Ngo v. NPAS, Inc.

KELDON NGO v. NPAS, INC.

CIVIL ACTION NO. 20-566 SECTION "R" (3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

January 15, 2021

ORDER AND REASONS

Defendant, NPAS, Inc., moves for summary judgment on the grounds of standing, and that it is not a "debt collector" under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA").¹ Plaintiff, Keldon Ngo, opposes the motion,² and moves for partial summary judgment on the "debt collector" issue.³ Because there is no genuine dispute that defendant is not a debt collector, the Court grants defendant's motion and denies plaintiff's motion.

I. BACKGROUND

This case arises from NPAS's communications with plaintiff and his attorney regarding medical debt. Plaintiff, Keldon Ngo, testified at hisdeposition that he was involved in a motor vehicle accident in April 2019.⁴ Following the accident, plaintiff received medical treatment at Tulane Medical Center.⁵ The medical bills at issue in this case show that plaintiff underwent treatment at Tulane on four occasions: July 22, 2019,⁶ August 20, 2019,⁷ October 15, 2019,⁸ and September 3, 2019.⁹ Plaintiff was a minor when he received those treatments,¹⁰ and he testified that he was covered by his mother's, Lynn Huynh's, medical insurance.¹¹ At the inception of plaintiff's treatment, Tulane presented plaintiff and his mother with "conditions of admission," which plaintiff's mother acknowledged and accepted.¹²

In an affidavit, Don Wright, Senior Vice President of Operations at NPAS's parent company, Parallon Business Solutions, LLC, described how NPAS acquired and managed the medical debt.¹³ On each occasion that plaintiff received medical treatment, Tulane opened an "account."¹⁴ For each account, Tulane billed Huynh's insurer, made contractual adjustments, and finally placed any remaining "patient liability" with NPAS.¹⁵ For two accounts, Tulane billed Huynh directly before it placed the debt with NPAS.¹⁶

Plaintiff submits evidence that NPAS sent a total of seven bills to his mother,¹⁷ and he contends that those letters violated the FDCPA.¹⁸ Plaintiff also claims that defendant called his lawyer, Corey E. Dunbar, several times using Caller ID spoofing, i.e., making a false representation by using another company's name.¹⁹

Ngo brings suit under the FDCPA, alleging six separate grounds: (1) failure to provide initial communication notices required by § 192g(a); (2) failure to cease its collection efforts after plaintiff's counsel requested verification of the debt, in violation of § 1692g(b); (3) overshadowingplaintiff's rights by demanding that plaintiff make payment during the validation period, in violation of § 1692g(b); (4) making false or misleading representations in its initial communication by failing to provide notices required by § 1692e(11); (5) making false or misleading representations by using another company's name in a bill and in several calls to plaintiff's counsel, in violation of § 1692e(14); and (6) failing to disclose its identity in its phone calls with plaintiff's counsel, in violation of § 1692d(6). Defendant now moves for summary judgment, arguing that plaintiff lacks Article III standing, that he lacks statutory standing under the FDCPA, and that defendant is excepted from the FDCPA because it is not a debt collector.²⁰ Plaintiff moves for partial summary judgment on the issue of whether NPAS is a debt collector.²¹ The Court considers the parties' arguments below.

II. LEGAL STANDARD

Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,1075 (5th Cir. 1994) (en banc) (per curiam). "When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth 'ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). The nonmoving party can then defeat the motionby either countering with evidence sufficient to demonstrate the "existence of a genuine dispute of material fact," or by "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for resolution. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" (quoting Celotex, 477 U.S. at 322 (emphasis added))).

III. DISCUSSION

A. Standing

A plaintiff must satisfy the standing requirements of Article III of the U.S. Constitution to establish the existence of an "actual case or controversy" subject to federal jurisdiction. O'Shea v. Littleton, 414 U.S. 488, 493-94 (1974). As the party invoking federal jurisdiction, plaintiff bears the burden of demonstrating each element of standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (construing Article III standing requirements under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA")). Standing requires that (1) the plaintiff suffered an injury-in-fact; (2) the injury is "fairly traceable" to the challenged conduct of the defendant; and (3) it must be "likely, as opposed to merely speculative," that the plaintiff's injury will be redressed by a favorable judicial decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citation omitted).

Defendant argues that Ngo did not suffer an Article III injury because he admitted at his deposition that he had not "been harmed in any way" by the letters that NPAS sent.²² To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural orhypothetical.'" Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). "A 'concrete' injury must be 'de facto'; that is, it must actually exist." Id. (citation omitted). Thus, while an injury need not be tangible, it cannot be merely abstract or hypothetical. Id. at 1548-49. "[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact." Id. at 1549. "But deprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing." Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009); see also Spokeo, 136 S. Ct. at 1549 ("[Plaintiff] could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III."); Sayles v. Advanced Recovery Sys., Inc., 865 F.3d 246, 250 (2017) (affirming district court's holding that plaintiff had standing to bring FDCPA claim because defendant's violation of 15 U.S.C. § 1692e(8) "exposed [plaintiff] to a real risk of financial harm caused by an inaccurate credit rating.").

Since Spokeo, numerous courts have considered whether a violation of the FDCPA, standing alone, is enough to confer standing on a plaintiff. In general, courts have answered that question in the affirmative. See Smith v. Moss Law Firm, P.C., No. 18-2449, 2020 WL 584617, at *4 (N.D. Tex. Feb. 6, 2020) (collecting cases). The jurisprudence distinguishes between theprovision of the FCRA at issue in Spokeo, which contains "procedural requirements," and the FDCPA, which creates "substantive right[s]." Guerrero v. GC Servs. Ltd. P'ship, No. 15-7449, 2017 WL 1133358, at *10 (E.D.N.Y. Mar. 23, 2017) ("[T]he majority of post-Spokeo decisions which have analyzed standing within the context of the FDCPA have determined that, unlike the FCRA section at issue in Spokeo, which contains only procedural requirements, the FDCPA creates a substantive right, the violation of which would itself give rise to a concrete injury."). For example, in Church v. Accretive Health, Inc., 654 F. App'x 990, 994 (11th...