MILLER v. DOYLE & HOEFS LLC et al
Filing
4
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CHAD F. KENNEY ON 2/7/24. 2/7/24 ENTERED AND COPIES E-MAILED.(bw)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DIONDRA MILLER,
Plaintiff,
:
:
:
:
:
:
:
v.
DOYLE & HOEFS LLC, et al.,
Defendants.
CIVIL ACTION NO. 23-CV-4924
MEMORANDUM
KENNEY, J.
FEBRUARY 7, 2024
Plaintiff Diondra Miller initiated this civil action by filing a pro se Complaint against
Doyle & Hoefs LLC (“D&H”) and Amy F. Doyle, Esquire, raising claims under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Miller seeks leave to proceed
in forma pauperis. For the following reasons, the Court will grant Miller leave to proceed in
forma pauperis and dismiss the Complaint.
I.
FACTUAL ALLEGATIONS
Miller contends that Defendants “utilized unfair and deceptive means in the attempt to
collect an alleged debt by intruding upon [her] seclusion.” (See Compl. (ECF No. 2) at 1.) 1
Miller asserts that she is a “consumer” and Defendants are “debt collectors” as those terms are
used in the FDCPA. (Id. at 2, 9.) According to Miller, Defendant Doyle is the “co-owner” of
D&H. (Id. at 2, 10.)
Miller avers that on April 10, 2023, Doyle “contacted the local post office to obtain
[Miller’s] change of address information.” (Id. at 3.) Miller asserts that the request for
boxholder information was made in accordance with 39 C.F.R. § 265.6(d)(4)(ii), and that “PS
1
The Court adopts the pagination supplied by the CM/ECF docketing system.
Form 1093” should only be used in “circumstances stated in Paragraph (d)(5)(i) and (d)(5)(iii).”
(Id.) Miller avers that “39 CFR(d)(5)(i)” provides that “names and addresses of postal service
customers will be furnished only to federal, state or local government agencies upon written
certification that the information is required for the performance of its duties” and “39 CFR
(d)(5)(iii) states that boxholder information may be disclosed only pursuant to a subpoena or
court order.” (Id. at 3-4.) Miller further contends that Defendants did not possess a subpoena or
court order and, instead, “illuding [sic] that they were federal, state, or local government
agencies” obtained boxholder information from the United States Postal Service (“USPS”). (Id.
at 3-4.) Miller alleges that by failing to identify themselves as debt collectors to the USPS,
Defendants violated 15 U.S.C. §§ 1692b(1) and 1692e(10). (Id. at 4.) Miller also asserts that the
Defendants “intruded upon [her] seclusion by failing to fully disclose” that D&H was a debt
collector and by “indirectly suggesting” that they were a government agency in order to obtain
her boxholder information. (Id. at 4-5.)
Attached to the Complaint as an exhibit is an April 18, 2023 letter from Doyle to the
Postmaster for Upper Darby, Pennsylvania wherein Doyle sought an address for Miller. (Id. at
19.) The letter specifically states that it is a “REQUEST FOR CHANGE OF ADDRESS OR
BOXHOLDER INFORMATION NEEDED FOR SERVICE OF LEGAL PROCESS.” (Id.) In
the letter, Doyle identified herself as an attorney and certified that Miller’s address would be
“used solely for service of process in connection with actual or prospective litigation” in
Delaware County. (Id.) Under the heading “FOR POST OFFICE USE ONLY,” a notation was
made indicating that Miller “receive[d] mail as addressed” in the letter. (Id.)
Miller alleges that on or about April 15, 2023, she received a notice dated April 10, 2023
from D&H wherein D&H informed her that it was a debt collector “attempting to collect a debt
2
that [she] allegedly owed to American Express [AMEX].” (Id. at 5-6.) Miller asserts that the
dunning letter did not state that D&H was an attorney for AMEX, but instead used a document
with D&H letterhead informing her that the communication was from a debt collector. (Id. at 6.)
Miller avers that this notification was “misleading and confusing” in violation of the FDCPA.
(Id.) A copy of this letter was attached to the Complaint as an exhibit. In the letter, which is
dated April 10, 2023, D&H advises Miller that it is seeking collection of an outstanding debt on
an AMEX account ending in “x42002.” (Id. at 21.) D&H identified itself in the letter as a “debt
collector . . . trying to collect a debt that “Miller owe[s] to American Express.” (Id.)
Miller notified D&H via “CFPB complaint” 2 submitted April 15, 2023, that it was in
violation of 15 U.S.C. § 1692e(3) of the FDCPA “by implicating that the communication is from
an attorney in the attempt to oppress [her] and coerce [her] out of payment of an alleged debt.”
(Id. at 6, 23.) She also alleged that Defendants were in violation of the Gramm-Leach-Bliley
Act, 15 U.S.C. § 6801, et seq., “for possessing [her] nonpublic personal information without
[her] consent.” 3 (Id.) Miller included an April 13, 2023 cease and desist letter with her CFPB
complaint directing D&H to stop all communication and requests for payment. (Id. at 6-7, 25.)
The Court understands Miller’s use of “CFPB” to refer to the Consumer Financial Protection
Bureau, which provides a mechanism for individuals to submit a complaint about financial
products and services to companies for response. See
https://www.consumerfinance.gov/complaint/ (last visited February 2, 2024).
2
3
Although asserted in her CFPB Complaint, Miller does not allege violations of 15 U.S.C. §
1692e(3) or the Gramm-Leach-Bliley Act in her Complaint before this Court. Even if she had
intended to bring claims under the Gramm-Leach-Bliley Act, the Act does not support a private
cause of action. See, e.g., USAA Fed. Sav. Bank v. PLS Fin. Servs., Inc., 340 F. Supp. 3d 721,
726 (N.D. Ill. 2018) (“[I]t is well-recognized that the [“Gramm-Leach-Bliley Act] does not
provide a private right of action to enforce its rules.” (citing cases)); Barroga-Hayes v. Susan D.
Settenbrino, P.C., No. 10-5298, 2012 WL 1118194, at *5 (E.D.N.Y. Mar. 30, 2012) (same).
3
Miller further indicated that her notice was sent pursuant to 15 U.S.C. § 1692c(c) of the FDCPA.
(Id. at 25.)
D&H responded to the CFPB complaint on April 17, 2023, by stating that “[AMEX]
placed the account with [D&H] on Saturday, April 8, 2023” and a “Demand Letter” was sent to
Miller on Monday, April 10, 2023 informing her of D&H’s representation of AMEX. (Id. at 27.)
D&H also indicated in its response that “3 outbound calls [were made] to Ms. Miller but we
never reached her.” (Id.) Miller’s file at D&H was marked as “cease and desist” and “no further
phone attempts [would] be made.” (Id. at 7, 27.)
Miller asserts that D&H violated the cease and desist on June 2, 2023 by communicating
with her by mail. (Id. at 8.) According to Miller, D&H advised her that AMEX “authorized
[D&H] to make [Miller] a special offer to settle the alleged outstanding balance in exchange for
the reinstatement of the alleged Card Membership.” (Id. at 8.) Miller asserts that she received
this settlement letter on the same day that she “began receiving letters from lawyers regarding
the case” filed by D&H in the Delaware County Court of Common Pleas. (Id. at 7-8.) Miller
contends that because she received letters from other lawyers on the same day she received the
settlement letter, she “must assume that [D&H] used this opportunity to further abuse and
oppress [her] by attempting to coerce payment of an alleged debt.” (Id. at 8.)
Attached to the Complaint as an exhibit is a May 30, 2023 letter from D&H to Miller
indicating that AMEX authorized D&H to “make a special offer” providing Miller with an
“opportunity to regain Card Membership and have [her] account . . . reinstated.” (Id. at 29.) In
order to qualify for reinstatement, Miller was required to pay the full balance owed, and she was
also advised that there were a variety of payment options available to her. (Id. at 29-30.)
4
Based on these allegations, Miller asserts that Defendants violated the following sections
of the FDCPA: (1) 15 U.S.C. § 1692b(1), for failing to fully identify themselves to the USPS;
(2) 15 U.S.C. § 1692c(c), by sending communication after Miller notified them in writing that
she refused to pay and requested that they cease further communication; and (3) 15 U.S.C. §
1692e(10), by using false representations and deceptive means to obtain location information
about her. (Id. at 9-11.) Miller further contends that each of the Defendants are “liable to [her]
in the amount of $1000 pursuant to 15 U.S.C. § 1692k(a)(1).” (Id. at 10-11.)
Miller also asserts a claim for intrusion upon seclusion, contending that Defendants failed
to fully identify themselves to the USPS as debt collectors and by “illuding that the purpose of
the request was required to fulfill their duties as a Federal, State or Government agency.” (Id. at
11-12.) Miller alleges that the intrusion has caused her “to experience anxiety, depression,
mental anguish, [and] lack of sleep.” (Id. at 12-13.) Miller seeks monetary damages for
Defendants’ alleged violations. (Id. at 13-14.)
II.
STANDARD OF REVIEW
The Court will grant Miller leave to proceed in forma pauperis because it appears that
she is incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. The
Court must determine whether the Complaint contains “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotations omitted). ‘“At this early stage of the litigation,’ ‘[the Court will] accept the
facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the
plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . . contains facts
sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir.
5
2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory
allegations do not suffice. Iqbal, 556 U.S. at 678.
As Miller is proceeding pro se, the Court construes the allegations in the Complaint
liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)). However, ‘“pro se litigants still must allege
sufficient facts in their complaints to support a claim.’” Id. (quoting Mala, 704 F.3d at 245).
An unrepresented litigant ‘“cannot flout procedural rules - they must abide by the same rules that
apply to all other litigants.’” Id.
III.
DISCUSSION
A.
Claims Under the FDCPA
“Congress enacted the FDCPA ‘to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.’” Rotkiske v. Klemm, 140 S. Ct. 355, 358 (2019)
(quoting 15 U.S.C. § 1692(e)). “The FDCPA pursues these stated purposes by imposing
affirmative requirements on debt collectors and prohibiting a range of debt-collection practices.”
Id. (citing 15 U.S.C. §§ 1692b-1692j); see also Riccio v. Sentry Credit, Inc., 954 F.3d 582, 585
(3d Cir. 2020) (en banc) (“The FDCPA protects against abusive debt collection practices by
imposing restrictions and obligations on third-party debt collectors.”). Among other things, the
FDCPA prevents debt collectors from engaging in harassing, oppressive or abusive conduct to
collect a debt, § 1692d, making false, deceptive, or misleading representations in connection
with debt collection, § 1692e, and using “unfair or unconscionable means” to collect a debt, §
1692f. To state a claim under the FDCPA, a plaintiff must allege plausibly that “(1) she is a
consumer, (2) the defendant is a debt collector, (3) the defendant’s challenged practice involves
6
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.” Moyer v. Patenaude & Felix, A.P.C.,
991 F.3d 466, 470 (3d Cir. 2021) (internal citations omitted). Where a plaintiff fails to allege
facts supporting each of these elements, the FDCPA claim is not plausible. See Humphreys v.
McCabe Weisberg & Conway, P.C., 686 F. App’x 95, 97 (3d Cir. 2017) (per curiam)
(concluding that FDCPA claim was pled based on “conclusory and speculative statements that
cannot survive a motion to dismiss”).
A “consumer” is defined as “any natural person obligated or allegedly obligated to pay
any debt.” 15 U.S.C. § 1692a(3). “Debt” for purposes of the FDCPA is defined as “any
obligation or alleged 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.” Id. § 1692a(5). The FDCPA defines “debt collector” as “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.” Id. § 1692a(6). In that
regard, the FDCPA “applies to attorneys who ‘regularly’ engage in consumer-debt-collection
activity, even when that activity consists of litigation.” Heintz v. Jenkins, 514 U.S. 291, 299
(1995); Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011); Ahmed v.
W. Coast Servicing Inc., 541 F. Supp. 3d 563, 576 (E.D. Pa. 2021) (finding law firm that
regularly handles debt collection matters to be “debt collector” under the FDCPA). For purposes
of statutory screening of Miller’s Complaint pursuant to 28 U.S.C. § 1915(e), the Court assumes
7
that these definitions are satisfied here and focuses on the fourth element of an FDCPA claim,
i.e., whether Miller has plausibly alleged a violation of the statute.
Miller alleges several specific violations of the FDCPA. According to Miller, Defendants
violated § 1692b(1) because they did not fully identify themselves as debt collectors to the USPS
when they were attempting to acquire her location information. (Compl. at 9, 11.) She further
claims that Defendants violated § 1692c(c) by sending communication after she notified them in
writing that she refused to pay and requested that they cease further communication. (Id. at 1011.) Miller also contends that § 1692e(10) of the FDCPA was violated because Defendants used
false representations and deceptive means to obtain information about her. (Id. at 9-10.) The
Court will address Miller’s allegations in turn.
1.
Section 1692b(1)
According to Miller, Defendants violated § 1692b(1) because they “misrepresented
themselves” and did not identify themselves as debt collectors to the USPS when they were
attempting to acquire Miller’s location information. (Compl. at 4-5, 9, 11.) Relying on 39
C.F.R. § 265.6(d)(4)(ii), Miller further avers that Defendants “stated that the boxholder
information requested was for legal proceedings illuding [sic] that they were federal, state, or
local government agencies requesting information required for the performance of duties, when
in fact they are not Federal, State or local government but are debt collectors.” (Id. at 3.)
The Defendants’ request to the USPS, which Miller appended to her Complaint, indicates
that Miller is mistaken that Defendants were attempting to obtain boxholder information because
the address indicated for Miller was a street address and not a post office box address. (Id. at
19.) Regardless, Miller’s reliance on the version of 39 C.F.R. § 265.6(d) cited in her Complaint
is improper because the version she cites was no longer effective during the time frame of the
8
events she describes in her Complaint. 4 Rather, the version upon which Miller relies was
effective from September 1, 2005 to December 26, 2016. See 39 C.F.R. § 265.6. The current
version of the regulation, in force in April 2023, does not contain the sections to which Miller
refers in her Complaint. 5
Section 1692b(1) requires a debt collector communicating with a third party for the
purpose of acquiring location information about the consumer to “identify himself, state that he
is confirming or correcting location information concerning the consumer, and, only if expressly
requested, identify his employer.” 15 U.S.C. § 1692b(1). While the debt collector is required to
identify himself or herself, § 1692b prohibits the debt collector from stating that the “consumer
owes any debt” (15 U.S.C. § 1692b(2)), and from using “any language or symbol on any
envelope or in the contents of any communication that indicates that the debt collector is in the
debt collection business or that the communication relates to the collection of a debt” (15 U.S.C.
§ 1692b(5)). Accordingly, contrary to Miller’s assertions that Defendants violated § 1692b(1)
because they did not identify themselves as debt collectors to the USPS, it appears that if they
had done so, they may have been in violation of 15 U.S.C. §§ 1692b(2) and (5) of the FDCPA.
The communication that Defendants made to USPS was for the sole purpose of confirming
Miller’s street address. (Compl. at 19.) A debt collector may make such confirmation even if it
has the consumer’s current location to ensure that the address remains current and correct. See
McKinley v. Everest Receivable Servs., Inc., No. 19-1289, 2022 WL 446407, at *17 (W.D.N.Y.
4
Furthermore, Miller relies on 39 C.F.R. §§ 265.6(d)(5)(i) and (iii) (see Compl. at 3-4), whereas
the exhibit she attached to the Complaint specifically notes that the information would be
provided in accordance with 39 C.F.R. § 265.6(d)(4)(ii). (Id. at 3-4, 19.)
5
The current version of 39 C.F.R. § 265.6(d), which was effective as of October 24, 2018,
pertains to responses to requests made pursuant to the Freedom of Information Act as the Act
applies to the USPS. See 39 C.F.R. §§ 265.1 and 265.6.
9
Feb. 14, 2022). Miller has failed to allege a plausible violation of § 1692b(1). Moreover, in
accordance with §§ 1692b(2) and (5), the communication to USPS was limited to confirming or
correcting Miller’s location information, and there was no indication in the communication to
USPS that Defendants were debt collectors or that Miller owed a debt. (Compl. at 19.)
2.
Section 1692c(c)
Miller alleges that Defendants violated § 1692c(c) because even though she instructed
them via letter dated April 13, 2015 to stop all communication and requests for payment,
Defendants sent her a “settlement letter” on June 2, 2023. (Id. at 6-8, 25.) According to Miller,
D&H advised her in the letter that AMEX “authorized [D&H] to make [Miller] a special offer to
settle the alleged outstanding balance in exchange for the reinstatement of the alleged Card
Membership.” (Id. at 8.)
Section 1692c(c) states that “[i]f a consumer notifies a debt collector in writing that the
consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further
communication with the consumer, the debt collector shall not communicate further with the
consumer” subject to certain exceptions, including to notify the consumer that the debt collector
or creditor may invoke ordinary specified remedies or intends to invoke such a remedy. In
analyzing § 1692c(c), the United States Supreme Court has observed that “it would be odd if the
[FDCPA] empowered a debt-owing consumer to stop the ‘communications’ inherent in an
ordinary lawsuit and thereby cause an ordinary debt-collecting lawsuit to grind to a halt.” Heintz
v. Jenkins, 514 U.S. 291, 296 (1995). To the contrary, courts may plausibly understand the
exceptions in § 1692c(c) to treat “court-related document[s]” as notifications that the debt
collector or creditor is seeking ordinary judicial remedies. Id.
10
Specified remedies include filing suit against the debtor, or extending a settlement offer
to the debtor. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“A
settlement offer is an example of a ‘specified remedy’” for the purposes of subsection (c)(2))
(citing Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 399 (6th Cir.1998) (holding that noncoercive settlement offers are excepted communications under § 1692c(c)). An unequivocal and
non-coercive offer to settle a disputed debt for a definite reduced amount is a “specified” remedy
“ordinarily invoked” by a debt collector. See Vazquez v. Pro. Bureau of Collections of
Maryland, Inc., 217 F. Supp. 3d 1348, 1352 (M.D. Fla. Nov. 18, 2016) (citing Smith v. ARS Nat’l
Servs., Inc., 102 F. Supp. 3d 1276, 1279-81 (M.D. Fla. April 20, 2015).
The United States Court of Appeals for the Sixth Circuit reasoned that prohibiting all
offers of settlement under the FDCPA would “be contrary to the purpose of the Act” because it
“would prohibit collectors from sending noncoercive settlement offers as a remedy.” Lewis, 135
F.3d at 389-99. In Lewis, the debt collector made two contacts with the consumer, after the
consumer requested the debt collector cease contact, via one letter and one telephone call. The
letter stated in relevant part:
YOUR ACCOUNT HAS BEEN TRANSFERRED TO MY OFFICE
FOR FINAL REVIEW.
IN A PERCENTAGE OF CASES, I FIND THAT PAYMENT
ARRANGEMENTS MAY NOT HAVE BEEN OFFERED BY OUR
AFFILIATED OFFICE. IN ORDER TO PROVIDE YOU WITH AN
OPPORTUNITY TO PAY THIS DEBT, PLEASE SELECT ONE OF
THE FOLLOWING PAYMENT ARRANGEMENTS AND ENCLOSE
PAYMENT, OR PROVIDE ME WITH A NUMBER WHERE I CAN
CONTACT YOU TO DISCUSS TERMS.
Id. at 396 (bolded emphasis in original). The consumer sued the debt collector asserting that it
violated § 1692c(c) of the FDCPA by sending the letter after the consumer requested that they
cease communications. Id. at 398. In construing the language contained in the debt collector’s
11
letter, the Sixth Circuit decided that the letter fell within the exception of § 1692c(c)(2). Id. at
398-99. In the opinion, the Sixth Circuit further distinguished an offer of a payment plan from a
demand for payment, thus reconciling its reasoning with the FTC’s policy statement. Id.
The United States Court of Appeals for the Third Circuit has also held that prohibiting
settlement offers “would force honest debt collectors seeking a peaceful resolution of the debt to
file suit in order to advance efforts to resolve the debt – something that is clearly at odds with the
language and purpose of the FDCPA.” See Campuzano-Burgos v. Midland Credit Mgmt., Inc.,
550 F.3d 294, 299 (3d Cir. 2008) (citing Lewis, 135 F.3d at 399). “Permitting the use of
settlement letters may allow resolution of a claim without the ‘needless cost and delay of
litigation . . . [and] is certainly less coercive and more protective of the interests of the debtor.’”
Id.
The May 30, 2023 letter from Defendants, which Miller appended to her Complaint (see
Compl. at 29-30), cannot be the basis of a plausible claim for violation of § 1692c(c) since it is
facially compliant with the FDCPA as a straightforward and unequivocal offer to settle the
disputed debt. Miller is invited to accept the offer by paying the specified amount and is advised
that there are payment options available to her. (Id.) Under such circumstances, even the least
sophisticated consumer would read the letter as an actual invocation of a specified remedy. In
fact, Miller refers to the letter in the Complaint as a “settlement letter.” (Compl. at 8.) Further,
the Complaint itself includes no well-pled factual allegations that Defendants engaged in any
allegedly wrongful conduct aside from sending Miller the one letter. 6 The Court therefore
6
Miller avers that she began “receiving letters from law firms displaying embarrassing verbiage”
and “offering services because of the complaint” filed by Defendants in the Delaware County
Court of Common Pleas. (Compl. at 7.) Miller further asserts that because she received the
letters from other law firms on the same day as the settlement letter, she “must assume that
[D&H] used this opportunity to further abuse and oppress [her] by attempting to coerce payment
12
concludes that one, non-threatening letter, containing specific terms of an offer for settlement
with “a variety of payment options available” does not contravene the purposes of the FDCPA,
and falls under the § 1692c(c)(2) exception as a “specified” remedy “ordinarily invoked” by a
debt collector. See Cruz 673 F.3d at 998; Lewis, 135 F.3d at 399 (6th Cir.1998); Vazquez, 217 F.
Supp. 3d at 1352; Flores v. Collection Consultants of California, No. 14-771, 2015 WL
4254032, at *5 (C.D. Cal. Mar. 20, 2015). Miller has therefore failed to allege any plausible
violation of § 1692c(c).
3.
Section 1692e(10)
Section 1692e prohibits the use of any false, deceptive, or misleading representation in
connection with the collection of a debt, including “the use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain information concerning a
consumer.” See 15 U.S.C. § 1692e(10). Subsection 10 is considered a catchall provision within
§ 1692e. Chaga v. Simon’s Agency Inc., No. 21-4110, 2023 WL 2188699, at *4 (E.D. Pa. Feb.
23, 2023). The Third Circuit has explained that:
Violations of § 1692e(10) usually “include impersonating a public official,
falsely representing that unpaid debts will be referred to an attorney, and
misrepresenting the amount of the debt owed.” Harvey v. Great Seneca
Fin. Corp., 453 F.3d 324, 331 (6th Cir. 2006) (internal citations omitted);
see also, e.g., Crossley v. Lieberman, 868 F.2d 566, 571 (3d Cir. 1989)
(holding attorney violated § 1692e(10) when he sent a collection letter that
falsely represented that a mortgage foreclosure case was already in
litigation, that threatened to take action within one week, and that failed to
inform debtor of her right to cure). To state a claim under § 1692e, a false
statement “must be material when viewed through the least sophisticated
debtor’s eyes[,]” which means “it has the potential to affect the decision-
of an alleged debt.” Miller’s assumptions, without more, cannot form the basis for a plausible
claim that Defendants directed or encouraged other lawyers to send her letters regarding a debt
that was the subject of litigation in the state court. See Kyle v. Holina, No. 09-90, 2009 WL
1867671, at *2 (W.D. Wis. June 29, 2009) (“Under Iqbal, assumptions are not enough to state a
claim upon which relief may be granted.”).
13
making process of the least sophisticated debtor[.]” Jensen v. Pressler &
Pressler, 791 F.3d 413, 421 (3d Cir. 2015) (emphasis omitted).
Levins v. Healthcare Revenue Recovery Gp. LLC, 902 F.3d 274, 284 (3d Cir. 2018).
Miller alleges that the April 10, 2023 notice wherein D&H informed her that it was a debt
collector “attempting to collect a debt that [she] allegedly owed to American Express [AMEX]”
was “misleading and confusing” because it did not explicitly state that D&H was an attorney for
AMEX. (Id. at 6.) Miller, from the perspective of a “least sophisticated debtor,” cannot
plausibly claim that this letter is deceptive or misleading. 7 The letterhead identifies D&H as
“ATTORNEYS AT LAW” and indicates that D&H is “attempting to collect a debt” owed to
AMEX. (Id. at 21.) The April 10, 2023 letter from D&H to Miller references the original
account with AMEX ending in “x42002,” indicates that there was a balance of $6,225.73
outstanding on the account, sets forth various options for disputing the debt, and indicates that
she has certain rights under federal law with respect to the collection of the debt. (Id.) See
Shareef v. Consumer Portfolio Servs. Inc., No. 21-4039, 2021 WL 5823011, at *3 (E.D. Pa. Dec.
7, 2021) (“Citing to the [FDCPA] and repeating the language contained in the law is insufficient
to state a claim without a description of what actions CPS took to give rise to the claim against
it.”).
7
In the FDCPA context, courts analyze communications from debt collectors from the
perspective of the “least sophisticated debtor.” Jensen, 791 F.3d at 418; Brown v. Card Serv.
Ctr., 464 F.3d 450, 453 (3d Cir. 2006). “This standard is less demanding than one that inquires
whether a particular debt collection communication would mislead or deceive a reasonable
debtor.” Campuzano-Burgos, 550 F.3d at 298. However, “although this standard protects naive
consumers, it also 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.” Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir.
2000) (internal quotations omitted).
14
Miller also asserts that Defendants “illuding [sic] that they were federal, state, or local
government agencies,” obtained boxholder information from the USPS. (Compl. at 4-5.) Miller
alleges that by failing to identify themselves as debt collectors to the USPS, Defendants violated
1692e(10). (Id.) As noted supra, the communication that Defendants made to USPS was for the
sole purpose of confirming Miller’s street address and there is no indication that Defendants
alluded that they were governmental agencies in order to obtain that information. (Id. at 19.)
Miller’s reliance on an outdated regulation pertaining to boxholder information is inapposite.
Moreover, Defendants actually complied with 15 U.S.C. §§ 1692b(2) and (5) of the FDCPA by
not identifying themselves as debt collectors to the USPS. Miller has therefore failed to allege
any plausible violation of § 1692e(10).
3.
Section 1692k(a)(1)
Miller also references § 1692k(a)(1). This section authorizes an award of “any actual
damage sustained by [any] person as a result of [a defendant’s violation of the FDCPA].” 15
U.S.C. § 1692k(a)(1). Because Miller has not alleged any plausible violations of the FDCPA,
this section is inapplicable.
B.
State Law Claims
Miller asserts that Defendants violated her right to privacy by “intruding upon [her]
seclusion.” (Compl. at 11-13.) The only independent basis for jurisdiction over any such claims
is 28 U.S.C. § 1332(a), which grants a district court jurisdiction over a case in which “the matter
in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.” 8
8
Because the Court has dismissed Miller’s federal claims, it will not exercise supplemental
jurisdiction over any state law claims.
15
Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,’”
which “means that, unless there is some other basis for jurisdiction, ‘no plaintiff [may] be a
citizen of the same state as any defendant.’” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d
99, 104 (3d Cir. 2015) (quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli
Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010)). An individual is a citizen of the
state where he is domiciled, meaning the state where he is physically present and intends to
remain. See Washington v. Hovensa, LLC, 652 F.3d 340, 344 (3d Cir. 2011). A corporation is a
citizen of the state in which it was incorporated as well as where it has its principal place of
business. See U.S.C. § 1332(c)(1). It is the plaintiff’s burden to establish diversity of
citizenship, see Gibbs v. Buck, 307 U.S. 66, 72 (1939); Quaker State Dyeing & Finishing Co.,
Inc. v. ITT Terryphone Corp., 461 F.2d 1140, 1143 (3d Cir. 1972) (stating that, in diversity
cases, the plaintiff must demonstrate complete diversity between the parties and that the amount
in controversy requirement has been met); Jackson v. Rosen, No. 20-2842, 2020 WL 3498131, at
*8 (E.D. Pa. June 26, 2020).
Miller does not allege the citizenship of the parties and it does not appear that the amount
in controversy has been met. 9 Because the allegations do not explicitly reveal the Defendants’
citizenship for purposes of plausibly establishing diversity of citizenship, Miller has failed to
meet her burden of demonstrating that this Court has subject matter jurisdiction over any state
law tort claims she may be raising. See Lincoln Ben. Life Co., 800 F.3d at 105 (citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3); Smith v. Albert Einstein Med. Ctr., No.
08-5689, 2009 WL 1674715, *4 (E.D. Pa. June 11, 2009) (“Diversity jurisdiction requires
9
According to the Complaint, Miller seeks “exemplary damages in the sum of $30,000” for her
state law claim based on the Defendants’ alleged intrusion upon her seclusion. (Compl. at 1314.)
16
complete diversity between the parties. . . . [N]o single Plaintiff may be a citizen of the same
state as any single Defendant.”) (citations omitted). Accordingly, any state law claims will be
dismissed without prejudice for lack of subject matter jurisdiction.
IV.
CONCLUSION
As set forth above, Miller has failed to plausibly allege that either Defendant has violated
any provision of the FDCPA in attempting to collect a debt. The Court will grant Miller leave to
proceed in forma pauperis and dismiss the FDCPA claims with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim. Miller’s state law claims are dismissed without
prejudice for lack of subject matter jurisdiction. An appropriate Order follows.
BY THE COURT:
/s/ Chad F. Kenney
CHAD F. KENNEY, J.
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?