Preisler v. Eastpoint Recovery Grp.

AMIR PREISLER,individually and on behalf of all others similarly situated, Plaintiff, v. EASTPOINT RECOVERY GROUP, INC.,UNITED HOLDINGS GROUP LLC and JOHN DOES 1-25, Defendants.

CASE NO. 20-CV-62268-RAR

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

May 25, 2021

ORDER GRANTING MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS

THIS CAUSE comes before the Court upon Defendant Eastpoint Recovery Group, Inc.'s Motion to Dismiss [ECF No. 13] and United Holdings Group, LLC's Motion for Judgment on the Pleadings [ECF No. 28] (collectively, "Motions"). Having reviewed the Motions, Plaintiff's Response to Eastpoint's Motion [ECF No. 26], Eastpoint's Reply in support of its Motion [ECF No. 27], and being otherwise fully advised, it is hereby

ORDERED AND ADJUDGED that the Motions [ECF Nos. 13, 28] are GRANTED as set forth herein.

BACKGROUND

Plaintiff Amir Preisler, seeking to represent a class of similarly situated Florida debtors, brought the instant action against Eastpoint, UHG, and John Does 1-25 for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq.¹ Compl. [ECF No.1] ¶¶ 3-5. Preisler is a Florida resident. Id. ¶ 7. Some time prior to November 2019, Preisler incurred a debt owed to Pentagon Federal Credit Union ("PFCU"). Id. ¶ 23. Thereafter, PFCU sold the debt to Defendant UHG. Id. ¶ 27. UHG then contracted Eastpoint to collect the debt which originated with PFCU. Id. ¶ 28.

On or about November 7, 2019, Eastpoint sent Preisler a collection letter ("Letter") regarding the alleged debt owed to PFCU. See Letter [ECF No. 1-1]. The Letter lists statutorily required information regarding the debt, including the account number, original creditor, current creditor, and amount due. Id. Additionally, the Letter states: "The account listed above has been assigned to this agency for collection. We are a professional collection agency attempting to collect a debt. Any information we obtain will be used as a basis to enforce collection of this debt." Id. (emphasis added).

Further, conspicuously written in the main body, the Letter states: "Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification." Id. The Letter is signed by "Amy Hall, Account Manager." Id. In the bottom center, the Letter concludes, "THIS IS A COMMUNICATION FROM A DEBT COLLECTOR THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." Id.

On November 6, 2020, exactly one year from the date of the Letter, Preisler filed his Complaint.² The Complaint alleges four counts for FDCPA violations of 15 U.S.C. §§ 1692d,1692e, 1692f, and 1692g. On January 19, 2021, Eastpoint filed its Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1)—on the grounds that Plaintiff does not have standing to sue under the FDCPA—and Rule 12(b)(6)—on the grounds that Plaintiff has failed to state a claim upon which relief can be granted. See generally Mot. [ECF No. 13]. On March 11, 2021, once Eastpoint's Motion was fully briefed, UHG filed a Motion for Judgment on the Pleadings [ECF No. 28] adopting and incorporating the arguments advanced in Eastpoint's Motion.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) requires a court to dismiss an action for lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). A court lacks subject matter jurisdiction over a claim when a plaintiff fails to bear the burden of establishing the "irreducible constitutional minimum" of standing. See Spokeo Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (clarifying the contours of constitutional standing); Warth v. Seldin, 422 U.S. 490, 498 (1975) (The constitutional standing doctrine is a "threshold question in every federal case, determining the power of the court to entertain the suit."); Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) ("In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiff's claims."); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1002 (11th Cir. 2004) ("[S]tanding must exist with respect to each claim.").

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings. FED. R. CIV. P. 12(c). In evaluating a motion for judgment on the pleadings, a court will accept the facts in the complaint as true and view them in the light most favorable to the nonmoving party. Cunningham v. Dist. Attorney's Office for Escambia County, 592 F.3d 1237, 1255 (11th Cir. 2010). Thus, motions for judgment on the pleadings based on a purported failure to state a claim are evaluated using the same standard as a Rule 12(b)(6) motion to dismiss.Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018) (citation omitted). Dismissal based on lack of standing is proper on a motion for judgment on the pleadings as long as the facts alleged in and documents attached to the pleading, viewed in the light most favorable to the plaintiff, warrant judgment in favor of the defendants. In re Schmeglar, 523 B.R. 119, 122 (Bankr. N.D. Ill. 2014); see also Pinecrest Consortium, Inc. v. Mercedes-Benz USA, LLC, No. 13-20803, 2013 WL 1786356, at *2 (S.D. Fla. Apr. 25, 2013) (granting defendant's motion for judgment on the pleadings based on lack of standing).

ANALYSIS

Eastpoint moves to dismiss the Complaint on two grounds. First, Eastpoint argues that Preisler has no standing to bring suit because the allegations in the Complaint do not establish a concrete injury in fact sufficient to maintain Article III standing. Second, Eastpoint argues that Plaintiff has failed to state an FDCPA claim upon which relief can be granted. As a threshold jurisdictional issue, the Court must consider standing first. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998). As explained below, the Court finds that Plaintiff lacks standing. Therefore, the Court need not reach the merits of Eastpoint's alternative bases for dismissal, as those grounds are rendered moot by Plaintiff's lack of standing. Gardner v. Mutz, 962 F.3d 1329, 1338-40 (11th Cir. 2020).

A. Article III Standing

Under Article III of the United States Constitution, federal courts have subject matter jurisdiction only over "Cases" or "Controversies." U.S. Const. art. III, § 2. The case-or-controversy requirement is satisfied only where a plaintiff has standing. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342-43 (2006); Bloomgarden v. Allstate Fire & Cas. Ins. Co., No. 19-62879, 2020 WL 6375169, at *1 (S.D. Fla. Oct. 30, 2020). Standing implicates "the power of the court to entertain the suit." Warth, 422 U.S. at 498. Accordingly, aplaintiff must establish standing before a court can consider the merits of a given claim. TSG Water Res., Inc. v. D'Alba & Donovan Certified Pub. Accountants, P.C., 260 F. App'x 191, 195 (11th Cir. 2007) (citing Steel Co., 532 U.S. at 94) (noting that subject matter jurisdiction is a threshold concern).

Moreover, a plaintiff must establish standing as to each claim he or she asserts.³ See Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008). To establish standing, a plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, 136 S. Ct. at 1547.

B. Preisler Lacks Article III Standing

In this case, Eastpoint only challenges the first requirement—it argues that Preisler has not alleged an injury-in-fact sufficient to confer standing. The Court agrees and finds that Preisler also fails to sufficiently allege traceability. The Court addresses each issue in turn.

1. No Injury in Fact

A plaintiff has suffered an injury in fact if he has "suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). "Each subsidiary element of injury—a legally protected interest, concreteness, particularization, and imminence—must be satisfied." Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996-97 (11th Cir. 2020) (citing Spokeo, 136 S. Ct. at 1545; Lujan, 504 U.S. at 560). "Congress cannot erase Article III's standing requirements by statutorily granting the right to sueto a plaintiff who would not otherwise have standing." Spokeo, 136 S. Ct. at 1547-48. Thus, a plaintiff cannot establish standing merely by alleging "a bare procedural violation, divorced from any concrete harm," id. at 1549, and allegations of FDCPA violations, without more, are insufficient to establish standing. See Hill v. Resurgent Capital Servs., L.P., No. 20-20563, 2020 WL 4429254, at *4 (S.D. Fla. July 31, 2020) ("But mere violation, without a showing of a concrete and particularized injury, is insufficient to convey standing.").

At issue here is whether Preisler's alleged injury is concrete. See Mot. 4-8. Generally, a tangible injury qualifies as concrete. Trichell, 964 F.3d at 997 (citing Spokeo, 136 S. Ct. at 1549). However, the Complaint does not allege Preisler has suffered any tangible injury as a result of receiving the Letter. For instance, Preisler does not allege that he made any payments in response to the Letter. Instead, the essence of Preisler's injury, according to the Complaint, is that he was caused "distress and anxiety" because the inclusion of the word "enforce" in the Letter made the document "threatening and...