Aikens v. Portfolio Recovery Associates, LLC
AMENDED ORDER; For the reasons stated herein, Defendant's motion to dismiss this action for lack of jurisdiction is granted and this action is dismissed, without prejudice. The Clerk of the Court is directed to enter an Amended Judgment consistent with this Order. (Ordered by Judge Leonard D. Wexler on 11/28/2017.) (Fagan, Linda)
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SHARON AIKENS, on behalf of hersel~ and
all others similarly situated,
NOV 28 2017
LONG ISLAND OFFICE
-againstPORTFOLIO RECOVERY ASSOCIATES,
THE AUSLAENDER FIRM, P.C.
BY: JUSTIN ALAN AUSLAENDER, ESQ.
Attorneys for Plaintiff
43 West 43rd Street, Suite 163
New York, New York 10036
THOMPSON CONSUMER LAW GROUP, PLLC
BY: MICHAEL ROLLAND, ESQ.
Attorneys for Plaintiff
523 5 E. Southern A venue, D 106-618
Mesa, Arizona 85206
MCGUIRE WOODS LLP
BY: DAVID L. HARTSELL, ESQ.
SARAH A. ZIELINSKI, ESQ.
MICHAEL VAN RIPER, ESQ.
Attorneys for Defendant
77 West Wacker Drive, Suite 4100
Chicago, Illinois 6060 1
WEXLER, District Judge:
Before 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, without
Plaintiff, 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.
On or 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.
Plaintiff 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 costs.
PRA now moves to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(l), 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
A 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 rei. 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. Stoothoffv. Apfel, No. 98 Civ. 5724, 1999 U.S. Dist. LEXIS 10459, at *1 n.l
(S.D.N.Y. July 7, 1999) (citing cases). "The plaintiffbears 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. Sys .. Inc., 426 F.3d 635, 638 (2d Cir. 2005)).
Article III Standing
Article III standing "is the threshold question in every federal case, determining the power
of the court to entertain the suit.'' Warth v. Seldin, 422 U.S. 490, 498 (1975). "If [a] plaintiff
lack[s] Article III standing, a court has no subject matter jurisdiction to hear [his or her] claim,"
and the action must be dismissed. Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012).
"To satisfy the 'irreducible constitutional minimum' of Article Til standing, a plaintiff
must demonstrate (1) 'injury in fact,' (2) a 'causal connection' between that injury and the
complained-of conduct, and (3) a likelihood 'that the injury will be redressed by a favorable
decision.'" Strubel v. Comenity Bank, 842 F.3d 181, 187-88 (2d Cir. 2016) (quoting Luian v.
Defs. ofWildlife, 504 U.S. 555,560-61 (1992)). The plaintiffbears the burden of establishing
the elements of standing. See Ross v. Metropolitan Life Ins. Co., Nos. 15-2665-cv, 15-3504-cv,
15-3553-cv, 15-4189-cv, 2017 U.S. App. LEXIS 3239, at *4 (2d Cir. Feb. 23, 2017) (citing
Spokeo. Inc. v. Robins,_ U.S._, 136 S. Ct. 1540, 1547 (2016)).
"To demonstrate injury in fact, a plaintiff must show the 'invasion of a legally protected
interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or
hypothetical."' Strubel, 842 F.3d at 188 (quoting Lujan, 504 U.S. at 560). Here, Plaintiff asserts
that she has standing based on PRA's alleged violation of the EFTA. However, "Article III
standing requires a concrete injury even in the context of a statutory violation." Spokeo, 136 S.
Ct. at 1549. As the Supreme Court held in Spokeo, a plaintiff does not automatically satisfy 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. A plaintiff cannot "allege a bare
[statutory] procedural violation, divorced from any concrete harm, and sat~sfy the injury-in-fact
requirement of Article Ill." Strubel, 842 F.3d at 189 (quoting Spokeo, 136 S. Ct. at 1549)
(alteration in original).
That is precisely what Plaintiff seeks· to do here. Plaintiff amassed a debt that she failed
to pay. After acquiring that debt, PRA entered into a monthly payment plan with Plaintiff, which
Plaintiff authorized and agreed to, whereby PRA would debit Plaintiffs checking account each
month. Now, Plaintiff seeks to obtain money damages from PRA for allegedly violating the
EFTA by not obtaining Plaintiffs agreement in writing. 1 There is no concrete injury here.
Plaintiff authorized PRA to withdraw money from her account to repay the debt she owed. PRA
did not take more money than was agreed to. Nor did they withdraw the money from any other
account than that which Plaintiff authorized. The Court fails to see how Plaintiff suffered any
injury here whatsoever.
Since Plaintiff has failed to establish standing to bring the within action, Defendant's
motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)( 1), is granted and this
action is dismissed in its entirety.
For the foregoing reasons, Defendant's motion to dismiss this action for lack of
jurisdiction is granted and this action is dismissed, without prejudice. The Clerk of the Court is
directed to enter an Amended J udgm~nt consistent with this Order.
Dated: Central Islip, New York
November 28, 2017
~O~A~ District Judge
While the Court takes no position with respect to the merits of Plaintiffs claim since it
finds jurisdiction lacking here, it finds the claim dubious at best.
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