Rabel v. Huntington National Bank

Filing 37

MEMORANDUM OPINION AND ORDER denying Plaintiff's 5 MOTION to Remand to Circuit Court and for Attorney Fees; granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim; denying as moot Plaintiff's 19 MOTION for Hearing; denying Plaintiff's 28 MOTION to Withdraw Stipulation. Signed by Judge Thomas E. Johnston on 6/4/2015. (cc: attys; any unrepresented party) (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

HUBERT RABEL,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-cv-25818

HUNTINGTON NATIONAL BANK,1
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiff‘s Motion to Remand and for Fees and Costs (the
―Motion to Remand‖), (ECF 5), Plaintiff‘s Motion to Withdraw Plaintiff‘s Stipulation if Remand
is Not Granted and Request for a Hearing (the ―Motion to Withdraw Stipulation‖),2 (ECF 28),
Plaintiff‘s Motion Requesting Hearing on Plaintiff‘s Motion to Remand Case to Circuit Court of
Kanawha County and for Fees and Costs (the ―Request for Hearing on Motion to Remand‖), (ECF
19), and Defendant‘s Motion to Dismiss Plaintiff‘s Complaint (the ―Motion to Dismiss‖), (ECF
10). For the reasons discussed herein, the Court DENIES the Motion to Remand and the Motion to
Withdraw Stipulation, DENIES AS MOOT the Request for Hearing on Motion to Remand, and
GRANTS IN PART and DENIES IN PART the Motion to Dismiss.

1

Defendant notes that ―Plaintiff improperly names Defendant as ‗Huntington National Bank‘‖ and ―[t]he proper party
name is ‗The Huntington National Bank.‘‖ (ECF 10 at 1 n.1.)
2
Plaintiff entitled the Motion to Withdraw Stipulation as the ―Motion to Withdrawal [sic] Plaintiff‘s Stipulation if
Remand is Not Granted and Request for Hearing.‖ (ECF 28 at 1.)

1

I. Background
This case arises out of Defendant‘s efforts to collect a debt from Plaintiff. Plaintiff ―is a
resident of West Virginia.‖ (ECF 1-1 ¶ 1.) Defendant ―is a corporation having its principal offices
in a state other than West Virginia‖ that ―engag[es] directly or indirectly in debt collection . . .
within the State of West Virginia . . . .‖ (Id. ¶¶ 3–4.)
The Complaint alleges that ―[a]fter . . . Plaintiff became in arrears upon [an] alleged
indebtedness to . . . Defendant, . . . Defendant began to engage in collection of such indebtedness.‖
(Id. ¶ 5.) As part of its debt-collection efforts, Defendant allegedly ―use[d] telephone calls placed
to Plaintiff,‖ ―written communications,‖ and ―did otherwise communicate with Plaintiff.‖ (Id.)
The Complaint avers that ―Plaintiff retained . . . counsel to represent Plaintiff‘s interest in
connection with consumer indebtedness on which Plaintiff had become in arrears.‖ (Id. ¶ 6.) The
Complaint further alleges that, after Plaintiff retained counsel, ―the Defendant caused a telephone
collection call to be placed to Plaintiff‘s home,‖ and, during this call, ―Plaintiff told . . .
Defendant‘s employee that Plaintiff was represented by an attorney and gave Defendant‘s
employee . . . Plaintiff‘s attorney‘s name and telephone number.‖ (Id. ¶ 7.) The Complaint alleges
that, following this conversation, ―Defendant continued to cause telephone calls to be placed to . .
. Plaintiff.‖ (Id. ¶ 8.)
The Complaint does not provide further allegations regarding these communications. (See
ECF 1-1.) Instead, it alleges that ―Defendant maintains records of each call placed to . . . Plaintiff
by date, time called, duration of call, the identity of . . . Defendant‘s employee and notes or codes
placed upon such record by . . . Defendant‘s employee.‖ (Id. ¶ 9.) The Complaint also alleges that

2

―[s]uch records will reflect that . . . Defendant placed telephone calls to . . . Plaintiff‘s residential
telephone number after it appeared that Plaintiff was represented by an attorney.‖ (Id. ¶ 10.)
On August 12, 2014, Plaintiff filed the Complaint in the Circuit Court of Kanawha County,
West Virginia. (ECF 1-1.) The Complaint includes four counts: (1) violations of Sections
46A-2-125, 46A-2-125(d), 46-2-128(e), and 46A-2-127(a) and (c) of the West Virginia Consumer
Credit and Protection Act (the ―WVCCPA‖), (id. ¶¶ 11–13); (2) common-law negligence, (id.
¶¶ 14–16); (3) intentional infliction of emotional distress (―IIED‖), (id. ¶¶ 17–20); and (4)
common-law invasion of privacy, (id. ¶¶ 21–25). The Complaint requests a broad array of relief,
including the following: (1) ―[a]ctual damages for the violations of the WVCCPA as authorized by
West Virginia Code §46A-5-101(1);‖ (2) ―[s]tatutory damages in the maximum amount authorized
by West Virginia Code §46A-5-101(1);‖ (3) ―Plaintiff‘s cost of litigation;‖ (4) ―general damages
for . . . Defendant‘s negligence as alleged in Count II;‖ (5) ―general . . . and punitive damages for
Defendant‘s conduct alleged in Count III and IV;‖ and (6) that ―Plaintiff‘s debts be cancelled
pursuant to West Virginia Code §46A-5-105.‖ (Id. at 8–9.)
Following the requests for relief, the Complaint provides the following statements:
―Plaintiff has attached a stipulation pertaining to damages. Plaintiff has capped damages at
$75,000 or less, including costs and attorney‘s fees.‖ (Id. at 9 (emphasis omitted).) Attached to the
Complaint is a notarized stipulation, which was filed contemporaneously with the Complaint and
is signed by Plaintiff, Plaintiff‘s counsel, and a ―Susan E. Rabel‖ (the ―Stipulation‖). (Id. at 10.)
The Stipulation states as follows:
Plaintiff(s) and Attorneys for Plaintiff(s) agree to be bound by the following
stipulation: so long as this case remains in West Virginia Circuit Court or an Article
III Court, the Plaintiff shall neither seek nor accept an amount greater than
$75,000.00 in this case, including any award of attorney‘s fees, but excluding
3

interest and costs. This stipulation has no application, force, or enforceability in an
arbitration forum or other alternative dispute resolution environment except
non-binding mediation as part of a court proceeding.
(Id.)
On September 16, 2014, Defendant removed the case to this Court. (See ECF 1.) In the
Notice of Removal, Defendant asserts that the sole basis for this Court‘s subject-matter
jurisdiction over this case is diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Id. at 1.)
On September 29, 2014, Plaintiff filed the Motion to Remand, in which Plaintiff asserts
that this Court lacks subject-matter jurisdiction over this matter because the amount in controversy
is below the $75,000 requirement for diversity jurisdiction. (ECF 5.) Defendant filed its opposition
to the Motion to Remand on October 16, 2014, (ECF 7), and Plaintiff filed his reply brief on
October 21, 2014, (ECF 8).
On November 20, 2014, Defendant filed the Motion Dismiss. Plaintiff filed his opposition
to the Motion to Dismiss the next day, (ECF 12 & 13), and Defendant filed its reply brief on
November 26, 2014, (ECF 14).
On January 12, 2015, Plaintiff subsequently filed the Request for Hearing on Motion to
Remand. (ECF 19.) To date, Defendant has not filed a responsive briefing to this motion.
Finally, Plaintiff filed the Motion to Withdraw Stipulation on March 27, 2015. (ECF 28.)
Defendant filed its opposition to this motion on April 13, 2015, (ECF 34), and Plaintiff filed his
reply brief the same day, (ECF 35).
As such, these four motions are fully briefed and ready for disposition.
II. Motion to Remand
The sole dispute between the parties as to the Motion to Remand is whether the Court has
4

diversity jurisdiction over this matter. (See ECF 6 at 3–4; ECF 7 at 2.) Defendant argues—and
Plaintiff does not contest—that there is complete diversity between the parties. (See ECF 1 ¶¶ 12–
14; ECF 6 at 3–4.) Rather, the parties dispute whether (1) the amount in controversy exceeds
$75,000; and (2) the Stipulation limits Plaintiff‘s potential recovery at or below the $75,000
threshold for diversity jurisdiction. (ECF 6 at 3–4; ECF 7 at 2–6; ECF 8 at 1–2.) For the reasons
discussed below, the Court finds that the amount in controversy exceeds $75,000 and the
Stipulation

does

not

limit

Plaintiff‘s

potential

recovery

below

the

jurisdictional

amount-in-controversy requirement. As such, the Court finds that it has diversity jurisdiction over
this matter.
A.

Legal Standard
Article III of the United States Constitution provides, in pertinent part, that ―[t]he judicial

Power shall extend . . . to Controversies . . . between Citizens of different States.‖ U.S. Const., Art.
III, §2. ―The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between .
. . citizens of different States.‖ 28 U.S.C. § 1332(a)(1).
Congress provided a right to remove a case from state to federal court under 28 U.S.C.
§ 1441. This statute states, in relevant part:
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a state court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the
place where such action is pending.
28 U.S.C. § 1441(a). Because removal of civil cases from state to federal court infringes state
sovereignty, courts strictly construe the removal statute and resolve all doubts in favor of
5

remanding cases to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)
(―Due regard for the rightful independence of state governments, which should actuate federal
courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the
[removal] statute has defined.‖ (internal quotation marks and citations omitted)); Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (―Because removal jurisdiction
raises significant federalism concerns, we must strictly construe removal jurisdiction.‖ (citation
omitted)); Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993) (noting ―Congress‘
clear intention to restrict removal and to resolve all doubts about the propriety of removal in favor
of retained state court jurisdiction‖ (citation omitted)).
The party asserting federal jurisdiction bears the burden of proof. Landmark Corp. v.
Apogee Coal Co., 945 F. Supp. 932, 935 (S.D. W. Va. 1996). ―A defendant that removes a case
from state court in which the damages sought are unspecified, asserting the existence of federal
diversity jurisdiction, must prove by a preponderance of the evidence that the value of the matter in
controversy exceeds the jurisdictional amount.‖ Id. (citing Gaus v. Miles, Inc., 980 F.2d 564, 567
(9th Cir. 1992)). ―This test is framed alternatively as a requirement that a defendant demonstrate
that it is more likely than not that the amount in controversy exceeds the jurisdictional amount.‖ Id.
(citing Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir. 1996)). ―To satisfy this
burden, a defendant must offer more than a bare allegation that the amount in controversy exceeds
$75,000.‖ Judy v. JK Harris & Co., Civil Action No. 2:10–cv–01276, 2011 WL 4499316, at *3
(S.D. W. Va. Sept. 27, 2011) (citation omitted). ―An allegation without supporting facts will not
satisfy the burden of establishing the amount in controversy.‖ Id. (citation omitted). ―Rather, the
defendant seeking removal must supply evidence to support his claim regarding the amount at
6

issue in the case.‖ Id. (citation omitted). ―In so doing, he may rely upon the entirety of the facts and
circumstances comprising the plaintiff‘s damages claim.‖ Id. (citation omitted).
In evaluating a party‘s claim to federal jurisdiction, the court must base its decision on the
record existing at the time the notice of removal was filed. St. Paul Mercury Indem. Co. v. Red
Cab, 303 U.S. 283, 291 (1938); Dennison v. Carolina Payday Loans, Inc., 549 F.3d 941, 943 (4th
Cir. 2008) (―[F]ederal jurisdiction . . . is fixed at the time the . . . notice of removal is filed.‖ (citing
Mollan v. Torrance, 22 U.S. (9 Wheat) 537, 539 (1824))). In particular, where the plaintiff‘s
monetary demand is not specified in the complaint, ―[t]he value of the matter in controversy . . . is
determined by considering the judgment that would be entered if plaintiff prevailed on the merits.‖
Landmark Corp., 945 F. Supp. at 936–37 (citation omitted). In calculating the amount in
controversy, the court may consider the entire record and make an independent evaluation of
whether the amount in controversy is satisfied. Grubb v. Jos. A. Bank Clothiers, Inc., No. Civ.A.
2:05-0056, 2005 WL 1378721, at *5 (S.D. W. Va. June 2, 2005) (citation omitted); see Taylor v.
Capital One Bank (USA), N.A., Civil Action No. 5:09-cv-00576, 2010 WL 424654, at *2 (S.D. W.
Va. Feb. 4, 2010) (―In evaluating a party‘s claim to federal jurisdiction, this Court may consider
the entire record that exists at the time the assertion of jurisdiction is made.‖ (citing Mullins v.
Harry’s Mobile Homes, Inc., 861 F. Supp. 22, 24 (S.D. W. Va. 1994))).
B.

The Amount in Controversy
Defendant argues that the Court should consider Plaintiff‘s prayer for equitable relief in the

form of the cancellation of his debts pursuant to West Virginia Code § 46A-5-105 when
calculating the amount in controversy. (ECF 1 ¶¶ 19–25; ECF 7 at 2–3. See generally ECF 1-1 at 9
(requesting that ―Plaintiff‘s debts be cancelled pursuant to West Virginia Code § 46A-5-105‖).)
7

Defendant further argues that, including this prayer for equitable relief, the amount in controversy
exceeds the jurisdictional requirement of $75,000. (ECF 1 ¶¶ 24–25; ECF 7 at 5.)
―In actions seeking declaratory or injunctive relief, it is well established that the amount in
controversy is measured by the value of the object of the litigation.‖ Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 347 (1977). In the Fourth Circuit, it is also ―settled that the test for
determining the amount in controversy in a diversity proceeding is ‗the pecuniary result to either
party which [a] judgment would produce.‘‖ Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002)
(quoting Gov’t Emps. Ins. Co. v. Lally, 327 F.2d 568, 569 (4th Cir. 1964)). This ―pecuniary result‖
includes the ―monetary value‖ of a contract or agreement when the validity of that agreement is put
at issue by a party. See id. at 710–11.
In Woodrum v. Mapother & Mapother P.S.C., Inc., Judge Copenhaver addressed whether
the amount in controversy includes the value of the type of equitable relief at issue here. See Civil
Action No. 2:10–00478, 2010 WL 3943732, at *3 (S.D. W. Va. Oct. 5, 2010). In Woodrum—as in
this case—the complaint sought the cancellation of the plaintiff‘s debt to the defendant pursuant to
the willful-violation provision of West Virginia Code § 46A-5-105. Id. The court noted that, if the
plaintiff ―succeeded in proving the alleged willful violations, he may be entitled to cancellation of
the debt, even if that debt was legitimately incurred.‖ Id. Accordingly, the court found that the debt
―should be considered in valuing the litigation.‖ Id.
The Court agrees with Judge Copenhaver‘s analysis in Woodrum. If the Court grants
Plaintiff‘s requested equitable relief, Defendant will face the pecuniary loss of the value of the
debt. As such, the Court includes the value of Plaintiff‘s debt to Defendant when determining the

8

amount in controversy.3 See Dixon, 290 F.3d at 710 (stating that, in a diversity proceeding, the
amount in controversy is determined by the ―pecuniary result‖ to a party). The parties agree that
the value of this debt was $71,223.18 at the time of the removal of this action. (ECF 1 ¶ 4 (―As of
September 11, 2014, the outstanding balance due on the Loan is $71,223.18.‖); ECF 8 at 1 (―The
amount owed on the house as of September [2014] is $71,223.18.‖).)
The amount in controversy easily exceeds the $75,000 jurisdictional requirement once the
value of Plaintiff‘s debt to Defendant is included in the potential recovery. In addition to this
equitable relief, the Complaint requests actual, general, statutory, and punitive damages. (ECF 1-1
at 5–6.) Numerous combinations of the potential recovery associated with the remaining prayers
for relief—along with the $71,223.18 value of the debt—create a total amount in controversy in
excess of $75,000.4
For example, the Complaint includes a request for actual and statutory damages authorized
by West Virginia Code § 46A-5-101(1). (Id. at 8.) Section 46A-5-101(1) provides the following, in
pertinent part:
If a creditor has violated the provisions of this chapter applying to . . . any
prohibited debt collection practice . . . , the consumer has a cause of action to
recover actual damages and in addition a right in an action to recover from the
person violating this chapter a penalty in an amount determined by the court not
less than one hundred dollars nor more than one thousand dollars.

3

Plaintiff argues that, if the Court considers the value of the debt in the amount-in-controversy analysis, it should also
find meritorious Plaintiff‘s claim that this debt should be cancelled. (See ECF 8 at 1–2 (citing W. Va. Code
§ 46A-5-105).) This argument fails to recognize that the amount-in-controversy calculation is based on the potential
recovery ―if plaintiff prevailed on the merits.‖ Landmark Corp., 945 F. Supp. at 936–37 (citation omitted). This
analysis is distinct from the determination of whether Plaintiff‘s claims have merit. See, e.g., id. As such, the Court
declines Plaintiff‘s invitation to conflate the amount-in-controversy and merits analyses.
4
Plaintiff argues that, if the Court includes the debt in the amount-in-controversy determination, the jurisdictional
threshold is still not satisfied because the debt has a value less than $75,000. (ECF 8 at 2.) This argument is unavailing,
as it ignores Plaintiff‘s numerous other prayers for relief. See, e.g., Landmark Corp., 945 F. Supp. at 936–37 (―The
value of the matter in controversy . . . is determined by considering the judgment that would be entered if plaintiff
prevailed on the merits.‖ (citation omitted)).

9

―The court may adjust the damages awarded pursuant to [West Virginia Code § 46A-5-101(1)] to
account for inflation from [September 1, 1974] to the time of the award of damages in an amount
equal to the consumer price index.‖ W. Va. Code § 46A-5-106. As of 2010, one violation of
Section 46A-5-101(1) carried a maximum penalty of $4,414.00. Woodrum, 2010 WL 3943732, at
*4; (see also ECF 1 (Notice of Removal) ¶ 23 (asserting that Plaintiff‘s request for statutory
damages, adjusted for inflation, is valued at ―over $4,800 per penalty‖. See generally ECF 1-1 at 8
(requesting ―[s]tatutory damages in the maximum amount authorized by‖ Section 46A-5-101(1)).)
The statutory penalty for just one of the alleged Section 46A-5-101(1) violations, (see ECF 1-1
¶ 12 (alleging multiple violations of the WVCCPA)), combined with the $71,223.18 value of
Plaintiff‘s debt to Defendant results in an amount in controversy in excess of the $75,000
requirement. As such, absent a limitation on Plaintiff‘s potential recovery, the amount in
controversy is greater than the jurisdictional requirement.
C.

The Stipulation
Plaintiff argues that, regardless of whether the amount in controversy exceeds $75,000, the

Stipulation limits any potential recovery below the jurisdictional threshold amount. (See, e.g., ECF
6 at 3–4.) The Court disagrees and finds that the Stipulation does not limit Plaintiff‘s potential
recovery below the jurisdictional requirement.
―There is no dispute . . . that . . . a plaintiff may attempt to defeat diversity jurisdiction in
this Court by entering into a unilateral binding stipulation limiting its recovery to an amount lower
than the jurisdictional requirement provided for by 28 U.S.C. § 1332.‖ Bailey v. SLM Corp., Civil
Action No. 5:11–cv–00715, 2012 WL 1598059, at *5 (S.D. W. Va. May 7, 2012). To limit the
amount in controversy for jurisdictional purposes, the stipulation must be ―a formal, truly binding,
10

pre-removal stipulation signed by counsel and his client explicitly limiting recovery.‖ McCoy v.
Erie Ins. Co., 147 F. Supp. 2d 481, 485 (S.D. W. Va. 2001) (citing Hicks v. Herbert, 122 F. Supp.
2d 699, 701 (S.D. W. Va. 2000)); see also Shumate v. DynCorp Int’l LLC, Civil Action No. 5:11–
cv–00980, 2012 WL 830241, at *3 (S.D. W. Va. Mar. 9, 2012) (―[T]he formality requirement is
satisfied when a stipulation is signed and notarized.‖ (citation omitted)). Further, ―[t]he stipulation
should be filed contemporaneously with the complaint, which also should contain the sum-certain
prayer for relief.‖ McCoy, 147 F. Supp. 2d at 486.
The Stipulation satisfies many of the McCoy requirements, including that it was signed by
both Plaintiff and his counsel, notarized, and filed contemporaneously with the Complaint. (See
ECF 1-1 at 10.) However, the Stipulation is deficient insofar as it fails to explicitly limit Plaintiff‘s
potential recovery at or below $75,000. In particular, the Stipulation does not specify whether it
encompasses both damages and equitable relief. (See id. But see id. at 6 (―Plaintiff has attached a
stipulation pertaining to damages. Plaintiff has capped damages at $75,000 or less, including costs
and attorney‘s fees.‖ (emphasis added)).) Absent an explicit statement that the Stipulation also
encompasses equitable relief, the Stipulation only operates to limit Plaintiff‘s potential damages
recovery. See, e.g., Womack v. Wells Fargo Bank, N.A., Civil Action No. 1:11-CV-104, 2011 U.S.
Dist. LEXIS, at *9–10 (N.D. W. Va. Aug. 24, 2011) (finding that a stipulation did not encompass
declaratory relief where it stated that ―all of the[] alleged damages set forth in the complaint are not
greater than $75,000‖ and the plaintiffs would not be entitled to recover ―any award of the Court
and/or jury‖ over $75,000); cf. Bohigian v. Flagstar Bank, FSB, Civil Action No. 1:11CV181,
2012 WL 112322, at *4 (N.D. W. Va. Jan. 12, 2012) (finding that the plaintiff‘s stipulation limited
the potential recovery where it ―specifically include[d] equitable relief in its broad disavowal of
11

damages beyond the jurisdictional threshold‖). As such, the Court finds that the Stipulation does
not encompass the value of Plaintiff‘s request for equitable relief.
As noted above, the amount in controversy exceeds the $75,000 jurisdictional requirement
once the Court includes Plaintiff‘s prayer for equitable relief in the potential recovery
determination. The Court therefore finds that it has diversity jurisdiction over this matter. See 28
U.S.C. § 1332(a). Accordingly, the Court DENIES the Motion to Remand, insofar as it requests
remand of this case to the Circuit Court of Kanawha County, West Virginia.5
D.

Fees and Costs
Plaintiff also requests fees and costs based on the argument that ―removal was objectively

unreasonable.‖ (ECF 5; see ECF 6 at 4; ECF 8 at 2.) Contrary to Plaintiff‘s assertion, removal was
both reasonable and appropriate in this case. The Court therefore declines to award Plaintiff fees or
5

In the Motion to Withdraw Stipulation, Plaintiff states that the ―only purpose . . . Plaintiff had in filing the
[Stipulation] was to defeat diversity‖ by ―limiting damages to $75,000.‖ (ECF 28 at 1.) Plaintiff argues that it ―would
be unjust to . . . require . . . Plaintiff to be limited by the [Stipulation] if the [Stipulation] was found to be lacking‖ and
the Court denied the Motion to Remand. (Id. at 2.) Defendant responds that the Motion to Withdraw Stipulation is ―an
improper effort to avoid the consequences of Plaintiff‘s own pleadings,‖ the Stipulation ―is legally binding with
respect to damages,‖ and Defendant ―would be unfairly prejudiced if [the Motion to Withdraw Stipulation] was
granted.‖ (ECF 34 at 1–2.)
The Court does not need to address the potential prejudice to Defendant because the language of the
Stipulation is dispositive as to this motion. The Stipulation provides the following, in pertinent part:
Plaintiff(s) and Attorneys for Plaintiff(s) agree to be bound by the following stipulation: so
long as this case remains in West Virginia Circuit Court or an Article III Court, the Plaintiff shall
neither seek nor accept an amount greater than $75,000 in this case, including any award of
attorney‘s fees, but excluding interest and costs.
(ECF 1-1 at 10 (emphasis added).) By its own terms, the Stipulation provides that it is legally binding if the case is
pending before either the West Virginia Circuit Court or an Article III Court. (See id.) This Court is an Article III
court. E.g., Green v. United States, Civil Action No. 1:11–CV–176, 2013 WL 2389793, at *11 (N.D. W. Va. May 30,
2013). As such, the plain meaning of the signed and notarized Stipulation provides that it remains legally binding in
proceedings before this Court. (See ECF 1-1 at 10.) The language of the Stipulation thus precludes Plaintiff‘s
argument that it would be unjust for the Stipulation to remain binding if the Motion to Remand is denied. Cf. Lincoln
Nat’l Life Ins. Co. v. Johnson, 38 F. Supp. 2d 440, 448–49 (E.D. Va. 1999) (finding that the language of a stipulation
and agreement was ―clear and unambiguous‖ and therefore applying the ―plain meaning of its terms‖ (citation
omitted)).
Further, at the very least, the Stipulation constitutes evidence in the case.
Accordingly, the Court finds that the Stipulation remains legally binding as to damages and DENIES the
Motion to Withdraw Stipulation.

12

costs. See, e.g., Taylor v. Capital One Bank (USA), N.A., Civil Action No. 5:09-cv-00576, 2010
WL 424654, at *4 (S.D. W. Va. Feb. 4, 2010) (declining to award sanctions or attorney‘s fees
when removal was appropriate). See generally Landmark Corp. v. Apogee Coal Co., 945 F. Supp.
932, 940 (S.D. W. Va. 1996) (―An award for costs and expenses is solely within the discretion of
the court.‖ (citing Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993))).
As such, the Court DENIES the Motion to Remand, insofar as it requests fees and costs.
III. Motion to Dismiss
Defendant moves to dismiss the Complaint for failure to state a claim upon which relief can
be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF 11 at 1.) For the reasons
discussed below, the Court grants in part and denies in part the Motion to Dismiss.
A.

Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain ―a short and plain

statement of the claim showing that the pleader is entitled to relief.‖ Allegations ―must be simple,
concise, and direct‖ and ―[n]o technical form is required.‖ Fed. R. Civ. P. 8(d)(1).
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a civil
complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). ―[I]t does not
resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.‖
Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A C. Wright & A.
Miller, Federal Practice and Procedure § 1356 (1990)). ―To survive a motion to dismiss, a
complaint must contain 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) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A court decides whether this standard is met by separating
13

the legal conclusions from the factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations allow the court to reasonably infer that
―the defendant is liable for the misconduct alleged.‖ Id. A motion to dismiss will be granted if,
―after accepting all well-pleaded allegations in the plaintiff‘s complaint as true and drawing all
reasonable factual inferences from those facts in the plaintiff‘s favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his claim entitling him to relief.‖ Edwards, 178
F.3d at 244.6
B.

Count I—Violations of the WVCCPA
Count I alleges that Defendant‘s debt-collection communications violated the following

sections of the WVCCPA: (1) § 46A-2-125; (2) § 46A-2-125(d); (3) § 46A-2-128(e); and (4)
§ 46A-2-127(a) and (c). (ECF 1-1 ¶ 12.) Defendant argues that Count I fails to state valid claims
because it provides only ―conclusory pleadings‖ and ―indistinct assertions.‖ (ECF 11 at 4.)
―The WVCCPA is a ‗comprehensive consumer protection‘ law that incorporates elements
of the Uniform Consumer Credit Code, the National Consumer Act, and older West Virginia
statutes.‖ Countryman v. NCO Fin. Sys., Inc., Civil Action No. 5:09–cv–00288, 2009 WL
1506720, at *2 (S.D. W. Va. May 27, 2009). ―Among its numerous provisions . . . are restrictions
on the manner in which debt collectors may attempt to collect debts.‖ Id.; see also Snuffer v. Great
Lakes Educ. Loan Servs., Inc., Civil Action No. 5:14–cv–25899, 2015 WL 1275455, at *7 (S.D.
W. Va. Mar. 19, 2015) (―[T]he WVCCPA is a detailed statute that describes factual scenarios
6

In his opposition to the Motion to Dismiss, Plaintiff argues that the Court should employ a notice-pleading standard.
(ECF 13 at 1–2.) To this end, Plaintiff provides the following quote regarding his proffered standard: ―Given the
Federal Rules‘ simplified standard for pleading, a court may dismiss a complaint only if it is clear that no relief can be
granted under any set of facts that could be proved consistent with the allegations.‖ (ECF 13 at 2 (quoting Teachers’
Retirement System of La v. Hunter, 477 F.3d 162, 170 (4th Cir. 2007)).) Plaintiff‘s advocacy on behalf of this language
is ill-advised, insofar as Plaintiff ―apparently failed to apprehend that in Twombly the Supreme Court sought to retire
this specific language from the 12(b)(6) standard.‖ Parkman v. Elam, Action No. 3:08-CV-690, 2009 WL 736067, at
*2 n.4 (E.D. Va. Mar. 17, 2009).

14

constituting a violation of each provision.‖). In State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., the Supreme Court of Appeals of West Virginia indicated that the WVCCPA
is to be construed broadly:
The purpose of the CCPA is to protect consumers from unfair, illegal, and
deceptive acts or practices by providing an avenue of relief for consumers who
would otherwise have difficulty proving their case under a more traditional cause
of action. As suggested by the court in State v. Custom Pools, 150 Vt. 533, 536, 556
A.2d 72, 74 (1988), it must be our primary objective to give meaning and effect to
this legislative purpose. Where an act is clearly remedial in nature, we must
construe the statute liberally so as to furnish and accomplish all the purposes
intended.
461 S.E.2d 516, 523 (W. Va. 1995) (internal quotation marks and citations omitted).
1. Section 46A-2-125
Count I first alleges that Defendant violated the WVVCPA by ―engaging in unreasonable
or oppressive or abusive conduct towards the Plaintiff in connection with the attempt to collect a
debt by placing telephone calls to the Plaintiff in violation of West Virginia Code §46A-2-125.‖
(ECF 1-1 ¶ 12(a).) Section 46A-2-125 ―sets out the general principle proscribing oppressive and
abusive conduct by debt collectors.‖ Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp. 2d
495, 501 (S.D. W. Va. 2014). This Section provides the following, in relevant part:
No debt collector shall unreasonably oppress or abuse any person in
connection with the collection of or attempt to collect any claim alleged to be due
and owing by that person or another.
W. Va. Code § 46A-2-125.
The Complaint avers that Defendant ―engage[d] in collection of [the] indebtedness through
the use of telephone calls placed to Plaintiff, by written communications and did otherwise
communicate with Plaintiff to collect the alleged debt.‖ (ECF 1-1 ¶ 5.) The Complaint further
asserts that ―Defendant continued to cause telephone calls to be placed to . . . Plaintiff‖ after
15

―Plaintiff told . . . Defendant‘s employee that Plaintiff was represented by an attorney and gave
Defendant‘s employee . . . Plaintiff‘s attorney‘s name and telephone number.‖ (Id. ¶¶ 7–8.)
These factual allegations are sparse. Nonetheless, Defendant‘s purported conduct in
continuing to contact Plaintiff after being notified that Plaintiff retained an attorney and receiving
that attorney‘s contact information arguably constitutes unreasonably oppressive or abusive
behavior. See, e.g., Snuffer, 2015 WL 1275455, at *7 (denying a motion to dismiss a Section
46A-2-125 claim where the complaint alleged, in part, that the defendant ―called him regarding his
student debt after he had provided it with his attorney‘s contact information‖). As such, for
purposes of the present Rule 12(b)(6) motion, the Court finds that the Complaint states a plausible
Section 46A-2-125 claim.
Accordingly, the Court DENIES the Motion to Dismiss as to the Section 46A-2-125 claim
in Count I.
2. Section 46A-2-125(d)
Count I next alleges that Defendant violated the WVVCPA by ―causing Plaintiff‘s phone
to ring or engaging persons, including the Plaintiff, in telephone conversations repeatedly or
continuously or at unusual times or at times known to be inconvenient, with the intent to annoy,
abuse or oppress the Plaintiff in violation of West Virginia Code §46A-2-125(d).‖ (ECF 1-1
¶ 12(b).) Section 46A-2-125(d) provides that the following specific acts are ―unreasonably
oppressive or abusive‖:
Causing a telephone to ring or engaging any person in telephone conversation
repeatedly or continuously, or at unusual times or at times known to be
inconvenient, with intent to annoy, abuse, oppress or threaten any person at the
called number.

16

Under Section 46A-2-125(d), ―calls can be unreasonably oppressive or abusive in three ways: (1)
when the calls are made ‗repeatedly or continuously;‘ (2) when the calls are made ‗at unusual
times;‘ or (3) when the calls are made ‗at times known to be inconvenient.‘‖ Ferrell v. Santander
Consumer USA, Inc., 859 F. Supp. 2d 812, 816 (S.D. W. Va. 2012) (quoting W. Va. Code
§ 46A-2-125(d)). ―The requisite intent to annoy, abuse, oppress, or threaten can be established by
the volume of telephone calls or the nature of the telephone conversations.‖ Bourne, 998 F. Supp.
2d at 502 (citing Ferrell, 859 F. Supp. 2d at 816).
The Complaint includes no averments regarding the times when Defendant contacted
Plaintiff or the frequency of these calls. (See ECF 1-1.) However, as noted above, the Complaint
does allege that ―Plaintiff told . . . Defendant‘s employee that Plaintiff was represented by an
attorney and gave Defendant‘s employee . . . Plaintiff‘s attorney‘s name and telephone number,‖
but ―Defendant continued to cause telephone calls to be placed to . . . Plaintiff.‖ (Id. ¶¶ 5–8.) For
purposes of the present motion and drawing all inferences from the facts in Plaintiff‘s favor, the
Court finds that these assertions state a plausible claim that Defendant repeatedly or continuously
engaged Plaintiff in telephone conversations with the intent to annoy, abuse, or oppress Plaintiff.
See Wrenn v. Bank of Am. Home Loans, LP, Civil Action No. 5:12–cv–01169, at *4 (S.D. W. Va.
Jan. 30, 2013) (denying a motion to dismiss a Section 46A-2-125 claim that the defendant made
―harassing calls at [the plaintiff‘s] place of employment with the intent to annoy and harass‖ the
plaintiff where the complaint alleged that the plaintiff retained counsel and provided the defendant
with the counsel‘s contact information, but the defendant nonetheless continued placing calls to
the plaintiff).

17

Accordingly, the Court DENIES the Motion to Dismiss as to the Section 46A-2-125(d)
claim in Count I.
3. Section 46A-2-128(e)
Count I also includes a claim that Defendant ―us[ed] unfair or unconscionable means to
collect a debt from Plaintiff in violation of West Virginia Code §46A-2-128(e) by communication
with Plaintiff after it appeared that the Plaintiff was represented by an attorney and the attorney‘s
name and address were known or could be easily ascertained.‖ (ECF 1-1 ¶ 12(c).) Section
46A-2-128 provides, in relevant part:
No debt collector may use unfair or unconscionable means to collect or
attempt to collect any claim. Without limiting the general application of the
foregoing, the following conduct is deemed to violate this section:
...
(e)
Any communication with a consumer whenever it appears that the
consumer is represented by an attorney and the attorney‘s name and address are
known, or could be easily ascertained, unless the attorney fails to answer
correspondence, return phone calls or discuss the obligation in question or unless
the attorney consents to direct communication . . . .
W. Va. Code § 46A-2-128(e). For Section 46A-2-128(e) ―liability to attach, there must be
evidence that the debt collector was aware of some fact, statement, or act that would suggest to a
reasonable person that the debtor is represented by an attorney.‖ Stover v. Fingerhut Direct Mktg.,
Inc., 709 F. Supp. 2d 473, 484 (S.D. W. Va. 2009); see also Bourne, 998 F. Supp. 2d at 504 (stating
that the language of Section 46A-2-128(e) ―indicates something more than strict liability‖ and that
―[t]here exists a knowledge requirement, however minimal, before liability can attach‖).
Furthermore, ―[e]ven if [the defendant knows] that the plaintiff was represented by counsel [in
another matter], [the] defendant would [not] violate § 46A-2-128(e) by communicating with her if
18

it did not appear that she was represented by an attorney with respect to the debt at issue.‖ White v.
Ally Fin. Inc., Civil Action No. 2:12–cv–00384, 2013 WL 1857266, at *4 (S.D. W. Va. May 2,
2013).
Section 46A-2-128(e) also requires that ―the attorney‘s name and address are known, or
could be easily ascertained.‖ ―If the name and address of the debtor‘s attorney are known, a debt
collector could not argue in good faith that it did not ‗appear‘ that the debtor was represented by
counsel.‖ Stover, 709 F. Supp. 2d at 484.
The Complaint alleges that Plaintiff retained ―counsel to represent Plaintiff‘s interest in
connection with consumer indebtedness,‖ Plaintiff informed ―Defendant‘s employee that Plaintiff
was represented by an attorney and gave Defendant‘s employee the Plaintiff‘s attorney‘s name and
telephone number,‖ and ―[t]hereafter, Defendant continued to cause telephone calls to be placed to
the Plaintiff.‖ (ECF 1-1 ¶¶ 6–8.) These allegations state a plausible Section 46A-2-128(e) claim.
See, e.g., Stover, 709 F. Supp. 2d at 484.
Accordingly, the Court DENIES the Motion to Dismiss as to the Section 46A-2-128(e)
claim in Count I.
4. Section 46A-2-127(a) and (c)
Finally, Count I includes a claim that Defendant ―fail[ed] to clearly disclose the name of
the business entity making a demand for money upon Plaintiff‘s indebtedness in violation of West
Virginia Code §46A-2-127(a) and (c).‖ (ECF 1-1 ¶ 12(d).) Section 46A-2-127 states, in pertinent
part:
No debt collector shall use any fraudulent, deceptive or misleading
representation or means to collect or attempt to collect claims or to obtain
information concerning consumers. Without limiting the general application of the
foregoing, the following conduct is deemed to violate this section:
19

(a)
The use of any business, company or organization name while engaged in
the collection of claims, other than the true name of the debt collector‘s business,
company or organization;
...
(c)
The failure to clearly disclose the name and full business address of the
person to whom the claim has been assigned for collection, or to whom the claim is
owed, at the time of making any demand for money . . . .
W. Va. Code § 46A-2-127(a) & (c).
As Defendant correctly notes, the Complaint is completely devoid of any allegations that
Defendant failed to disclose its identity to Plaintiff, or otherwise provided misleading information
when contacting Plaintiff. (See ECF 1-1.) Absent such allegations, the Court ―finds that [Plaintiff]
fails to articulate facts, general or specific, explaining how Defendant could be liable under
Section 46A-2-127.‖ Wrenn v. Bank of Am. Home Loans, LP, Civil Action No. 5:12–cv–01169, at
*3 (S.D. W. Va. Jan. 30, 2013).
As such, the Court GRANTS the Motion to Dismiss as to the Section 46A-2-127(a) and (c)
claim in Count I.
C.

Count II—Negligence
Count II is a negligence claim, which alleges that ―Defendant negligently failed to train,

supervise, monitor or otherwise control its employees to ensure that its employees did not violate
the WVCCPA as alleged in Count I.‖ (ECF 1-1 ¶ 15.) Defendant argues that Plaintiff‘s allegations
related to this claim are deficient because Plaintiff failed to (1) ―allege any duty [Defendant] owed
him,‖ (2) ―provide any facts whatsoever showing how [Defendant] negligently trained, supervised,
or monitored its employees through direct act or omission;‖ or (3) ―show an independent finding of
negligence on the part of a [Defendant] employee.‖ (ECF 11 at 6.)
20

―To maintain a negligence action, a plaintiff must allege ‗that the defendant has been guilty
of some act or omission in violation of a duty owed to the plaintiff.‘‖ Elkins v. Diversified
Collection Servs., Inc., Civil Action No. 5:13–cv–00927, 2013 WL 3754830, at *5 (S.D. W. Va.
July 15, 2013) (quoting Aikens v. Debow, 541 S.E.2d 576, 580 (W. Va. 2000)). ―[A] plaintiff must
[also] allege that the defendant‘s negligence was the proximate cause of the plaintiff‘s injury.‖ Id.
(citation omitted).
Under a negligent supervision theory, ―[a] direct act or omission by a principal is required
to hold it primarily liable.‖ Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp. 2d 495, 506
(S.D. W. Va. 2014)). ―The West Virginia Supreme Court of Appeals has indicated that a claim for
negligent supervision requires an independent finding of negligence on the part of a supervised
employee.‖ Id. (citing Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719, 725 (W. Va.
2000)).
The Complaint fails to allege that Defendant owed Plaintiff a duty or to assert facts
suggesting that Defendant did not train, supervise, monitor or otherwise control its employees.
(See ECF 1-1.) These deficiencies are fatal to Plaintiff‘s negligence claim. See Elkins, 2013 WL
3754830, at *5 (dismissing an identical negligence claim due to the same deficiencies); Wrenn,
2013 WL 369611, at *4 (same).
As such, the Court GRANTS the Motion to Dismiss as to Count II.
D.

Count III—IIED
Count III is an IIED claim, which alleges that Defendant‘s conduct ―was atrocious,

intolerable and extreme so as to exceed the bounds of decency‖ and ―[a]s a result of the
Defendant‘s actions, the Plaintiff has suffered emotional distress.‖ (ECF 1-1 ¶¶ 17–20.) Defendant
21

argues that the Complaint‘s ―threadbare allegations‖ relating to the IIED claim ―are insufficient as
a matter of law.‖ (ECF 11 at 5 (citation omitted).)
The Supreme Court of Appeals for West Virginia provided the following test for IIED:
In order for a plaintiff to prevail on a claim for intentional or reckless
infliction of emotional distress . . . . [i]t must be shown: (1) that the defendant‘s
conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the
bounds of decency; (2) that the defendant acted with the intent to inflict emotional
distress, or acted recklessly when it was certain or substantially certain emotional
distress would result from his conduct; (3) that the actions of the defendant caused
the plaintiff to suffer emotional distress; and (4) that the emotional distress suffered
by the plaintiff was so severe that no reasonable person could be expected to endure
it.
Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W. Va. 1998). ―[T]he role of the trial court is to
first determine whether the defendant‘s conduct may reasonably be regarded as so extreme and
outrageous as to constitute the intentional or reckless infliction of emotional distress.‖ Id.
―Whether conduct may reasonably be considered outrageous is a legal question, and whether
conduct is in fact outrageous is a question for jury determination.‖ Id.
―The extreme and outrageous requirement is a notoriously high burden to meet.‖ Bourne,
998 F. Supp. 2d at 507. ―Conduct by a defendant which ‗is merely annoying, harmful of one‘s
rights or expectations, uncivil, mean-spirited, overzealous, or negligent does not constitute
outrageous conduct.‘‖ Bertolotti v. Prunty, Civil Action No. 3:09–0952, 2010 WL 3743866, at *5
(S.D. W. Va. Sept. 21, 2010) (quoting Hines v. Hills Dep’t Stores, Inc., 193 W. Va. 91, 95 (1994));
see also Bourne, 998 F. Supp. 2d at 507 (―It is not enough that an actor act with tortious or even
criminal intent.‖). Rather, in order for conduct to meet this outrageousness standard, ―the conduct
must be ‗so outrageous in character, and 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 community.‘‖
22

Harless v. First Nat’l Bank in Fairmont, 169 W. Va. 673, 695 (1982) (quoting Restatement
(Second) of Torts § 46, cmt. d). The Supreme Court of Appeals of West Virginia declined to
further ―define what will make a case of outrageous conduct,‖ instead defining ―what it is not on a
case-by-case basis.‖ Hines, 193 W. Va. at 96. As cases addressing this claim illustrate, IIED ―is a
difficult fact pattern to prove.‖ Id. at 96; see Garrett v. Viacom, Inc., No. Civ. A. 1:03CV22, 2003
WL 22740917, at *4 (N.D. W. Va. Aug. 27, 2003) (―[F]ew courts have found that a plaintiff has
met the ‗extreme and outrageous‘ standard under West Virginia law.‖). Compare Bourne, 998 F.
Supp. 2d at 507 (―Twenty-seven unanswered phone calls over the course of eight months at regular
hours of the day cannot be regarded as atrocious or utterly intolerable in a civilized community.‖),
and Tinsley v. OneWest Bank, FSB, 4 F. Supp. 3d 805, 839 (S.D. W. Va. 2014) (finding that ―no
average member of the community would exclaim, ‗Outrageous!‘‖ at the defendant‘s alleged
conduct in implying ―that federal law required [the plaintiff] to . . . place excessively high flood
insurance, despite the [p]laintiff having adequate flood insurance‖), with Elkins, 2013 WL
3754830, at *6 (denying a motion to dismiss an IIED claim where the plaintiff alleged, in part, that
the defendant ―used the name and projected force of the United States government to collect a false
debt‖ and the defendant‘s ―agents refused to explain the basis or nature of the debt‖), and Miller v.
SMS Schloemann-Siemag, Inc., 203 F. Supp. 2d 633, 638–40 (S.D. W. Va. 2002) (denying a
motion to dismiss as to an IIED claim where the plaintiff alleged that ―[i]n exchange for
transporting her mortally injured husband back to the United States,‖ the defendant ―demanded‖
that she sign a written agreement acknowledging the defendant‘s assistance in transporting her
husband and that the defendant did not admit any liability for the husband‘s injuries).

23

Count III provides the following conduct as examples of Defendant‘s purportedly
outrageous conduct: (1) ―Defendant placed telephone calls to Plaintiff after Defendant knew that
Plaintiff was represented by an attorney in gross violation of the WVCCPA;‖ (2) ―Defendant has
adopted policies and procedures without regard to West Virginia law, which violate West Virginia
law and are designed to, or have the effect of inflicting emotional distress upon consumers to
coerce the consumer to pay money to . . . Defendant;‖ (3) ―[i]nsofar as Defendant‘s violations of
the WVCCPA are deemed to be ‗willful,‘ pursuant to West Virginia Code §46A-5-103(4) such
conduct is, as a matter of law, criminal conduct punishable by fine and/or imprisonment;‖ (4)
―[i]nsofar as Defendant‘s conduct caused a phone to ring with the intent to harass, such conduct is
criminal conduct pursuant to West Virginia Code §61-8-16(a)(3) punishable by fine and/or
imprisonment;‖ (5) ―[i]nsofar as Defendant‘s conduct of engaging in telephone conversation with
Plaintiff undertaken with the intent to harass, such conduct is criminal conduct proscribed by West
Virginia Code §61-8-16(a)(4) punishable by fine and/or imprisonment;‖ and (6) ―[i]nsofar as
Defendant‘s conduct constituted knowingly allowing a phone under Defendant‘s control to be
used to harass any person, such conduct is criminal conduct proscribed by West Virginia Code
§ 61-8-16(b) punishable by fine and/or imprisonment.‖ (ECF 1-1 ¶ 18.) Count III further alleges
that, ―[a]s a result of the Defendant‘s actions, the Plaintiff has been annoyed, inconvenienced,
harassed, bothered, upset, angered, harangued and otherwise was caused indignation and distress.‖
(Id. ¶ 20.)
The Court finds that Plaintiff fails to state a claim for IIED. Conduct that merely annoys or
angers someone—as Plaintiff asserts here—does not rise to the level of outrageousness. Bertolotti,
2010 WL 3743866, at *5 (citation omitted); see Hines, 454 S.E.2d at 389 (stating that, in the
24

context of an IIED claim, ―[t]he law intervenes only where the distress is so severe that no
reasonable [person] could be expected to endure it‖ (quoting Kanawha Valley Power Co. v.
Justice, 383 S.E.2d 313, 317 (W. Va. 1989))). But see Snuffer v. Great Lakes Educ. Loan Servs.,
Inc., Civil Action No. 5:14–cv–25899, 2015 WL 1275455, at *8 (S.D. W. Va. Mar. 19, 2015)
(finding that the plaintiff ―state[d] an IIED cause of action‖ where he alleged that the defendant
―called him repeatedly, continuously, and/or at unusual and inconvenient hours‖ and ―the phone
calls included threats or coercion,‖ which resulted in the plaintiff being ―annoyed, inconvenienced,
harassed, bothered, upset, angered, harangued and otherwise . . . caused indignation and distress‖).
The ―outrageous‖ standard is exacting and requires conduct that reasonably elicits reactions that
go well beyond annoyance. See, e.g., Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp. 2d
495, 507 (S.D. W. Va. 2014)). The Complaint does not allege such conduct or reactions and, as a
result, fails to state a plausible IIED claim. See, e.g., Ferrell, 859 F. Supp. 2d 812, 818–19 (S.D.
W. Va. 2012) (―The mere fact that defendant attempted to collect plaintiffs‘ debt by [numerous]
telephone calls . . . over a couple of months is, without more, quite insufficient to support an
intentional infliction of emotional distress claim.‖); see also Bourne, 998 F. Supp. 2d at 507 (―It is
not enough that an actor act with tortious or even criminal intent.‖).
As the Complaint fails to sufficiently allege that Defendant‘s conduct was outrageous, the
IIED claim cannot survive the Motion to Dismiss. See, e.g., Travis, 504 S.E.2d at 421.
Accordingly, the Court GRANTS the Motion to Dismiss as to Count III.
E.

Count IV—Invasion of Privacy
Count IV is an invasion of privacy claim, which alleges that ―[t]he acts of . . . Defendant in

placing telephone calls to Plaintiff‘s home telephone number invaded, damaged and harmed

25

Plaintiff‘s right of privacy.‖ (ECF 1-1 ¶ 23.) Count IV further alleges that, due to Defendant‘s
invasion of Plaintiff‘s right of privacy, ―Plaintiff suffered emotional distress‖ and ―has been
annoyed, inconvenienced, harassed, bothered, upset, angered, harangued and otherwise was
caused indignation and distress.‖ (Id. ¶¶ 24–25.) The Motion to Dismiss does not directly address
Count IV and, instead, generally asserts that all claims in the Complaint fail to meet
minimum-pleading requirements. (ECF 11 at 5; ECF 14 at 1.)
―West Virginia recognizes the common law claim of invasion of privacy, and it includes
the ‗unreasonable intrusion upon the seclusion of another.‘‖ Bourne, 998 F. Supp. 2d at 508
(quoting Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 83 (W. Va. 1984)). ―Unreasonable
intrusion upon another‘s seclusion occurs when ‗one . . . intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his private affairs or concerns, . . . if the
intrusion would be highly offensive to a reasonable person.‘‖ Harbolt v. Steel of W. Va., Inc., 640
F. Supp. 2d 803, 817 (S.D. W. Va. 2009) (quoting Restatement (Second) of Torts § 652B).
Plaintiff provides only sparse and general allegations that Defendant invaded his privacy
by placing annoying and harassing phone calls to his residential telephone number. (See ECF 1-1
¶ 23–25.) ―Plaintiffs have found it difficult in similar cases to produce evidence of an intentional
intrusion on seclusion at the summary judgment stage.‖ Snuffer, 2015 WL 1275455, at *8 (citing
Bourne, 998 F. Supp. 2d at 508, and Ferrell, 859 F. Supp. 2d at 819). However, at the motion to
dismiss stage, courts in this District found that ―harassing phone calls can support an invasion of
privacy claim based on intrusion on seclusion.‖ Id. (citing Restatement (Second) of Torts § 652B,
cmt. b(5)); see, e.g., Elkins v. Diversified Collection Servs., Inc., Civil Action No. 5:13–cv–00927,
2013 WL 3754830, at *7 (S.D. W. Va. July 15, 2013) (―Despite [the plaintiff‘s] failure of averring
26

the number and times of the telephone calls or communications in his pleading, he has alleged
enough details in the pleading that any call on a satisfied debt ‗invaded or intruded‘ upon the
solitude of his private affairs.‖); Wrenn v. Bank of Am. Home Loans, LP, Civil Action No. 5:12–
cv–01169, 2013 WL 369611, at *6 (S.D. W. Va. Jan. 30, 2013) (finding that the plaintiff stated a
plausible invasion of privacy claim where the complaint included allegations that the defendant
placed harassing debt-collection phone calls to the plaintiff). The Court similarly finds that, for
purposes of the present motion, Plaintiff states a plausible invasion of privacy claim.
Accordingly, the Court DENIES the Motion to Dismiss as to Count IV.
IV. Conclusion
For the reasons discussed above, the Court DENIES the Motion to Remand, (ECF 5), and
the Motion to Withdraw Stipulation, (ECF 28). The Court also DENIES AS MOOT the Request
for Hearing on Motion to Remand. (ECF 19.)
The Court further GRANTS the Motion to Dismiss, (ECF 10), as to the West Virginia
Code § 46A-2-127(a) and (c) claim in Count I, as well as Counts II and III. The Court DENIES the
Motion to Dismiss as to the § 46A-2-125, § 46A-2-125(d), and § 46A-2-128(e) claims in Count I,
as well as Count IV.
IT IS SO ORDERED.

27

The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to
counsel of record and any unrepresented party.

ENTER:

28

June 4, 2015