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Kostik v. ARS National Services, Inc.

United States District Court, M.D. Pennsylvania

July 22, 2015

LISA KOSTIK, Plaintiff,


WILLIAM J. NEALON, District Judge.

On December 1, 2014, Plaintiff, Lisa Kostik, filed a complaint against Defendant, ARS National Services, Inc., alleging a violation of the Fair Debt Collection Practices Act, 15 U.S.C. ยง 1692 et seq. ("FDCPA"). (Doc. 1). On March 31, 2015, Plaintiff filed a motion for judgment on the pleadings. (Doc. 8). Defendant seeks judgment on Plaintiff's sole claim raised, specifically whether the Defendant's disclosure of Plaintiff's account number embedded in a barcode constitutes a violation of section 1692f(8) of the FDCPA.[1] On April 17, 2015, Plaintiff filed her brief in opposition. (Doc. 10). Defendant has not filed a reply to Plaintiff's brief in opposition, and the deadline for such a filing has expired. See M.D. Pa. L.R. 7.7. The motion is now ripe for disposition, and for the reasons set forth below, Defendant's motion will be denied.


"Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings [a]fter the pleadings are closed-but early enough not to delay trial.'" Abuomar v. Pa. Dep't of Corr., 2015 U.S. Dist. LEXIS 57919, at *5 (M.D. Pa. May 4, 2015) (Brann, J.) (quoting FED. R. CIV. P. 12(c)). "The pleadings are considered closed after an answer is filed, in addition to a reply to any counterclaims asserted in the answer." Id . (citing Atiyeh v. Nat'l Fire Ins. Co. of Hartford, 742 F.Supp.2d 591, 595 (E.D. Pa. 2010)).

When deciding a Rule 12(c) motion for judgment on the pleadings, a district court must view the facts and inferences to be drawn from the pleadings in the light most favorable to the nonmoving party. Green v. Fund Asset Mgmt., L.P., 245 F.3d 214, 220 (3d Cir. 2001). The motion can be granted only if no relief could be afforded under any set of facts that could be provided. Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). "Where, as here, a motion for judgment on the pleadings argues that the plaintiff has failed to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(h)(2)(B), the court considers the motion under the same standard as a Rule 12(b)(6) motion, even though no motion to dismiss under Rule 12(b)(6) has been made." Abuomar, 2015 U.S. Dist. LEXIS 57919, at *5-6 (citing FED. R. CIV. P. 12(h)(2)(B) (failure to state a claim upon which relief can be granted may be raised by a motion under Rule 12(c)); Turbe, 938 F.2d at 428).

"Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted." Krawczyk v. Roaring Brook Twp., 2015 U.S. Dist. LEXIS 86955, at *9 (M.D. Pa. July 6, 2015) (Caputo, J.). "When considering such a motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of his claims." Id . (citing Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000)). The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).

"Federal Rule of Civil Procedure 8 requires only a "short and plaint statement of the claim showing that the pleader is entitled to relief, " in order to "give the defendant fair notice of what the... claim is and the grounds on which it rests."'" Abuomar, 2015 U.S. Dist. LEXIS 57919, at *7 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, "a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory." Abuomar, 2015 U.S. Dist. LEXIS 57919, at *7 (citing Twombly, 550 U.S. at 561). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown'-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)). "As such, [t]he touchstone of the pleading standard is plausibility.'" Krawczyk, 2015 U.S. Dist. LEXIS 86955, at *10 (quoting Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)).

The court "must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). "However, the tenant that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions.'" Abuomar, 2015 U.S. Dist. LEXIS 57919, at *6 (quoting Iqbal, 556 U.S. at 678) (alteration in original). Thus, "[i]n order to survive a motion to dismiss, the complaint must contain sufficient factual matter, which if accepted as true, states a facially plausible claim for relief." Caprio v. Healthcare Revenue Recovery Group, LLC, 709 F.3d 142, 147 (3d Cir. 2013) (citing Bistrian, 696 F.3d at 365). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).


In accordance with the applicable standard of review, the following facts are derived from the complaint and are viewed in the light most favorable to the Plaintiff.

On or about December 5, 2013, Defendant mailed a letter in an envelope addressed to Plaintiff in an attempt to collect a debt from Plaintiff on an account that was identified by a number ending in 6284 ("the Account"). (Doc. 1, p. 7). The Account was accrued for household expenses. (Id.). Defendant regularly uses the mail to attempt to collect debts asserted to be due another. (Id.). The return mailing address was not physically printed on the envelope. (Id.). Rather, the return address was visible through a glassine window and read, in part, as follows: "Department # 5996 P.O. Box 1259 Oaks, PA 19456." (Doc. 1, p. 7). A barcode was printed directly below the return address and visible through the glassine window. (Id. at pp. 7-8). The barcode, when electronically scanned, reveals the Plaintiff's account number that is associated solely with the Account. (Id.); see (Doc. 2, pp. 5-6). By disclosing the barcode to the general public, it increased the risk that Plaintiff would be a victim of identity theft. (Doc. 1, pp. 7-8).

Barcodes can be easily deciphered by consumers using widely-available free applications for "smart phones." (Id. at p. 8). Many consumers have these applications already installed on their "smart phones" to enable them access to quick response codes ("QR code"). (Id.). A QR code is a specific type of barcode that is used in marketing literature by many companies to enable consumers to direct their smart phones to a website merely by scanning the QR code. (Id.). Consequently, many consumers have installed "barcode readers" on their phones to take advantage of the convenience offered by scanning QR codes. (Id.).


Defendant contends that Plaintiff's complaint fails to state a claim under the FDCPA as a matter of law. (Doc. 9, p. 12). First, Defendant argues that the FDCPA was not intended to prohibit the disclosure of benign symbols on any envelope sent by a debt collector as means of communicating with a consumer by use of the mails. (Doc. 9, p. 12). While Defendant concedes that section 1692f(8) prohibits any language or symbol from appearing on a debt collection envelope, it claims that "the section was intended merely to prevent debt collectors from embarrassing debtors by announcing the delinquency on the outside of a debt collection letter envelope.'" (Id.) (quoting Goswami v. Am. Collections Enter., Inc., 377 F.3d 488, 494 (5th Cir. 2004)). According to Defendant, courts, when interpreting section 1692f(8), have "consistently found that benign' language or symbols do not violate [FDCPA's] prohibitions." (Id.). Defendant asks this Court to ...

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