BERK v. J.P. MORGAN CHASE BANK, N.A. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE BERLE M. SCHILLER ON 9/23/11. 9/26/11 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HAROLD R. BERK, individually
and on behalf of a class similarly
J.P. MORGAN CHASE BANK,
N.A., et aI.,
September 23, 2011
Pro se Plaintiff Harold R. Berk brings this action against Defendants JPMorgan Chase Bank,
N.A. ("Chase Bank"), JPMorgan Chase & Co. ("Chase Co."), and Chase Auto Finance Corporation
(collectively, "Chase") and Accounts Receivable Management, Inc. ("ARM"), alleging that Chase
and ARM violated the Fair Debt Collections Practices Act ("FDCPA") and the Racketeer Influenced
and Corrupt Organizations Act ("RICO") and intentionally caused him emotional distress and
intruded upon his seclusion. Berk also filed class action allegations against Chase and ARM seeking
injunctive and declaratory relief under RICO on behalfofthe class. Berk, an attorney, seeks to serve
both as a class representative and as pro se class counsel. Presently before the Court are Defendants'
motions to dismiss the complaint and to strike Plaintiffs class action allegations. For the reasons set
forth below, Defendants' motion to dismiss will be granted as to Plaintiffs FDCPA claim against
Chase, Plaintiff's RICO claims brought by himself and on behalf of the purported class, and
Plaintiff s intentional infliction of emotional distress claim. Defendants' motion to dismiss will be
denied as to Plaintiffs FDCPA claim against ARM, his intrusion upon seclusion claim, and his
claims against Chase Co.
Beginning in 2009, Harold Berk started receiving telephone calls from individuals identifying
themselves as "Chase Auto Loans" regarding an alleged auto loan of Nancy Berk. (Am. Compi.
16.) Harold and Nancy Berk divorced in 1998. (!d.) Plaintiff had no knowledge of Nancy's auto
loan. (/d.) However, Berk continued to receive telephone calls from 2009 through 2011 concerning
the Nancy Berk loan. (/d.
18.) Plaintiff estimates having received five calls in 2009, twenty calls
in 2010, and five calls in20ll. (ld.
on four different phone lines. (/d.
~~ 23-25.) These calls were received at three different homes and
19-21.) On every occasion, Berk told the callers that he had no
knowledge of the matter and to stop calling. (ld.
26.) Marian Tracey, from whom Berk divorced
in 2009, also received telephone calls regarding the Nancy Berk loan. (ld. ~ 28-29.) Tracey was upset
by the calls, which created additional tension between Berk and Tracey. (ld. ~ 30.) Furthermore, Berk
states that his divorce from Nancy Berk was not amicable, and the repeated phone calls regarding
her auto loan caused him great stress and adversely affected his heart condition. (/d.
Beginning in November 20 to, Berk began threatening to report the callers to the U.S.
Attorney's Office. (/d.
36.) On February 26,2011, Plaintiff sent a letter regarding the phone calls
to Zane David Memeger, U.S. Attorney for the Eastern District ofPennsylvania, stating that a "major
bank is violating the Fair Debt Collection Act, privacy acts and other laws." (Am. Compi. Ex. A
[Memeger letter], ~ 38.) The letter requested that the U.S. Attorney investigate the matter. (Id.) Berk
also sent the Memeger letter to individuals at Chase, including Stephen M. Cutler, general
counsel of Chase Bank and Chase Co., and James Crown, member of the Board of Directors of
Chase Co. (Id.
39,40.) On March 3,2011, Michon Suter, executive specialist for Chase Auto
Finance Executive Office, sent a letter to Berk informing him that his phone number was
"erroneously associated with a Chase Auto Finance account," that it "ha[ d] been removed," and that
he "should no longer receive any calls from Chase Auto Finance." (/d.; Am. Compl. Ex. C [Suter
letter]). Suter also gave Berk his direct number in case Berk received more calls. (ld.) On March 7,
20 II, Jack Russell, a representative of Chase, called Plaintiff, indicating that he was calling at the
specific direction ofCutler, and Berk sent a follow -up letter to Cutler on March 14, 2011 recounting
the conversation with Russell. (/d.
41,42,44.) Berk also received a letter dated March 16,2011
from Concetta Palladino, executive specialist for Chase Auto Finance Executive Office indicating
receipt of Berk's March 14 letter. (/d.
49.) On March 28,2011, Jeffrey Levine, General Counsel
for Chase Auto Finance, called Plaintiff and listed all ofthe calls that had been made to Berk's phone
51.) In a subsequent email, Levine stated that they could not find any records of
having spoken with Berk or Tracey, but only of having left messages, but requested additional
information to further investigate the alleged contacts. (/d.
52.) On March 30,2011, Levine sent
Plaintiff a letter by Federal Express, which stated that their investigation found no records indicating
that Chase Auto Finance made direct contact with him or Tracey. (/d. Ex. F.) Levine also identified
ARM as their debt collector and stated that they had notified ARM ofthe situation and requested that
no further attempts be made to contact him. (Id.)
Having learned of the existence of ARM, Plaintiff wrote to ARM on April I and April 5,
20 11, seeking confirmation of contacts with him, forwarding the Memeger letter, stating that ARM
never identified its in its calls, and alleging FDCPA violations and harassment. (Id.
G.) On April 5,2011, Thomas Novak, ARM's in house counsel, responded stating their review
found no violations of the law. (Id. Ex. I.)
ST ANDARD OF REVIEW
The Federal Rules of Civil Procedure mandate dismissal of complaints that fail to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court accepts "as true all of
the allegations in the complaint and all reasonable inferences that can be drawn therefrom," viewing
them in the light most favorable to the non-moving party. See Phillips v. County ofAllegheny, 515
F.3d 224, 233 (3d Cir. 2008); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
The Court will construe Berk's complaint liberally, as he brings this action pro se. See Haines v.
Keener, 404 U.S. 519 (1972); Smith v. Sch. Dist. ofPhila., 112 F. Supp. 2d417, 423 (E.D. Pa. 2000).
The Third Circuit applies a two-part analysis to determine whether claims should survive a
Rule 12(b)(6) motion to dismiss. Fowlerv. UPMC Shadyside, 578 F.3d203, 210-11 (3d CiT. 2009).
The Court must first separate the factual and legal elements of each claim, accepting well-pleaded
facts as true but disregarding legal conclusions. See id. Second, the Court must determine whether
the facts alleged in the complaint are sufficient to show a plausible claim for relief. See id. at 211.
If the well-pleaded facts "do not permit the court to infer more than the mere possibility of
misconduct," the Court should dismiss the complaint for failure to state a claim. See Jones v. ABN
Amro Mortg. Grp., 606 F.3d 119, 123 (3d CiT. 2010).
When faced with a motion to dismiss for failure to state a claim, courts may consider the
allegations in the complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis ofaclaim. Lum v. Bank ofAm., 361 F.3d217, 222 n.3 (3d Cir. 2004).
A district court may also consider an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss, if the plaintiffs claims are based on the document. Pension Ben.
Guar. Corp. v. White Consolo Indus., 998 F.2d 1192, 1196 (3d Cif. 1993).
Chase and ARM contend that Berk has failed to state a claim under the FDCPA and RICO,
and cannot make out a claim of intentional infliction of emotional distress or intrusion upon
seclusion. Chase also argues that Berk has not asserted any allegations against Chase Co. Defendants
further argue that Berk's class allegations should be stricken as a matter oflaw.
Failure to State a Claim under the FDCPA
Plaintiff has alleged that the Defendants violated the FDCPA by repeatedly calling him about
another person's debt and by falsely identifying themselves as "Chase Auto Loans." The FDCPA
protects consumers by providing a remedy for "abusive, deceptive or unfair debt collection practices
by debt collectors." Piper
Portnoff Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cif. 2005). The
FDCPA prohibits three general categories ofconduct by debt collectors: (I) harassment, oppression,
or abuse; (2) false, deceptive, or misleading representations; and (3) unfair or unconscionable
practices. See 15 U.S.C. §§ 1692d, 1692e, 1692f.
A plaintiff must establish four elements to state an FDCPA claim: (I) he or she is a
"consumer" who is harmed by violations of the FDCPA; (2) the "debt" arises out of a transaction
entered into primarily for personal, family, or household purposes; (3) the defendant collecting the
debt is a "debt collector"; and (4) the defendant has violated, by act or omission, a provision of the
FDCPA. 15 U.S.C.A. §§ 1692a-16920; see e.g., Langleyv. Chase Home Fin., UC, Civ. A. No. 10
604, 2011 WL 1150772 (W.D. Mich. March II, 20 II); Whittiker v. Deutsche Bank Nat. Trust Co.,
605 F. Supp. 2d 914, 939 (N.D. Ohio 2009).
FDCPA Claim against ARM
ARM asserts that Berk lacks standing to sue based on an auto loan that belonged to Berk's
ex-wife Nancy and was made subsequent to the Berks' divorce. ARM emphasizes that Plaintiff
alleged that he had no knowledge of "its terms, conditions, or payment status." (Am. Compl. ~ 15.)
ARM further argues that Berk has failed to allege that the debt is a "consumer debt," as required by
the FDCPA. See FTC v. Check Investors, Inc., 502 F.3d 159, 167 (3d Cir. 2007).
The FDCPA defines "debt" as "any obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household purposes, whether or not such obligation
has been reduced to judgment." 15 U.S.c. § I 692a(5). "Federal courts interpret [FDCPA civil
liability] as a broad grant available to persons who are not obligated or allegedly obligated to pay the
debt that the defendant sought to collect." Wenrich v. Robert E. Cole, P.C, Civ. A. No. 00-2588,
200 I WL 4994, at *3 (B.D. Pa. Dec. 22,2000). The FDCPA protects individuals who are not debtors
provided "such persons ... claim they are harmed by proscribed debt collection practices." Yen tin
v. Michaels, Louis & Assocs., Inc., Civ. A. No. 11-0088,2011 WL 4104675 at *17 (B.D. Pa. Sept.
14,2011) (internal quotation marks omitted); see also H.R. Rep. No. 95-131, at 8 (1977) ("P]eople
who do not owe money, but who may be deliberately harassed are the family, employer and
neighbors of the consumer ... are also protected by [the FDCPA].") Plaintiff here has alleged
damages, including his emotional distress, as well as physical symptoms related to his heart
condition as a result ofARM's conduct. (Am. Compl. ~ 100.) Accordingly, the Court denies ARM's
motion to dismiss Plaintiffs FDCPA case against it.
FDCPA Claim against Chase
Chase argues that the FDCPA does not apply to Chase, because it is not a "debt collector"
under the statute and therefore not subject to its regulations. "The FDCPA's provisions generally
apply only to 'debt collectors. ' Creditors-as opposed to 'debt collectors '-generally are not subject
to the FDCPA." PoUice v. Nat 'I Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000) (citations
omitted). A "debt collector" is "any person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be
owed or due another." 15 U.S.c. § 1692a(6). This definition focuses on third parties that are
collecting a debt owed to another, rather than on creditors who collect on debts owed to themselves.
Plaintiff points to a narrow exception to this rule that exists for creditors who collect on debts
using a false name-the "false name exception." Id. ("The term includes any creditor who, in the
process of collecting his own debts, uses any name other than his own which would indicate that a
third person is collecting or attempting to collect such debts.") "A creditor uses a name other than
its own when it uses a name that implies that a third party is involved in collecting its debts,
'pretends to be someone else' or 'uses a pseudonym or alias. '" Maguire v. Citicorp Retail Servs.,
Inc., 147 F.3d 232, 235 (2d Cir. 1998) (quoting Villarreal v. Snow, Civ. A. No. 95-2484, 1996 WL
473386, at *3 (N.D. Ill. Aug. 19,1996)
Plaintiff concedes that the alleged debt is owed to Chase, and thus Chase is the alleged
creditor. (Am. Compl. ~ 102.) However, Plaintiff contends that the calls, which may have been from
Chase, always identified themselves as "Chase Auto Loans." (Id.
106.) Plaintiff argues that Chase
does not have any division, subsidiary, or corporation called "Chase Auto Loans," and therefore
Chase was using a name other than its own. (Id.)
The Court finds no merit in this argument. Congress did not intend that the FDCPA be
interpreted with such hair-splitting. See Federal Trade Commission Statements of General Policy or
Interpretation Staff Commentary On the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097,
50,107, 1988 WL 269068 (Dec. 13, 1988) ("[A] collector may use its full business name, the name
under which it usually transacts business, or a commonly-used acronym. When the collector uses
multiple names in its various affairs, it [must] consistently use the same name when dealing with
a particular consumer.") No reasonable person would find that "Chase Auto Loans" is a false
identification of any of the named Chase defendants-1PMorgan Chase Bank, lPMorgan Chase &
Co., or Chase Auto Finance Corporation. Furthermore, Plaintiff concedes that "every call made to
plaintiff was made by a caller who identified themselves as 'Chase Auto Loans.'" (Am. Compi.
106.) Plaintiff thus fails to establish that the false name exception should apply to Chase. As Chase
is not a "debt collector" under the FDCPA, Plaintiff s additional claims for vicarious liability by
Chase based on ARM's actions must also be dismissed. See Pol/ice, 225 F.3d at 404 ("[A]n entity
which itself meets the definition of 'debt collector' may be held vicariously liable for unlawful
collection activities carried out by another on its behalf.").
Failure to State a Claim under RICO
Plaintiffs third cause of action alleges that Defendants violated 18 U.S.c. § 1962(c) and (d).
18 U.S.c. § 1962(c) makes it "unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct
or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of
racketeering activity or collection ofunlawful debt." 18 V.S.C § I 962(d) outlaws conspiracies to
violate the other provisions of § 1962. "RICO provides a private right of action to '[a]ny person
injured in his business or property by reason ofa violation ofsection 1962 . '" Shipp v. Donaher, Civ.
A. No. 09-2475,2010 WL 1257972 (E.D. Pa. Mar. 25, 2010) (quoting 18 V.S.C § 1964(c)). The
Third Circuit "read[s] section 1964(c) as requiring a RICO plaintiff to make two related but
analytically distinct threshold showings ... (1) that the plaintiff suffered an injury to business or
property; and (2) that the plaintiffs injury was proximately caused by the defendant's violation of
18 V.S.C § 1962." Maio v. Aetna, Inc., 221 F.3d 472,483 (3d Cir. 2000) The injury element "can
be satisfied by allegations and proof of actual monetary loss." Id. The injury requirement has a
"restrictive significance, which helps to assure that RICO is not expanded to provide a federal cause
of action and treble damages to every tort plaintiff." /d. (quoting Steele v. Hospital Corp. ofAm., 36
F.3d 69, 70 (9th Cir. 1994)).
Plaintiff alleges that he has been "injured in his business and property" by Defendants'
conduct. (Am. Compl. ~'[ 120,121.) In particular, he specifies that he suffered "adverse physical and
medical conditions" and that the conduct has "interfere[d] with his business in the practice of law
and this proj ect finance consulting business." (Jd. ~ 121.) Elsewhere, Plaintiff alleges that he became
"upset, distraught, ha[ d] elevated heart rate, and his heart condition of atrial fibrilation [wa]s
adversely affected by the stress and tension." (Jd.
100.) None of these injuries is concrete and
financial, and therefore Berk fails to state a RICO injury. Shipp, 2010 WL 1257972, at * 11 (finding
plaintiffs failed to establish standing to sue under RICO based on plaintiffs' allegations of threats
against person, employment, business relationships, reputation, and health; recusal from business
activity; indignity; among others).
Furthennore, even if Plaintiff had standing under RlCO, he has failed to state a claim under
RlCo. Plaintiff alleges that Chase and ARM and their employees conspired to conceal ARM's
identify in order to evade the FDCPA, and they used the telephones in interstate commerce to do so.
Plaintiff asserts that this conduct by Defendants constitutes a "pattern of racketeering activity" in
violation of§ 1962(c). (Am. Compl. ~~ 112, 114,115.) Plaintiffalso alleges that Defendants violated
§ 1962(d) by conspiring to evade the FDCP A.
To plead a violation of § 1962(c), plaintiffs must allege "(1) conduct (2) of an enterprise (3)
through a pattern (4) ofracketeering activity." Lum v. Banko!Am., 361 F.3d217, 223 (3dCir. 2004).
Plaintiff fails to adequately plead the existence of an enterprise. An enterprise is defined under
§ 1961 (4) as an "individual, partnership, corporation, association, or other legal entity, and any union
or group ofindividuals associated in fact although not a legal entity." A RICO claim must plead facts
plausibly implying the existence ofan enterprise, including "a shared 'purpose, relationships among
those associated with the enterprise, and longevity sufficient to pennit these associates to pursue the
enterprise's purpose.'" In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 369-70 (3d Cir. 2010)
(quoting Boyle v. Us., 129 S. Ct. 2237,2244 (2009». "In addition, the enterprise must be shown to
have an existence 'separate and apart from the pattern of activity in which it engages.'" US. v.
Riccobene, 709 F.2d 214,221 (3d Cir. 1983).
Plaintiff has failed to allege that Defendants had an existence beyond that necessary to make
the allegedly improper calls. Additionally, the "enterprise must have 'some sort of structure ...
within the group for the making of decisions, whether it be hierarchical or consensual. There must
be some mechanism for controlling and directing the affairs ofthe group on an on-going, rather than
ad hoc, basis.'" Ins. Brokerage, 618 F.3d at 365 (quoting Riccobene, 709 F.2d at 222). Plaintiff has
also failed to allege any organizational structure, decisionmaking process, or control mechanism.
Because Plaintiff failed to satisfy RICO's standing requirement and to allege a RICO "enterprise,"
his third cause of action is dismissed with prejudice.
Failure to State a Claim for Intentional Infliction of Emotional Distress
A plaintiff must allege the following elements to assert a claim for intentional infliction of
emotional distress ("llED"): "(1) the defendant's conduct was intentional or reckless; (2) the
defendant's conduct was extreme and outrageous; (3) the defendant's conduct caused emotional
distress; and (4) the resultant emotional distress was severe." Brown v. Udren Law Offices PC, Civ.
A. No. 11-2697, 2011 WL 4011411, at *3 (B.D. Pa. Sept. 9, 2011) (citing BrufJett v. Warner
Commc'ns, Inc., 692 F.2d 910,914 (3d Cir. 1982».
To state a claim for lIED, the conduct at issue must be "so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society." Buczek v. First Nat'l Bank ofMifflintown, 531 A.2d 1122, 1125 (Pa. Super. Ct. 1987). It
is not enough that a defendant acted with criminal or tortious intent, or that he intended to inflict
emotional distress. Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (citing Restatement (Second) of
Torts § 46, cmt. d).
Plaintiffhas failed to state a claim for lIED. Berk maintains that Defendants have repeatedly
harassed him with phone calls about his ex-wife's debt so that he would pressure her to pay the debt
in order to stop the phone calls. (Am. Compi. ~ 132.) Plaintiff states that Defendants' conduct caused
him stress and anxiety, as well as high blood pressure, in part because he "and his former wife
continue to be at odds emotionally, and plaintiff does not want to hear from his former wife or
anything about her business or financial affairs." (Id. " 137, 135.) Receiving phone calls about an
ex-spouse's debt is not "atrocious" and "utterly intolerable" conduct that constitutes a claim for
intentional infliction of emotional distress. Indeed, the alleged conduct in the instant case pales in
comparison to the conduct in a recent case in this District, which considered if a debt collection
practice could establish a claim for lIED. Combs v. NCO Fin. Sys., Inc., Civ. A. No. 10-5673,2011
WL 1288686 (E.D. Pa. April 5, 2011). In Combs, the defendant allegedly called the plaintiff
regarding her sick husband's debt at least five to six times each day, and after the plaintiffs husband
died, the contacts increased in frequency and included an email offering her deceased husband a
payment plan. Though the defendant's alleged conduct in Combs was far more egregious than Chase
and ARM's alleged conduct directed toward to Berk, the court in Combs found that the plaintiffs
"allegations do not rise to the requisite level of outrageousness to state a claim for intentional
infliction of emotional distress." Id. at *5. Therefore, Defendants' alleged conduct surely does not
amount to the outrageousness required for an lIED claim.
Failure to State a Claim for Intrusion of Privacy and Seclusion
A claim for intrusion upon seclusion requires a showing of "conduct demonstrating 'an
intentional intrusion upon the seclusion of [a plaintiff s] private concerns which was substantial and
highly offensive to a reasonable person, and [must] aver sufficient facts to establish that the
information disclosed would have caused mental suffering, shame or humiliation to a person of
ordinary sensibilities.'" Boringv. Google Inc., 362 Fed. Appx. 273,278-79 (3d Cir. 2010) (quoting
Pro GolfMfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (Pa. 2002)).
Pennsylvania has adopted the definition ofintrusion upon seclusion as set out in Restatement
(Second) ofTorts, § 6528. Larsen v. Phila. Newspapers, Inc., 543 A.2d 1181, 1187 (Pa. Super. Ct.
1988). Under this definition, there is no liability for a person who demands payment of a debt unless
"the telephone calls are repeated with such persistence and frequency as to amount to a course of
hounding the plaintiff, that [it] becomes a substantial burden to his existence, that his privacy is
invaded." Restatement (Second) of Torts, § 652B cmt. d (emphasis added).
The Court finds that Plaintiff alleges sufficient facts to support a claim for intrusion upon
seclusion under Pennsylvania law. Plaintiff alleges that Defendants contacted Plaintiff on
approximately twenty or more occasions over two years, at three residences, and on four telephone
lines. (Am. Compl.
1.) Plaintiff also alleges that these calls persisted even after Defendants were
advised that Nancy Berk was Plaintiffs former wife and he knew nothing about the alleged debt. (Id.
142.) These allegations are sufficient to support a claim for intrusion upon seclusion. Compare
Desmond v. Phillips & Cohen Assoc., Ltd., 724 F. Supp. 2d 562, 568 (W.D. Pa. 2010) (allowing
intrusion upon seclusion claim to go to the jury based on debt collector's fourteen calls, four letters,
and several messages left on the plaintiffs answering machine, holding that whether the intrusion
was "highly offensive to a reasonable person is a question offact for the jury to decide."), with Stuart
v. AR Res., Inc., Civ. A. No. 10-3520,2011 WL 904167 (B.D. Pa. March 16,2011) (dismissing
intrusion upon seclusion claim despite defendant debt collector's persistent phone calls and profane
and abusive language because the of failure to plead the number or substance of calls).
Allegations Against JPMorgan Chase & Co.
Chase argues that Plaintiff has not asserted any allegations against Chase Co., arguing that
parent companies cannot be held liable for the acts of their subsidiaries. The Third Circuit has
emphasized that "mere ownership of a subsidiary does not justify the imposition of liability on the
parent." Pearson v. Component Tech. Corp., 247 F.3d 471,484 (3d Cir. 2001). Instead, parental
liability for a subsidiary's acts is appropriate either when a subsidiary is not a separate and
independent corporation, but rather the alter ego of the parent company, or if the subsidiary is an
agent for the parent in a specific transaction. Phoenix Canada Oil Co. v. Texaco, Inc., 842 F.2d
1476-77 (3d Cir. 1988). To determine if two corporations are separate, courts consider "adequacy
of capitalization, overlapping directorates and officers, separate record keeping, payment of taxes
and filing ofconsohdated returns, maintenance ofseparate bank accounts, level ofparental financing
and control over the subsidiary, and subsidiary authority over day-to-day operations." Id. at 1476.
Chase argues that Berk sets forth no allegations of wrongdoing by Chase Co., but rather he
seeks to hold Chase Co. liable for the acts of another. However, Plaintiff alleges both overlapping
officers and authority over day-to-day operations, as well as specific actions taken by Chase Co. Berk
alleges that he forwarded the Memeger letter to Chase Co.'s general counsel and to a memberofthe
Chase Co. Board of Directors. (Am. CompI. ~~ 39,40.) Plaintiff also alleges that he received a call
from Russell, who stated that he was calling at the direction of the Chase Co. general counsel. (Id.
42.) Plaintiff also alleges a letter that he sent to Chase Co. general counsel, which was responded
to by Palladino from Chase Auto Finance. (Id.
44,49.) Finally, Plaintiff alleges that the three
Chase Defendants all maintain principal offices at the same location. (Jd.
sufficiently alleges actions undertaken either by or at the direction of Chase Co. Thus, the Court
denies Chase's motion to dismiss any remaining claims against Chase Co., and Plaintiffs claim for
intrusion upon seclusion against Defendants JPMorgan Chase Bank, N.A. ("Chase Bank"),
JPMorgan Chase & Co. ("Chase Co.") will remain.
Motion to Strike Class Allegations
Motions to strike class allegations are generally resolved after a motion for class certification
is filed. The court in Korman v. The Walking Co., 503 F. Supp. 2d 755, 762-63 (E.D. Pa. 2007), held
that a motion to strike class allegations is premature if the plaintiff has failed to file a motion for
class certification. The court noted that the defendant's motion to strike class allegations is identical
to the defendant's opposition to a plaintiff's motion for class certification, yet would be filed while
discovery on the issue is still ongoing.ld. at 762. While the Third Circuit has not yet addressed this
issue, other courts within this District have followed this approach. See e.g., Martin v. Ford Motor
Co., 765 F. Supp. 2d 673 (E.D. Pa. 2011); Bellv. Money Res. Corp., Civ. A. No. 08-639,2009 WL
382478 (B.D. Pa. Feb. 13,2009); Rosenbergv. Avis RentA CarSys., Inc., Civ. A. No. 07-1110, 2007
WL 2213642 (E.D. Pa. July 31, 2007).
In the instant case, the class allegations raise a matter of law, and it is proper for the Court
to address it at the pleading stage. Plaintiff seeks to bring a class action under RICO on behalf of
"persons who have no auto loan with Chase Bank or Chase Auto Finance but who have received
more than one telephone call from ARM and/or Chase concerning the auto loan debt to Chase of
third parties." (Am. Compl. ~~ 79, 128.) However, as discussed above, Plaintifffailed to adequately
plead the existence of an enterprise prohibited by 18 U.S.C. § 1962 et. seq. Therefore, he has failed
to assert a claim under RICO in a representative capacity. The Court will grant Defendants' motion
to strike class allegations and dismiss Berk's fourth cause of action, given Plaintiff's failure to
adequately plead the existence of an enterprise to set forth a cause of action under RICO.
F or the reasons stated above, Plaintiff has failed to state a claim under the FDCP A against
Chase, under RICO against Chase and ARM both on his own behalf and on behalf of a class of
similarly situated people, and under state law for intentional infliction of emotional distress. The
Court will therefore dismiss those claims against Defendants. An Order consistent with this
Memorandum will be docketed separately.
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