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Becker v. Verizon Pennsylvania, Inc.

United States District Court, W.D. Pennsylvania

June 2, 2017

LISA LABRASCA BECKER, Plaintiff,
v.
VERIZON PENNSYLVANIA, INC., VERIZON PENNSYLVANIA, LLC, and DEBTRECOVERY SOLUTIONS, LLC, Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON, UNITED STATES DISTRICT JUDGE

         Lisa LaBrasca Becker brought this case against Verizon Pennsylvania, LLC and Debt Recovery Solutions, LLC, [1] alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. C.S. §§ 201-1 et seq., the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., and the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”), 73 Pa. C.S. §§ 2270.1 et seq., as well as claims of negligence, invasion of privacy/false light, and intentional infliction of emotional distress (“IIED”). Pending before the Court is Defendants' partial motion to dismiss, in which they seek the dismissal of Becker's negligence and invasion of privacy/false light claims against both Defendants and the UTPCPL claim against Verizon. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

         I. Background[2]

         Sometime in 2012, Becker contacted Verizon after she received a Verizon bill that referenced an account number she did not recognize. A Verizon customer-service representative acknowledged that the account number on the bill did not belong to Becker and told her to disregard it. Nevertheless, Verizon continued to send Becker the same bill on a regular basis. Becker notified Verizon each time she received the erroneous bill, and each time Verizon told her that the bill had been sent in error and to disregard it. Despite those assurances, Verizon submitted the bill to a third-party debt collector, which began contacting Becker to try to collect the allegedly unpaid debt. Although Becker attempted to explain to the debt collectors that Verizon had told her that the bill was incorrect and that she should not be receiving any calls or letters to collect it, the dunning did not stop.

         Verizon all the while assured Becker that this was an “internal error” that Verizon would correct and that the unpaid debt would not be reflected on Becker's credit report. In 2015, however, Becker learned that Verizon had not fixed the error and had in fact reported that Becker was delinquent on the bill to three credit bureaus. Because of this blotch on her credit report, Becker had to obtain a cosigner on a loan she was refinancing. She also had to renegotiate her car loan, and her other creditors reduced her available credit.

         In January 2016, Becker disputed the inaccurate information with Verizon and the three credit bureaus. Two months later, she learned from the credit bureaus that the information had been removed from her credit report. But Verizon did not inform Becker that the negative information had been removed. Instead, Verizon advised Becker that it would have the information removed and restore the account balance (for the account that did not belong to her) to zero if she waived all her rights against Verizon and Debt Recovery Solutions. According to Becker, “Defendants [sic] conduct in attempting to coerce Plaintiff into signing away her rights by holding over her head a negative report that Defendants knew was false constitutes bad faith, malicious and willful conduct, and violations of FCRA and the Unfair Trade Practices and Consumer Protection Law, as well as state statutes and common law.” (ECF No. 18 ¶ 34.)

         Becker filed this case on July 26, 2016. (ECF No. 1.) In response, Defendants moved to dismiss the complaint on various grounds. (ECF No. 13.) Becker thereafter amended her complaint (ECF No. 18), asserting the following claims: violation of the FCRA by Verizon (Count 1), violation of the UTPCPL by Verizon (Count 2), negligence by both Defendants (Count 3), invasion of privacy/false light by both Defendants (Count 4), violation of the FDCPA by Debt Recovery Solutions (Count 5), violation of the FCEUA and UTPCPL by Debt Recovery Solutions (Count 6), and IIED by both Defendants (Count 7, but erroneously labeled Count 8). Defendants have moved to dismiss the UTPCPL claim against Verizon and the claims of negligence and invasion of privacy/false light against both Defendants (Counts 2, 3, and 4, respectively). The motion has been fully briefed (see ECF Nos. 20, 29) and is ripe for disposition.

         II. Jurisdiction and Venue

         The Court has jurisdiction over Becker's claims pursuant to 28 U.S.C. §§ 1331 and 1343. Venue is proper under 28 U.S.C. § 1391(b).

         III. Standard of Review

         In determining the sufficiency of a complaint challenged under Rule 12(b)(6), a district court must conduct a two-part analysis. First, the court should separate the factual and legal elements of the claims. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Second, the court must determine whether the factual matters alleged are sufficient to establish that the plaintiff has a “plausible claim for relief.” Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint, however, need not include “detailed factual allegations.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         The court must also accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to the nonmoving party. See Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). But “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action . . . do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Rather, the complaint must present sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir .2010) (quoting Iqbal, 556 U.S. at 678).

         Ultimately, whether a plaintiff has stated a “plausible claim for relief” is a context-specific inquiry that requires the district court to “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted). The record to consider in making this determination includes the complaint and any “document integral or explicitly relied on in the complaint.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (emphasis and citation omitted). If a claim is vulnerable to dismissal under Rule 12(b)(6), the district court must permit a curative amendment regardless of whether a plaintiff seeks leave to amend unless amendment would be inequitable or futile. Phillips, 515 F.3d at 236 (citation omitted).

         IV. Discussion

         Defendants argue that Becker's UTPCPL claim against Verizon and her claims of negligence and invasion of privacy/false light against both Defendants are preempted by the FCRA. In support of this argument, Defendants cite 15 USC § 1681h(e), which they contend preempts Becker's negligence and invasion of privacy claims, as well as Van Veen v. AT & T Corp., 2011 WL 4001004, at *5 (E.D. Pa. May 25, 2011), in which the court interpreted a separate section of the FCRA, namely 15 U.S.C. § 1681t(b)(1)(F), to preempt a UTPCPL claim. Becker counters that her negligence and invasion of privacy claims are not preempted because she alleges that Defendants engaged in malicious, willful, and intentional conduct, thus removing these claims from the scope of § 1681h(e). Becker argues also that her UTPCPL claim against Verizon is not preempted because the FCRA does not preempt statutory claims “where defendants have acted with intentional and malicious conduct when reporting, or when they act in bad faith and with intentional conduct in attempting to escape responsibility for their conduct.” (ECF No. 29 at 12.)

         Some background discussion is helpful to place the parties' arguments in context. Congress enacted the FCRA to ensure that “consumer reporting agencies [(“CRAs”)] adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a matter which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.” 15 U.S.C. § 1681(b). Section 1681g requires that CRAs, upon request, provide consumers with the ...


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