Carroll v. USAA Federal Savings Bank

Filing 21

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 12 PARTIAL MOTION to Dismiss 10 Third Amended Complaint Pursuant to Rule 12(b)(6); dismissing Counts III, V, and VI from this action and denying Defendant's Motion to Dismiss for Count VII. Signed by Judge Robert C. Chambers on 3/1/2017. (cc: counsel of record; any unrepresented parties) (jsa)

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

ROBERT CARROLL,
Plaintiff,
v.

CIVIL ACTION NO. 3:16-11120

USAA SAVINGS BANK,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Partial Motion to Dismiss (ECF No. 12).
Defendant argues that the Court should dismiss Counts III, V, VI, and VII of Plaintiff’s Third
Amended Complaint for failure to state a claim pursuant to Federal Rule 12(b)(6). See Def.’s
Mem. of Law in Supp., ECF No. 13, at 1. For the following reasons, the Court GRANTS IN
PART AND DENIES IN PART Defendant’s Motion to Dismiss.
I.

Background
This case involves the efforts used by Defendant to collect upon an alleged debt. In the

Third Amended Complaint, Plaintiff alleges that he fell into arrears upon the debt owed to
Defendant. Pl.’s Third Am. Compl., ECF No. 10, at ¶ 5. Defendant allegedly called and wrote
to Plaintiff in attempts to collect upon the debt. Id. In November of 2013, Plaintiff retained legal
counsel regarding this matter. Id. at ¶ 6. Approximately one month later, one of Defendant’s
employees called Plaintiff, and Plaintiff allegedly informed the employee of his legal
representation. Id. at 7. During that phone call, Plaintiff provided Defendant with Plaintiff’s
attorney’s name and telephone number. Id.

Plaintiff alleges that Defendant continued to call Plaintiff about the debt after learning
about the attorney representation. Id. at ¶ 8. The complaint specifies that Defendant made at
least forty-one phone calls to Plaintiff between December 2013 and February 2014 after notice
was provided on Plaintiff’s legal representation. Id. at ¶ 10. Defendant allegedly has records
that detail each of these phone calls, including the time called, duration of the call, and the
employee whom placed the call. Id. at ¶ 9.
Plaintiff filed suit in the Circuit Court of Cabell County on February 11, 2016. See Pl.’s
Compl., ECF No. 1-1. Plaintiff filed a Second Amended Complaint in state court in November
of 2016. Id. Defendant timely removed the action to this Court on November 18, 2016. See
Def.’s Notice of Removal, ECF No. 1. The Third Amended Complaint alleges seven separate
causes of action: (I) violation of the West Virginia Consumer Credit and Protection Act
(WVCCPA); (II) violation of the West Virginia Computer Crimes and Abuse Act; (III) violation
of the Telephone Harassment Statute; (IV) violation of the Telephone Consumer Protection Act;
(V) negligent supervision; (VI) negligent infliction of emotional distress (NIED); and (VII)
invasion of privacy. Pl.’s Third Am. Compl., ECF No. 10. For these actions, Plaintiff claims
actual and statutory damages, general and punitive damages, and attorneys’ fees and costs.
Defendant’s Motion to Dismiss challenges the legal basis for Counts III, V, VI, and VII.
II.

Legal Standard
Federal Rule 8(a) requires a complaint to include “a short and plain statement of the claim

… showing entitle[ment] to relief.” Fed. R. Civ. P. 8(a)(2). To overcome a motion to dismiss
under Federal Rule 12(b)(6), a complaint must also be plausible. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 546 (2007).

This standard requires a plaintiff to set forth the “grounds” for an

“entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation

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of the elements of a cause of action will not do.” Id. at 555 (internal quotations and citations
omitted). 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) (internal
quotations and citation omitted). Facial plausibility exists when a claim contains “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted).
Accepting the factual allegations in the complaint as true (even when doubtful), the
allegations “must be enough to raise a right to relief above the speculative level ….” Twombly,
550 U.S. at 555 (citations omitted). If the allegations in the complaint, assuming their truth, do
“not raise a claim of entitlement to relief, this basic deficiency should … be exposed at the point
of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal
quotations and citations omitted). Finally, “[a]lthough for the purposes of a motion to dismiss we
must take all of the factual allegations in the complaint as true, we are not bound to accept as true
a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations
and citation omitted).
III.

Discussion
Defendant moves for the Court to dismiss Counts III, V, VI, and VII as a matter of law for

failure to state a claim pursuant to Federal Rule 12(b)(6).
a. Count III: Telephone Harassment Statute
Plaintiff’s third cause of action brings a claim for a violation of the Telephone Harassment
Statute. Pl.’s Third Am. Compl., ECF No. 10, at ¶¶ 22-25. The Telephone Harassment Statute
makes it unlawful for a person to “[m]ake or cause the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the called number.” W. Va. Code § 61-

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8-16(a)(3). The WVCCPA contains similar language, creating a civil violation for “[c]alling any
person … at unusual times or at times known to be inconvenient, with intent to annoy, abuse,
oppress or threaten any person at the called number.” W. Va. Code § 46A-2-125(d). The case
law is clear that a plaintiff has no private civil right of action under the Telephone Harassment
Statute, a criminal statute, because the state legislature created the WVCCPA to account for civil
litigation. See Snuffer v. Great Lakes Educ. Loan Servs., Inc., 97 F. Supp. 3d 827, 832-33 (S.D.W.
Va. 2015); Bailey v. Chase Bank USA, N.A., Civ. No. 3:10-0176, 2010 WL 4867963, at *5 (S.D.W.
Va. Nov. 22, 2010).
This Court has previously determined that the legislature did not intend for the Telephone
Harassment Statute to serve as a mechanism to bring a civil right of action. See Parkins-White v.
World’s Foremost Bank, No. 2:10-cv-00137, 2010 WL 1404384 (S.D.W. Va. Mar. 31, 2010). In
Parkins-White, the Court conducted an analysis of the factors set out in Hurley v. Allied Chemical
Corp., 262 S.E.2d 757, 758 (W. Va. 1980), to determine whether a civil cause of action joins with
a criminal statute. Id. at *4. The Court held that “it is clear that West Virginia did not intend for
Section 61-8-16 to provide a civil cause of action, and recognizing such a cause of action would
be inconsistent with the underlying purposes of the legislative scheme.” Id.
As Plaintiff does not contest this Court’s previous dismissal of claims brought under the
Telephone Harassment Statute, the Court will not repeat the detailed analysis here. Rather,
Plaintiff’s only argument to save Count III from a motion to dismiss is that Defendant has yet to
admit that it acts as a creditor and that Plaintiff acts as a consumer to make the WVCCPA
applicable. Pl.’s Resp., ECF No. 16, at 2. The Court finds such admission irrelevant. Whether
Plaintiff has a successful WVCCPA claim against Defendant does not change the inapplicability
of the Telephone Harassment Statute to a civil case. The West Virginia legislature intentionally

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created a separate civil mechanism for plaintiffs to bring suit against defendants issuing harassing
phone calls. A claim asserting a violation of this criminal statute that punishes the same conduct
fails as a matter of law. Accordingly, the Court GRANTS Defendant’s Motion to Dismiss for
Count III.
b. Count V: Negligent Supervision
In Count V, Plaintiff alleges that “Defendant failed to train, supervise, monitor or otherwise
control its employees to ensure that its employees did not violate the WVCCPA.” Pl.’s Third Am.
Compl., ECF No. 10, at ¶ 28. Defendant challenges this claim because the complaint fails to
allege negligence by any of Defendant’s employees and, thus, cannot sustain a negligent
supervision claim. See Def.’s Mem. of Law in Supp., ECF No. 13, at 7.
West Virginia does not recognize a claim for negligent training or supervision without an
underlying claim for employee negligence. See Heslep v. Ams. for African Adoption, Inc., 890 F.
Supp. 2d 671, 687 (N.D.W. Va. 2012); Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719,
725 (W. Va. 2000). If a complaint fails to identify an employee’s negligent act, the claim for
negligent training or supervision should be dismissed as a matter of law. See Taylor, 538 S.E.2d
at 725 (“While the appellant may be able to show that the hospital breached its duty to supervise
[the nurse], absent a showing of negligence by [the nurse], the appellant is unable to show that the
hospital’s negligence proximately caused her injury.”). A plaintiff must “first make an underlying
showing of a negligence claim as to an employee, and then demonstrate that the employee was
negligently trained or supervised.” Biser v. Mfrs. & Traders Tr. Co., No. 5:15-cv-15761, 2016
WL 5661390, at *8 (S.D.W. Va. Sept. 29, 2016).
Here, Plaintiff alleges that Defendant had a duty to supervise and train its employees, and
that Defendant’s failure to do so caused Plaintiff’s emotional distress. Pl.’s Third Am. Compl.,

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ECF No. 10, at ¶¶ 27-30. Absent from the complaint, however, are separate allegations of
Defendant’s employees’ negligence. Plaintiff argues that the complaint contains allegations of
employee negligence when stating that various employees called Plaintiff after learning about the
attorney representation. Pl.’s Resp., ECF No. 16, at 3. The Court, however, has reviewed the
Third Amended Complaint and finds that Plaintiff inadequately pleaded negligence pertaining to
any of Defendant’s employees. An adequate claim for negligence requires pleading duty, breach
of duty, causation, and injury. See Webb v. Brown & Williamson Tobacco Co., 2 S.E.2d 898, 899
(W. Va. 1939). Plaintiff alleges actions taken with the intent to harass and annoy Plaintiff rather
than any negligent conduct. See Heslep, 890 F. Supp. 2d at 687 (finding allegations of intentional
fraud not enough to plead underlying negligence); see also Selders v. MegaCorp Logistics LLC,
No. 2:14-cv-60, 2014 WL 12638026, at *1 (N.D.W. Va. Dec. 22, 2014) (dismissing negligent
supervision claim when underlying acts were intentional). As Plaintiff alleges only intentional
conduct by Defendant’s employees, Plaintiff fails to assert underlying negligence in the
complaint. 1

Without allegations of underlying employee negligence, a separate claim for

negligent supervision fails as a matter of law, and Defendant’s Motion to Dismiss on Count V
must be GRANTED.
c. Count VI: NIED
Plaintiff’s claim in Count VI alleges NIED caused by the harassing phone calls. The Court
has addressed why an NIED claim could not be sustained for debt collection practices absent
physical injury in Baldwin v. Wells Fargo Fin. Nat’l Bank, Civ. No. 3:16-4841, 2017 WL 63026

1

The only negligent conduct within the complaint falls in Count VI for NIED. As later
discussed, Plaintiff’s NIED claim fails to state a claim and, therefore, is not considered in this
discussion.
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(S.D.W. Va. Jan. 5, 2017). The Court directs the parties to that decision for a more detailed
analysis but will summarize briefly why the instant case justifies the same result.
Like the plaintiff in Baldwin, Plaintiff asserts that Defendant’s actions of negligently
placing telephone calls after having notice of attorney representation caused Plaintiff emotional
distress. Pl.’s Third Am. Compl., ECF No. 10, at ¶¶ 32-35. According to Plaintiff, placing fortyone phone calls in violation of the WVCCPA is extreme and outrageous conduct that exceeds
societal expectations of decent behavior. Pl.’s Resp., ECF No. 16, at 4. However, Plaintiff
suffers the same deficiencies as the plaintiff did in Baldwin. None of the allegations contained in
the complaint justify a bystander theory or one of the other limited expansions of NIED recovery
taken by West Virginia courts. See Brown v. City of Fairmont, 655 S.E.2d 563, 569 (W. Va.
2007) (NIED “must be premised on conduct that unreasonably endangers the plaintiff’s physical
safety or causes the plaintiff to fear for his or her physical safety” (citation omitted)); Marlin v.
Bill Rich Constr., Inc., 482 S.E.2d 620 (W. Va. 1996) (exposure to disease); Ricotilli v,
Summersville Mem’l Hosp., 425 S.E.2d 629 (W. Va. 1992) (dead body exception); Heldreth v.
Marrs, 425 S.E.2d 157 (W. Va. 1992) (bystander theory). The cases Plaintiff cites as support for
the NIED claim recognize only the limited expansion involving fear of physical harm and the dead
body exception. See Pl.’s Resp., ECF No. 16, at 4 (citing Ricotilli and Marlin). Damages for
emotional distress are rarely awarded when claims allege a defendant’s negligence without
resulting physical injury. See Harless v. First Nat’l Bank in Fairmont, 289 S.E.2d 692, 702 (W.
Va. 1982). NIED claims remain “narrowly drawn” by West Virginia courts, and the Court finds
no reason to broadly expand its coverage here. Baldwin, 2017 WL 63026, at *4 (citation omitted).
Moreover, Plaintiff alleges intentional conduct rather than negligent conduct, which further
demonstrates why the NIED claim must fail. See Pl.’s Third Am. Compl., ECF No. 10, at ¶ 32;

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Pl.’s Resp., ECF No. 16, at 4 (noting willful violations with intent to harass).

Therefore,

Plaintiff’s allegations fail to state a claim for NIED as a matter of law, and the Court GRANTS
Defendant’s Motion to Dismiss for Count VI.
d. Count VII: Invasion of Privacy
Plaintiff’s seventh cause of action alleges an invasion of privacy.

West Virginia

recognizes invasion of privacy claims for four areas: “(1) an unreasonable intrusion upon the
seclusion of another; (2) an appropriation of another’s name or likeness; (3) unreasonable publicity
given to another’s private life; and (4) publicity that unreasonably places another in false light
before the public.” Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 85 (W. Va. 1985). Here,
Plaintiff does not identify the specific invasion of privacy theory, so the Court construes the claim
to be brought under the unreasonable intrusion upon the seclusion of another. An “[u]nreasonable
intrusion upon another’s seclusion occurs when ‘[o]ne … 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 West Virginia,
Inc., 640 F. Supp. 2d 803, 817 (S.D.W. Va. 2009) (quoting Rest. (Second) of Torts § 652B (1977));
see also Snuffer, 97 F. Supp. 3d at 835 (“Courts in West Virginia have generally adopted the
Restatement (Second) of Torts § 652B for claims of intrusion upon seclusion.”).
In Baldwin, this Court also discussed whether an invasion of privacy claim can survive a
motion to dismiss when a debtor calls a creditor numerous times after being told of attorney
representation.

See Baldwin, 2017 WL 63026, at *4.

Plaintiff’s allegations parallel the

plaintiff’s allegations in Baldwin with additional details that at least forty-one calls were made
after Defendant allegedly had notice of counsel. See Pl.’s Third Am. Compl., ECF No. 10, at ¶¶
10, 37-40.

These phone calls purportedly caused emotional distress by annoyance,

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inconvenience, harassment, anger, and indignation. Id. at ¶ 40. At the motion to dismiss stage,
the Court only looks to whether Plaintiff sufficiently pleaded facts to maintain a cause of action.
See Rabel v. Huntington Nat’l Bank, No. 2:14-cv-25818, 2015 WL 3540660, at *15 (S.D.W. Va.
June 4, 2015) (allowing invasion of privacy to survive motion to dismiss); Elkins v. Diversified
Collection Servs., Inc., No. 5:13-cv-00927, 2013 WL 3754830, at *7 (S.D.W. Va. July 15, 2013)
(same); Wrenn v. Bank of America Home Loans, LP, No. 5:12-cv-01169, 2013 WL 369611, at *6
(S.D.W. Va. Jan. 30, 2013) (same). Comment b(5) in the Restatement provides an example that
harassing phone calls can support an invasion of privacy for intrusion upon another’s seclusion.
See Restatement (Second) of Torts § 652B, Comment b(5) (1977). Therefore, the Court finds that
Plaintiff’s allegations for invasion of privacy survive the plausibility standards of a motion to
dismiss, and the Court DENIES Defendant’s Motion to Dismiss for Count VII.
IV.

Conclusion
Accordingly, the Court finds that Plaintiff has sufficiently pleaded facts to support the

claim for invasion of privacy in Count VII. However, the Court finds that Plaintiff cannot
maintain a claim under the Telephone Harassment Statute, negligent supervision, or NIED as a
matter of law.

Therefore, the Court DISMISSES Counts III, V, and VI from this action.

Defendant’s Partial Motion to Dismiss (ECF No. 12) is, thus, GRANTED IN PART AND
DENIED IN PART.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

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March 1, 2017