Sasscer v. Donnelly et al

Filing 6

MEMORANDUM andORDER denying 3 Motion to Dismiss Case as Frivolous Signed by Honorable James M. Munley on 5/27/10 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CATHY SASSCER, Plaintiff : No. 3:10cv464 : : (Judge Munley) : : v. : : JAMES D. DONNELLY, and : DOES 1-10, inclusive, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is Defendant James D. Donnelly's motion to dismiss. Having been fully briefed, the matter is ripe for disposition. B a c k g ro u n d T h is case arises out of a dealings over a debt owed by plaintiff. Plaintiff a lle g e s that Defendants violated her rights under the Fair Debt Collection Practices A c t, 15 U.S.C. § 1692, and related state laws. According to plaintiff's complaint, she is an adult who resides in Hawley, Pennsylvania. (Complaint (Doc. 1) (hereinafter "C o m p lt.") at ¶ 4). Defendant James D. Donnelly, a New Jersey lawyer, operates a c o lle c tio n agency and serves as a debt collector under federal law. (Id. at ¶ 6). Plaintiff avers that she incurred a financial obligation of approximately $12,000 to Skylands Community Bank. (Id. at ¶ 8). The debt arose from services provided to p la in tiff for family, personal or household purposes. (Id. at ¶ 9). Plaintiff secured this d e b t with a motor vehicle. (Id. at ¶ 12). Eventually, the bank either sold, assigned,

or transferred the debt to Defendant Donnelly for collection. (Id. at ¶ 10). Donnelly c o m m u n ic a te d with plaintiff in an attempt to collect this debt. (Id. at ¶ 11). D e fe n d a n ts allegedly engaged in behavior that the plaintiff found abusive or h a ra s s in g . The automobile plaintiff used to secure the loan was eventually re p o s s e s s e d , either by the bank or the defendants in the case. (Id. at ¶ 13). Defendants refused plaintiff's request that they provide a receipt showing the amount o b ta in e d from the sale of the vehicle. (Id. at ¶ 14). Defendants told plaintiff she w o u ld have to pay the legal fees defendants incurred in attempting to collect the d e b t. (Id. at ¶ 15). They threatened to repossess plaintiff's property, place liens on h e r home, ruin her credit rating and "drag [plaintiff] into court and embarrass [her]." (Id. at ¶¶ 16-19). Defendants also telephoned plaintiff twice a day. (Id. at ¶ 20). Defendants allegedly also caused plaintiff actual damages. (Id. at ¶ 21). P la in tiff claims she suffered humiliation, anger, anxiety, emotional distress, fear, fru s tra tio n and embarrassment from defendants' conduct. (Id. at ¶ 22). This c o n d u c t, plaintiff contends, was so extreme and outrageous as to be atrocious and u tte rly intolerable in a civilized community. (Id. at ¶ 23). P la in tiff's complaint, filed March 2, 2010, raises four causes of action. Count I a lle g e s violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C.§ 1 6 9 2 . Count II alleges violations of the Pennsylvania Fair Credit Extension U n ifo rm ity Act, 73 P.S. § 2270, through the defendants' violations of the federal s ta tu te . Count III raises a state-law claim for invasion of privacy by intrusion upon

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seclusion. Count IV claims violations of the Pennsylvania Unfair Trade Practices a n d Consumer Protection Law, 73 P.S. § 201-1. Plaintiff then served the complaint on Defendant Donnelly. Donnelly re s p o n d e d by filing the instant motion to dismiss. (Doc. 3). The parties then briefed th e issues, bringing the case to its present posture. Jurisdiction P la in tiff brings this claim pursuant to the FDCPA, 15 U.S.C. § 1692, et seq. This court therefore has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district c o u rts shall have original jurisdiction of all civil actions arising under the Constitution, la w s , or treaties of the United States."). The court has jurisdiction over plaintiff's s ta te law claims pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the d is tric t courts have original jurisdiction, the district courts shall have supplemental ju ris d ic tio n over all other claims that are so related to claims in the action within such o rig in a l jurisdiction that they form part of the same case or controversy under Article II of the United States Constitution."). Legal Standard D e fe n d a n t seeks dismissal of the complaint pursuant to Federal Rule of Civil P ro c e d u re 12(b)(6). W h e n a defendant files a motion pursuant to Rule 12(b)(6), all w e ll-p le a d e d allegations of the complaint must be viewed as true and in the light m o s t favorable to the non-movant to determine whether "under any reasonable re a d in g of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper 3

Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by O a re v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. G o ld s te in , 552 F.2d 564, 565 (3d Cir. 1977) (per curium)). The court may also c o n s id e r "matters of public record, orders, exhibits attached to the complaint and ite m s appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & B e rm a n , 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does n o t have to accept legal conclusions or unwarranted factual inferences. See CurayC ra m e r v. Ursuline Acad. of W ilm in g to n , Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (c itin g Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). The federal rules require only that plaintiff provide "`a short and plain s ta te m e n t of the claim showing that the pleader is entitled to relief,'" a standard w h ic h "does not require `detailed factual allegations,'" but a plaintiff must make "`a s h o w in g , rather than a blanket assertion, of entitlement to relief' that rises `above the s p e c u la tiv e level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (q u o tin g Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The "c o m p la in t must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (q u o tin g Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the p la in tiff pleads factual content that allows the court to draw the reasonable inference th a t the defendant is liable for the conduct alleged." Id. D is c u s s io n

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Defendant Donnelly urges dismissal on two grounds. The court will address e a c h in turn. I. Allegations D e fe n d a n t Donnelly first argues that plaintiff's allegations "lack a factual b a s is ." Defendant attaches copies of correspondence between himself and plaintiff a s well as the loan agreement between the parties. He argues that none of the c la im s in plaintiff's complaint can be supported by this evidence. At this stage of the litigation, defendant's proffered evidence is immaterial to th e question before the court. Defendant has filed a motion to dismiss pursuant to F e d e ra l Rule of Civil Procedure 12(b)(6). Under that rule, plaintiff's complaint need o n ly "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft, 129 S. Ct. at 1949. Plaintiff's complaint, as d e fe n d a n t acknowledges, alleges that she was a debtor, that defendant was e m p lo ye d to collect that debt, and that he made communications to her. Moreover, a s related above, the complaint alleges that defendant used improper methods to c o lle c t that debt. (See Complt. at §§ 25-33) (alleging, among other acts, that d e fe n d a n t use "profane and abusive language"; repeatedly telephoned plaintiff in te n d in g to harass her; misrepresented the status of the debt; threatened seizure of p ro p e rty; threatened legal action; threatened to communicate false credit in fo rm a tio n ; used deceptive means to collect the debt; and tried to collect more than th e amount owed). If plaintiff can prove the alleged acts, she can prevail on her 5

claim under the FDCPA. Defendant's arguments and evidence are more suited for a motion for summary judgment, and the court will not decide the case on those g ro u n d s now. The court will therefore deny the motion on these grounds. II. Venue and Jurisdiction D e fe n d a n t next argues that the court should dismiss the case for lack of ju ris d ic tio n . The defendant insists that the plaintiff's sole federal claim should be d is m is s e d , and that without this single federal claim, there is no reason for the court to hear plaintiff's state-law causes of action. Since the court has determined that p la in tiff has stated a claim under federal law, exercising supplementary jurisdiction o ve r state-law claims is appropriate. The court will deny the motion on these g ro u n d s . See 28 U.S.C. § 1367(a) ("In any civil action of which the district courts h a ve original jurisdiction, the district courts shall have supplemental jurisdiction over a ll other claims that are so related to claims in the action within such original ju ris d ic tio n that they form part of the same case or controversy under Article II of the U n ite d States Constitution."). Defendant also argues that the court should decline to exercise jurisdiction o ve r the case because this forum is not the proper venue. Defendant insists that ve n u e is improper because he does not reside in the district and is not permitted to p ra c tic e law in Pennsylvania. Moreover, the business transaction that led to the in s ta n t action took place in New Jersey, not Pennsylvania, as did the defendant's

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attempt to collect on the debt owed.1 T h e court will deny the defendant's motion on these grounds as well. Federal la w provides that "[a] civil action wherein jurisdiction is not founded solely on d ive rs ity of citizenship may, except as otherwise provided by law, be brought only in (1 ) a judicial district where any defendant resides, if all defendants reside in the s a m e State, (2) a judicial district in which a substantial part of the events or o m is s io n s giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated." 28 U.S.C. § 1391(b). Here, plaintiff resides in this judicial district. She complains of acts that occurred in this district; she re c e ive d phone calls from the defendant at her home, as well as letters and perhaps o th e r forms of communication. As such, "a substantial part of the events or o m is s io n s giving rise" to this action occurred in this district. This court is an a p p ro p ria te venue for the claim. Conclusion F o r the reasons stated above, the court will deny the defendant's motion. An a p p ro p ria te order follows.

Defendant argues that he "sent letters from New Jersey to the Plaintiff" and sued plaintiff in New Jersey court to recover the debt. Presumably the plaintiff, who resides in Pennsylvania, received those demand letters in this district. 7

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CATHY SASSCER, Plaintiff : No. 3:10cv464 : : (Judge Munley) : : v. : : JAMES D. DONNELLY, and : DOES 1-10, inclusive, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 27th day of May 2010, Defendant James D. Donnelly's m o tio n to dismiss (Doc. 3) is hereby DENIED. B Y THE COURT:

s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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