DANIELS v. SOLOMON AND SOLOMON P.C. et al

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 8/25/2017. 8/25/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LATASHA DANIELS, on behalf of herself
and all others similarly situated
v.
SOLOMON and SOLOMON, P.C.

:
:
:
:
:
:

CIVIL ACTION
NO. 17-0757

MEMORANDUM
SURRICK, J.

AUGUST 25 , 2017

Presently before the Court is Defendant’s Motion to Dismiss. (ECF No. 9.) For the
following reasons, Defendant’s Motion will be granted.
I.

BACKGROUND
This action arises from a debt collection letter that Plaintiff Latasha Daniels received

from Defendant Solomon and Solomon, P.C. Plaintiff asserts one count against Defendant for
violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e (“FDCPA”), on behalf of
herself and the putative class. Plaintiff alleges that the letter falsely implies attorney
involvement, and threatens an action that cannot legally be taken, in violation of the FDCPA.
A.

Factual Background 1

On April 4, 2016, Plaintiff received a debt communication letter (“Letter”) from
Defendant. (Compl. ¶ 22, ECF No. 1.) At the time, Plaintiff owed Niagara Mohawk Power
Corporation (“Niagara”) money for utility services in the amount of $2,850.65, and her
obligation was in default. (Id. ¶¶ 16, 21.) Niagara retained Defendant, a law firm and debt
collection agency, to collect Plaintiff’s debt. (Id. ¶¶ 7, 19.)
1

For the purpose of this Motion, the factual allegations in Plaintiff’s Complaint are taken
as true. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989).

Defendant sent Plaintiff the Letter in order to collect Plaintiff’s debt. (Id. ¶ 23.) The
Letter is printed on a standard form that contains Defendant’s trade name and address on the top
right-hand corner of the page. (See Letter, Compl. Ex. A.) Plaintiff alleges that the Letter stated,
in part: “Please be advised that your account with Solomon and Solomon P.C. still remains
unpaid, and has been reported to the national credit bureaus. You should act now to resolve your
problem!” (Id. ¶ 26.) The Letter provides payment directions, the standard FDCPA debt
collection notice, and an invoice. (See Letter.) The Letter is not signed by a Solomon attorney
or employee. (Compl. ¶ 27.)
B.

Procedural History

On February 13, 2017, Plaintiff filed a Complaint in this Court. 2 Plaintiff’s Complaint
asserts one count against Defendant for violations of the FDCPA (Count I). On April 20, 2017,
Defendant filed the instant Motion to Dismiss. (MTD, ECF No. 9.) On May 18, 2017, Plaintiff
filed a Response in Opposition to Defendant’s Motion to Dismiss. (Pl.’s Resp., ECF No. 12.)
On May 25, 2017, Defendant filed a Reply to Plaintiff’s Response. (ECF No. 13.)
II.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), “[a] pleading that states a claim for relief

must contain a short and plain statement of the claim showing that the pleader is entitled to
relief.” Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to
state a claim upon which relief can be granted. A motion under Rule 12(b)(6) tests the
sufficiency of the complaint against the pleading requirements of Rule 8(a). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

2

Plaintiff filed this suit as a putative class action, but has not attempted to certify the
proposed class. As a result, we will not address this issue.
2

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A
complaint that merely alleges entitlement to relief, without alleging facts that show entitlement,
must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Courts
need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements . . . .” Iqbal, 556 U.S. at 678. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at 679. This
‘“does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556).
In determining whether dismissal of the complaint is appropriate, courts use a two-part
analysis. Fowler, 578 F.3d at 210. First, courts separate the factual and legal elements of the
claim and accept all of the complaint’s well-pleaded facts as true. Id. at 210-11. Next, courts
determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
“‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). Given the nature of
the two-part analysis, “‘[d]etermining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.’” McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009) (quoting
Iqbal, 556 U.S. at 679).

3

III.

DISCUSSION
The FDCPA prevents debt collectors from using “any false, deceptive, or misleading

representation or means with the collection of any debt.” 15 U.S.C. § 1692e. To state a claim
under the FDCPA, Plaintiff must allege 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
Act 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).
Plaintiff has alleged that she is a consumer, and that she received the Letter from Defendant, in
an attempt to collect the debt she owed to Niagara. (See Compl. ¶¶ 14, 19-24.) Defendant’s
Motion does not contest the first three elements. (See MTD 4-5.) Therefore, we need only
determine if Defendant has violated an FDCPA provision in attempting to collect the debt. 3
Plaintiff alleges that Defendant violated two provisions of the FDCPA by sending the
Letter to Plaintiff: (1) § 1692e(3), which prohibits “false representation or implication that any
individual is an attorney or that any communication is from an attorney”; and (2) § 1693e(5),
which prohibits “[t]he threat to take any action that cannot legally be taken or that is not intended
to be taken.” Defendant advances two arguments in support of its Motion to Dismiss. First,
Defendant argues that Plaintiff lacks Article III standing because she has not pled that she
suffered a specific harm. Second, Defendant asserts that Plaintiff failed to state a claim for relief
because the Letter does not constitute a violation of the FDCPA.
A.

Standing

Defendant asserts that Plaintiff lacks standing to bring a claim under the FDCPA because
she has not suffered a concrete injury-in-fact, and has not pled a specific harm. Defendant
3

Although Plaintiff references improper notice in the Complaint, she pleads no facts to
support this claim. (See Compl.) Accordingly, we reject this argument.
4

contends that Plaintiff’s allegation that the Letter “could have affected [her] decision-making
with regard to the debt” fails to identify a specific harm. (Compl. ¶ 56.)
“To establish Article III standing, a plaintiff must demonstrate: (1) an injury-in-fact, (2)
a sufficient causal connection between the injury and the conduct complained of, and (3) a
likelihood that the injury will be redressed by a favorable decision.” In re Nickelodeon
Consumer Privacy Litig., 827 F.3d 262, 272 (3d Cir. 2016) (citation and internal quotation marks
omitted). To establish an injury-in-fact, Plaintiff must show that she has suffered “an invasion of
a legally protected interest” that is both “actual or imminent, not conjectural or hypothetical” and
“concrete and particularized.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation
omitted). 4
The Third Circuit recently held that “the actual or threatened injury required by Art[icle]
III may exist solely by virtue of statutes creating legal rights, the invasion of which creates
standing.” In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 636 (3d. Cir.
2017) (citation and internal quotation marks omitted) (emphasis in original). A concrete injury
has been pled when one sues under a statute alleging “the very injury [the statute] is intended to
prevent.” Sussino v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (citation and
internal quotation marks omitted).
The FDCPA is a remedial statute enacted to “eliminate abusive debt collection practices.”
15 U.S.C. § 1692(e). The Statute states that “[a] debt collector may not use any false, deceptive,
or misleading representation or means in connection with the collection of any debt.” 15 U.S.C.
4

The fact that Plaintiff asserts a claim on behalf of a putative class does not affect our
standing analysis. “That a suit may be a class action . . . adds nothing to the question of
standing, for even named plaintiffs who represent a class ‘must allege and show that they
personally have been injured, not that injury has been suffered by other, unidentified members of
the class to which they belong.’” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40
n.20 (1976) (quoting Warth v. Seldin, 422 U.S 490, 502 (1975)).
5

§ 1692e. “The FDCPA gives a consumer the right to sue for damages for any violation.”
Medina v. Allianceone Receivables Mgmt., Inc., No. 16-4664, 2017 WL 220328, at *1 (E.D. Pa.
Jan. 19, 2017) (citing 15 U.S.C. § 1692k). Through the FDCPA, “Congress identified an
existing concrete harm (being subjected to specific abusive debt-collection practices) that, by
itself, was inadequate to establish standing and elevated it to the status of a legally cognizable
injur[y] (by providing consumers with a new, substantive right to be free from abusive debtcollection practices . . . .).” Reed v. IC Sys., Inc., No. 15-279, 2017 WL 89047, at *3 (W.D. Pa.
Jan. 10, 2017) (citation and internal quotation marks omitted). “The FDCPA is designed to
protect the consumer from the inherent harm caused when a debt collector, in seeking to collect a
debt, is not straight with the consumer but instead makes a false or deceptive statement to
achieve its purpose.” Medina, 2017 WL 220328, at *1.
Here, Plaintiff’s Complaint states that that “Plaintiff . . . suffered harm as a direct result
of the abusive, deceptive, and unfair collection practices described herein.” (Compl. ¶ 57.) In
addition, Plaintiff alleges that the Letter violated her “right to be free from abusive debt
collection practices.” (Id. ¶ 54.) This injury goes to the core interest that Congress sought to
protect—a debtor’s right to be free from unfair debt collection practices. See 15 U.S.C. § 1692e.
Accordingly, Plaintiff’s allegations establish a legally cognizable injury under the FDCPA,
which establishes standing in this Court.
B.

Failure to State a Claim

Defendant contends that even if Plaintiff has standing, the Complaint should be dismissed
for failure to state a claim for relief under the FDCPA. Plaintiff argues that Defendant falsely
implied that a communication came from an attorney, in violation of § 1692e(3) of the FDCPA,
and threatened to take legal action that cannot legally be taken, in violation of § 1692e(5).

6

“Because the FDCPA is a remedial statute, [courts] construe its language broadly, so as
to effect its purpose.” Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006) (internal
citation omitted). Courts analyze a debt collector’s statements from the perspective of the “least
sophisticated debtor.” Id. Under the least sophisticated debtor standard, a letter is deceptive
when “it can reasonably be read to have two or more different meanings, one of which is
accurate.” Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir. 2008)
(citation and internal quotation marks omitted); Wilson v. Quadramed Corp., 225 F.3d 350, 354
(3d Cir. 2000). However, while the least sophisticated debtor is a low standard, it “prevents
liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient
of reasonableness and presuming a basic level of understanding and willingness to read with
care.” Lesher v. Law Offices of Mitchell N. Kay, 650 F.3d 993, 997 (3d Cir. 2011) (citation
omitted).
1.

Section 1692e(3)

Plaintiff argues that the Letter violates Section 1692e(3) of the FDCPA because the
communication falsely implies that an attorney, acting as an attorney, is meaningfully involved
in the debt collection. The FDCPA provides that debt collectors may not make a “false
representation or implication that any individual is an attorney or that any communication is
from an attorney” in their debt collection communications. 15 U.S.C. § 1692e(3). Plaintiff
contends that the Letter, which includes “Solomon and Solomon, P.C.” in the top right-hand
corner and in the body of the Letter, would confuse a debtor “as to whether Defendant was acting
as an attorney . . . and whether Defendant’s collection letters implied potential legal action.”
(Compl. ¶ 46.) Defendant argues that the Letter is not a false representation because it does not
identify an attorney, or imply that an attorney is working on the case. In addition, Defendant

7

states that the Letter contains the proper disclaimer that the communication was sent by a debt
collector.
Courts in this Circuit have recognized that a debt collection letter not reviewed by a
lawyer, but sent with a law firm letterhead does not run afoul of Section 1692e(3), provided that
the letter contains a satisfactory disclaimer on the front of the document. See, e.g., Hamilton v.
LLM Mgmt., Inc., No. 13-2932, 2016 WL 589869, at *6 (E.D. Pa. Feb. 11, 2016) (holding that
the placement of a disclaimer on the front page of the letter “makes it clear to the average
consumer that the attorney was not, at the time of the letter’s transmission, acting in any legal
capacity”); Davis v. Lyons, Doughty & Veldhuis, P.A., 855 F. Supp. 2d 279, 283 (D. Del. 2012)
(same); Eddis v. Midland Funding, LLC, No. 11-3923, 2012 WL 664812, at *7 (D.N.J. Feb. 28,
2012) (same); Stokes v. Farrell Law Grp., LLC, No. 11-6747, 2012 WL 1455239, at *8 (D.N.J.
Apr. 26, 2012) (same).
Here, the Letter is not signed by an attorney, does not reference attorney involvement,
and does not discuss undergoing attorney or law firm review. In addition, the Letter contains a
disclaimer on the front of it that reads, “[t]his is an attempt to collect a debt. Any information
obtained will be used for that purpose. This communication is from a debt collector.” (Id.) The
Letter does not imply attorney involvement at all, let alone falsely imply it. 5 Accordingly,

5

In addition, Plaintiff alleges new factual averments that were outside the scope of the
original Complaint. (See Pl.’s Resp.) Specifically, Plaintiff attempts to reference Solomon’s
website as a potential cause of debtor confusion. The Letter directs the reader to make their
“payment on [Solomon’s] web site at www.solomonpayments.com.” (Compl. Ex. A.) Plaintiff
argues that “with just a few clicks” the reader can learn that Solomon is a collection law firm.
(Pl.’s Resp. 10.) No authority exists to support Plaintiff’s proposition that reference to a website
has the legal effect of incorporating the entire website into the collection letter, for the purposes
of the FDCPA. Instead, we focus on the communication itself, and the communication itself
does not falsely imply attorney involvement.
8

Plaintiff’s claim that Defendant falsely implied attorney involvement under 15 U.S.C. § 1692e(3)
will be dismissed.
2.

Section 1692e(5)

Plaintiff contends that the Letter violates § 1692e(5) of the FDCPA because the
communication threatens to take legal action that cannot legally be taken. The FDCPA provides
that a debt collector may not “threat[en] to take any action that cannot legally be taken or that is
not intended to be taken.” 15 U.S.C. § 1692e(5). The Letter states: “Please be advised that your
account with Solomon and Solomon P.C. still remains unpaid, and has been reported to the
national credit bureaus. You should act now to resolve this problem!” (The Letter.) The Letter
also states: “This is an attempt to collect a debt. Any information obtained will be used for that
purpose.” (Id.)
In Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 33 (3d Cir. 2011), the Third Circuit held
that a plaintiff failed to state a claim under the FDCPA because “the language of the [debt
collector’s] letter” failed to “explicitly or implicitly threaten litigation.” As support, the Third
Circuit noted that “[a]t the bottom, the letter state[d], in bold, capital letters, ‘THIS IS AN
ATTEMPT TO COLLECT A DEBT.’” Id. Based upon this language, the Third Circuit held
that “[e]ven the least sophisticated consumer would not understand [the] letter to explicitly or
implicitly threaten litigation.” Id. Here, the Letter contains the exact same language as the letter
in Huertas, stating “This is an attempt to collect a debt.” Therefore, we find that the Letter does
not threaten litigation.
In addition, the contents of the Letter do not overshadow this language. The Letter
makes no reference to a threat of legal action. Plaintiff argues that the language “[a]ct now to
resolve this problem!” implies that Defendant could initiate a legal action against her. We

9

disagree. In Wilson v. Quadramed Corp., 225 F.3d 350, 352 (3d Cir. 2000), the Third Circuit
held that the following language did not violate the FDCPA: “Our client has placed your
account with us for immediate collection. We shall afford you the opportunity to pay this bill
immediately and avoid further action against you.” The Court held that the letter made no
demand or threat of litigation, as the letter gave the debtor “an opportunity to pay the debt to
avoid further action.” Id. The Court found that “the language in [the debt collector’s] letter,
‘avoid further action,’ d[id] not convey a sense of urgency or a threat of specific action which
overshadow[ed] the validation notice.” Id. at 360 n.6. Similarly, here the Letter urges Plaintiff
to “act now to resolve this problem!” Plaintiff argues that the Letter’s reference to a “problem”
insinuates a threat of legal action. We disagree. Just as the debt collector’s call to “avoid further
action” in Wilson did not imply a threat of legal action, here Defendant’s call to “solve the
problem” does not imply such a threat.
Accordingly, Plaintiff has not sufficiently alleged a claim under Section 1692e(5) of the
FDCPA. 6

6

Plaintiff also alleges that Defendant violated Section 1692e(10) of the FDCPA, which
provides that debt collectors may not use “any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information concerning a consumer.” 15 U.S.C. §
1692e(10). Plaintiff “submits that her allegations Defendant violated Section 1692e(3) and
Section 1692e(5) of the FDCPA are encapsulated in her allegations that Defendant also violated
Section 1692e(10). Defendant has not argued otherwise.” (Pl.’s Resp. 13 (citation omitted).)
Accordingly, we find that Plaintiff has failed to state a claim under § 1692e(10) of the FDCPA.
10

IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss will be granted.
An appropriate order follows.

BY THE COURT:

_________________________
R. BARCLAY SURRICK, J.

11