debt collector’ as that term is used and defined by the
[FDCPA].” (Plaintiff’s Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1
(“PSUMF”) (ECF No. 23-3) at ¶ 9; Defendant’s Response to Plaintiff’s Statement of Undisputed
Facts Pursuant to Local Rule 56.1 and Counter-Statement of Material Facts in Support of Its CrossMotion for Summary Judgment (“DSUMF”) (ECF No. 37) at ¶ 9.)
2

5; DSUMF at ¶ 5.) Thus, at his deposition, Plaintiff testified he never intended to pay the subject
debt when he received the Collection Letter and, in fact, never paid any portion of either the subject
debt or the referenced $4.95 processing fee. (DSUMF ¶¶ 13-16; see also Declaration of
Concepcion A. Montoya in Response to Plaintiff’s Motion for Summary Judgment and in Support
of Defendant’s Cross-Motion for Summary Judgment (“Montoya Decl.”) (ECF No. 34) at Ex. 1.)
Specifically, Plaintiff testified, in pertinent part, as follows:
Q: Did you have an account with AT&T Mobility?
A: No, not me.
Q: Not you?
A: No.
Q: Who would have?
A: Somebody else, but not me.
Q: When you say “Somebody else,” who are you referring to?
A: I mean a scam because I never ordered. I contacted AT&T and I never
ordered anything.
*

*

*

Q: So going back to this AT&T Mobility on this Exhibit 2, you said earlier that
this was a scam.
A: Yes.
Q: Why do you say that?
A: Because I never ordered a phone. I never opened a line. I never did anything
on this.
*

*

*

Q: When you read that this is a collection notice, what was your reaction?
A: I think that AT&T is not serious and they’re just trying to get money from
anywhere they can. But it’s not my account. So it doesn’t matter to me. It
was no matter to me.

3

*

*

*

Q:

So you opened the letter, you saw it’s a collection notice; correct?

A:

Yes.

Q:

You saw it wasn’t your bill.

A:

Yes.

Q:

It wasn’t your debt; correct?

A:

Correct.

(Montoya Decl., Ex. 1 at 35:24-36:11, 43:8-15, 60:8-14, 65:21-66:3.)
Although the Complaint is silent on this point, Plaintiff initially maintained the AT&T
Mobility account referenced in the Collection Letter “is related to my cellular phone, which I used
for personal, not business uses.” (Declaration of David Benali in Support of the Plaintiff’s Motion
for Summary Judgment (ECF No. 23-2) at ¶ 4.) Later, however, Plaintiff submitted an Amended
Declaration “clarifying” his position. (See Benali Am. Decl. (ECF No. 31).) In this later
declaration, Plaintiff swears as follows: “I own and use an AT&T cellular phone as part of a family
plan, which is registered to my wife, Tali Benali’s name. . . . The January 14, 2015 Collection
Letter sought to collect on a different AT&T Mobility account. . . . [T]his account was not mine,
and I do not owe the accounts sought therein.” (Id. at ¶¶ 4-5 (emphasis in original).)
When questioned about these inconsistencies during oral argument, Plaintiff’s counsel
confirmed: “[W]e did discovery in this action. The defendant provided the wireless card member
agreement underlying this AT&T Debt. . . . My client did not sign that agreement. . . . My client
has consistently maintained in this action that he has never had an account with AT&T.” (Tr. at
3:1-11.) Plaintiff’s counsel continued:
when we first moved for class certification we had a declaration in there saying
that, you know, my account was never used for business purposes[,] it was only
used for personal purposes and [] we clarified [so] there’s no inconsistency

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here. . . . [H]is actual AT&T cell phone which he uses which is on his wife’s
plan that’s the cell phone we were referring to and . . . just so the record is clear
we put in a revised declaration . . . and in the revised declaration it has always
been the same that [he] never used his phone for business purposes it has always
been used for personal purposes and the reason is the FDCPA only covers
personal debts not business debts and, so, we were just trying to establish one
of the prongs of our prima facie claim.
(Tr. at 15:11-16:5.) Essentially, Plaintiff’s position, as stated by his counsel, is that “[i]t doesn’t
matter whether or not [Plaintiff] actually owe[s] the debt” or ever had an account with AT&T. (Id.
at 5:4-5.)
II.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving party,” and it is material only if it
has the ability to “affect the outcome of the suit under governing law.” Kaucher v. County of Bucks,
455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any weighing of the evidence; instead,
the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in
his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
(1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the
5

burden of persuasion at trial, that party must support its motion with credible evidence . . . that
would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other hand, if
the burden of persuasion at trial would be on the nonmoving party, the party moving for summary
judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting] affirmative
evidence that negates an essential element of the nonmoving party’s claim” or (2) demonstrating
“that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Id. Once the movant adequately supports its motion pursuant to Rule
56(c), the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475
U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the
merits of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence
and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992).

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III.

DECISION

Plaintiff’s Complaint asserts two causes of action, both for alleged violations of the
FDCPA. First, Plaintiff alleges AFNI violated § 1692e of the FDCPA by including in the
Collection Letter a reference to a processing fee for payments made electronically, because it
constitutes a false, deceptive and misleading representation or means to collect a debt. (See Compl.
(ECF No. 1) at ¶¶ 22-26.) Second, Plaintiff alleges AFNI violated § 1692f(1) of the FDCPA
because including a processing fee for payments made electronically constitutes an unfair and
unconscionable means to attempt to collect a debt. (Id. at ¶¶ 27-31; Mem. of Law in Support of
Plaintiff’s Motion for Summary Judgment (ECF No. 23-1) at 7.)
Typically, “[t]o prevail on an FDCPA claim, a plaintiff must prove that (1) she 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 v. Convergent Outsourcing, 765 F. 3d
299, 303 (3d Cir. 2014); see also Jensen v. Pressler & Pressler, 791 F. 3d 413, 417 (3d Cir. 2015).
Plaintiff contends “[t]he first three of these elements are not the subject to any serious
dispute in this action.” (ECF No. 23-1 at 6.) Rather, “[t]he only question to be resolved in this
action is whether the Defendant’s actions, in attempting to charge a $4.95 processing fee to
consumers paying their debts via credit card, violates the FDCPA.” (Id. at 7.) Plaintiff urges the
Court to answer this question in the affirmative and grant summary judgment in its favor because
AFNI’s charging of the processing fee was not “expressly permitted by the contract creating the
debt.” (Id. at 9.) It is undisputed, however, that Plaintiff never signed any agreement with AT&T,
and Plaintiff concedes that “New Jersey state law neither affirmatively permits nor expressly
prohibits a processing fee for credit card payments.” (Id.)

7

Relying on the recent Supreme Court decision in Spokeo, Inc. v. Robbins, 136 S. Ct. 1540
(2016), Defendant argues Plaintiff has neither been harmed nor suffered an injury in fact and, thus,
lacks Article III standing to maintain this action. (ECF No. 35 at 3.) Even assuming Plaintiff has
standing, Defendant argues its reference to a processing fee in the Collection Letter is not a
violation of the FDCPA because Plaintiff could have paid by mail without incurring a processing
fee and, further, New Jersey law permits charging consumers processing fees so long as the
consumers have another option to pay without incurring a fee. Finally, Defendant points out that
“Plaintiff testified at his deposition that he never had an account with AT&T Mobility that is
referenced in AFNI’s January 14, 2015 letter; that the AT&T Mobility account was a ‘scam,’ and
he contacted AT&T to say that he never ordered a phone and never opened a line. . . .” 3 (ECF No.
56 at 2.) Therefore, Defendant argues, Plaintiff has failed to meet his burden of showing the
absence of a genuine issue of material fact and, further, lacks Article III standing for failing to
demonstrate any concrete, particularized injury.
A.

Article III Standing

“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.’” Lance v. Coffman, 549 U.S. 437, 439 (2007). “Standing to sue is a doctrine
rooted in the traditional understanding of a case or controversy.” Spokeo, 136 S. Ct. at 1547. “The
standing inquiry focuses on whether the party invoking jurisdiction had the requisite stake in the
outcome when the suit was filed.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 360 (3d Cir.
2014) (citing Davis v. FEC, 554 U.S. 724, 734 (2008)).

3

Defendant also notes “the shape-shifting nature of Plaintiff’s evolving evidence on whether there
is a contract or not . . . creating a fact issue that defeats Plaintiff’s own summary judgment
[motion].” (ECF No. 35 at 7 n.3.) Nevertheless, “AFNI’s position is that regardless of the existence
of a contract, there is no prohibition to collecting [processing] fees in the presence of a non-fee
manner to pay, and that these processing or convenience fees are permitted by law.” (Id.)
8

Article III “standing consists of three elements.” Spokeo, 136 S. Ct. at 1547 (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish standing, “[t]he plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id.
Plaintiff, as the party invoking federal jurisdiction, “‘bears the burden of establishing’ the
elements of standing, and ‘each element must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.’” FOCUS v. Allegheny County Court of Common
Pleas, 75 F. 3d 834, 838 (3d Cir. 1996) (quoting Lujan, 504 U.S. at 561); see also Spokeo, 136 S.
Ct. at 1547 (“The plaintiff, as the party invoking federal jurisdiction, bears the burden of
establishing these elements.”) (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)). However,
“general factual allegations of injury resulting from the defendant’s conduct may suffice.” Lujan,
504 U.S. at 561.
As in Spokeo, “[t]his case primarily concerns injury in fact, the ‘[f]irst and foremost’ of
standing’s three elements.” Spokeo, 136 S. Ct. at 1547 (quoting Steel Co. v. Citizens for Better
Environment, 523 U.S. 83, 103 (1998)). “To establish injury in fact, a plaintiff must show that he
or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560).
“For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’”
Id. (citations omitted). “Particularization is necessary to establish injury in fact, but it is not
sufficient. An injury in fact must also be ‘concrete.’” Id. “A ‘concrete’ injury must be ‘de facto’;
that is, it must actually exist.” Id. (explaining that “[w]hen we have used the adjective ‘concrete,’

9

we have meant to convey the usual meaning of the term – ‘real,’ and not ‘abstract.’”).
“Concreteness, therefore, is quite different from particularization.” Id.
Defendant argues that Plaintiff “has not suffered any concrete injury – tangible or
intangible – sufficient to sustain his alleged claim under the FDCPA” and “[t]he mere conclusion
that he was upset [by the Collection Letter] is nowhere near the threshold requirement for a
concrete, particularized injury.” (ECF No. 35 at 4-5.) In response, Plaintiff argues that he “suffered
an injury that is ‘particularized’, since he alleges that he personally received th[e] Collection Letter.
Plaintiff further alleges a harm that is ‘concrete’ where the Defendant sought to obtain payment of
an extra $4.95 fee from the Plaintiff.” (ECF No. 47 at 13; see also Tr. at 7:23-25 (“In this case Mr.
Benali is complaining about excessive collection practice on a letter that he received.”).)
According to Plaintiff, for purposes of Article III standing, “[i]t doesn’t matter whether or not you
actually owe the debt.” (Tr. at 5:4-5.)
In Spokeo, the Supreme Court held that intangible injuries can be concrete and, under
certain circumstances, the risk of real harm can also satisfy the requirement of concreteness.
Spokeo, 136 S. Ct. at 1549. However, “Article III standing requires a concrete injury even in the
context of a statutory violation.” Id. As such, a plaintiff may “not, for example, allege a bare
procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement
of Article III.” Id. (citing Summers, 555 U.S. at 496 (“[D]eprivation of a procedural right without
some concrete interest that is affected by the deprivation … is insufficient to create Article III
standing”)) (additional citation omitted). This is exactly the situation here.
In his Complaint, Plaintiff sets forth bare statutory violations but has not established (and
simply cannot establish) a single concrete harm he suffered as a result of these alleged violations.
Merely receiving the Collection Letter, without more, is not sufficient to confer Article III standing

10

because, as Plaintiff unequivocally testified, the alleged “debt” was not his, and he knew it
immediately upon receiving the Collection Letter. Even assuming, for the sake of argument, the
Collection Letter violated the FDCPA, Plaintiff has only alleged a bare procedural violation
divorced of any concrete harm. See Spokeo, 136 S. Ct. at 1550 (“Robins cannot satisfy the demands
of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural
requirements may result in no harm. . . . An example that comes readily to mind is an incorrect zip
code. It is difficult to imagine how the dissemination of an incorrect zip code, without more could
work any concrete harm.”). Here, Defendant’s alleged FDCPA violations did not, in fact, result in
any actual or threatened harm to Plaintiff, and he readily admits as much.
Plaintiff tries to distinguish Spokeo by arguing that, here, Defendant “created the risk that
the Plaintiff would pay his debt with his credit card, and blindly pay this $4.95 fee, believing that
this fee could legally be charged to him” and “suffered an injury that is ‘particularized’, since he
personally received th[e] Collection Letter.” (ECF No. 47 at 13.) But this is just another way of
saying that a bare procedural violation is itself a concrete harm – a principle explicitly rejected by
the Supreme Court. See Spokeo 136 S. Ct. at 1550; see also Hecht v. Hertz Corp., 2016 WL
6139911, at *3-*4 (D.N.J. Oct. 20, 2016) (finding plaintiff lacked Article III standing to challenge
the legality of certain statements made on defendant’s website where the plaintiff failed to “allege
that he even viewed (let alone relied upon to his detriment) either of these sections of Hertz’s
website”); Braitberg v. Charter Commc’ns, Inc., 2016 WL 4698283, at *4 (8th Cir. Sept. 8, 2016)
(holding that Plaintiff who alleged only that a company violated a procedural duty to destroy
personally identifiable information, without alleging any resulting harm – such as disclosure to a
third party or misuse of that information – did not have standing under Spokeo); Lee v. Verizon
Commc’ns, Inc., 2016 WL 4926159, at *2 (5th Cir. Sept. 15, 2016) (holding plaintiff’s allegation

11

of an “invasion of a statutory right to ‘proper plan management’ under ERISA” did not establish
a concrete harm “where there was no allegation of a real risk that Plaintiff’s defined-benefit-plan
payments would be affected”). 4
In any event, and despite Plaintiff’s counsel’s arguments to the contrary, it is undisputed
that there was no risk that Plaintiff would pay the $4.95 processing fee because he never had an
account with AT&T and immediately believed the Collection Letter to be a “scam.” To be sure, in
certain circumstances, the risk of real harm may satisfy the requirement of concreteness. See

4

Plaintiff further argues he “cited to dozens of holdings where district courts have overwhelmingly
found that a plaintiff, whose rights under the FDCPA have been violated, has Article III standing
to sue.” (ECF No. 54 at 1.) Plaintiff contends, “[a]s in Blaha [v. First National Collection Bureau,
Case No. 16-2791, slip op. (D.N.J. Nov. 10, 2016)], it does not matter that the Plaintiff did not pay
the unauthorized $4.95 processing fee unlawfully sought by the Defendant in its Collection Letter.”
(Id. at 3.) Plaintiff’s reliance on Blaha is misplaced. Initially, unlike Blaha (and the overwhelming
majority of cases cited by Plaintiff), where the Court was deciding a Fed. R. Civ. P. 12(b) motion
to dismiss and required to accept the plaintiff’s allegations as true, this case is at the summary
judgement stage and no such presumption of truthfulness applies. Moreover, in Blaha, the plaintiff
alleged the defendants violated Sections 1692e and 1692f of the FDCPA by sending her a letter
that sought to collect on a time-barred debt and allegedly seeking to induce consumers to pay the
debt in an effort to revive the statute of limitations. See Blaha, slip op. at pp. 4, 15. Defendants
moved to dismiss arguing, inter alia, the statutory violations alleged by the plaintiff were bare
procedural violations insufficient to establish Article III standing. See id. at 14. Although the Blaha
Court ultimately found defendant’s collection letter did not violate the FDCPA, it held the
complaint sufficiently alleged a harm which the statute was intended to guard against, noting that
an injury in fact may exist “solely by virtue of statutes creating legal rights, the invasion of which
creates standing.” Id. at 15-16. Here, however, Plaintiff admits he never opened any account with
AT&T and the unsupported (indeed, flatly contradicted) allegation that “the AT&T account was
related to the Plaintiff’s cellular phone, which the Plaintiff used for personal, not business uses” is
insufficient at the summary judgment stage. Indeed, even Plaintiff’s counsel acknowledged the
heightened standard of proof necessary on a motion for summary judgment. (See Tr. at 6:23-7:3
(“It impacts the burden of proof at that particular stage so I would like to say a motion to dismiss
stage it might just be you have to, you know, put together the allegations but that’s about it while
at a summary judgment stage you might actually have to prove it.”).) But Plaintiff’s counsel also
admitted that “when we first moved for class certification we had a declaration in there saying that,
you know, my account was never used for business purposes[,] it was only used for personal
purposes” because “we were just trying to establish one of the prongs of our prima facie claim.”
(Id. at 15:11-16:5 (emphasis added).) While these allegations might be sufficient to overcome a
motion to dismiss, at the summary judgment stage, a plaintiff “actually ha[s] to prove” their
allegations. But Plaintiff has failed to do so here.
12

Spokeo, 136 S. Ct. at 1550; see also Carney v. Russell P. Goldman, P.C., Case No. 15-260, slip
op., 2016 WL 7408849 (D.N.J. Dec. 22, 2016) (denying motion to dismiss FDCPA claims where
plaintiff allegedly suffered only an informational injury and a risk of economic injury resulting
from defendant’s statutory violations). While the Court has doubts the Collection Letter violates
the FDCPA, 5 the alleged procedural violations in this case also may entail a degree of risk
sufficient to meet the concreteness requirement as to any of the 31,000 recipients of the Collection
Letter who actually had an account with AT&T. However, Plaintiff readily admits he suffered no
actual harm nor was he exposed to any risk of harm. Instead, Plaintiff complains of the
quintessential “bare procedural harm, divorced from any concrete harm,” which cannot “satisfy
the injury-in-fact requirement of Article III.” See Spokeo, at 1549-50 (holding that a concrete harm
is one that is “not conjectural or hypothetical”).

5

Although not cited by the parties in their briefs, the Court is aware of at least one very recent
(albeit non-precedential) opinion of the Third Circuit dealing with a near-identical debt collection
letter as here. See Szczurek v. Professional Mgmt., Inc., 627 Fed. App’x. 57 (3d Cir. 2015). The
collection letter in Szcczurek, which the Third Circuit quoted in full in its opinion, stated, in
pertinent part, as follows: “Payments can be made by check or credit card. . . . For prompt account
resolution, credit and debit card payments can be made by accessing our automated interactive
telephone system . . . 24 hours a day, seven days a week. Please be advised that a transaction fee
of $5.00 is charged on all credit card payments. This transaction fee is in addition to your actual
payment and the fee will not be credited to your account.” Id. at 59. The Third Circuit took no
issue with, nor made any mention of, the letter’s reference to a transaction fee and, instead, held
that “whether viewed alone or in context,” the “correspondence did not violate the FDCPA.” Id.
at 58, 62. The District Court in Szczurek also quoted the collection letter in its entirety, again
without any apparent pause, and nonetheless granted summary judgment in favor of the defendant
because “[t]he notice states clearly . . . that the debtor has multiple options, and the least
sophisticated debtor, reading the notice in its entirety, would understand that.” Szczurek v.
Professional Mgmt., Inc., 59 F. Supp. 3d 721, 728 (E.D. Pa. 2014). While not dispositive, because
the issue was not before the Third Circuit and its opinion is non-precedential, this Court
nevertheless identifies the obvious reality that a recent, non-precedential Third Circuit opinion
analyzing nearly-identical language, in the context of an FDCPA claim, has the potential to be
persuasive. In light of the Court’s finding that Plaintiff lacks Article III standing, however, the lack
of subject matter jurisdiction precludes the Court from addressing the merits of Defendant’s
alleged FDCPA violations at this time.
13

In sum, Plaintiff admits he never suffered any actual harm as a result of Defendant’s alleged
FDCPA violations, and the alleged risk of harm to the Plaintiff in this case is entirely conjectural
or hypothetical. Because Plaintiff has not suffered an injury-in-fact he lacks Article III standing
and this case must be dismissed accordingly for lack of subject matter jurisdiction.
IV.

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion for Summary Judgment is DENIED and
Defendant’s Cross-Motion for Summary Judgment is GRANTED. Plaintiff’s Motion for Class
Certification is, therefore, DENIED as moot. An appropriate order will follow.

Date: January 4, 2017

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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