United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge.
Kariann Balon, filed a complaint against Defendant, Enhanced
Recovery Company, Inc., in the Court of Common Pleas of
Luzerne County, Pennsylvania, alleging that Defendant
violated the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq. (“FDCPA”). (Doc. 1).
On March 8, 2016, Defendant removed the action to this Court.
March 16, 2016, Defendant filed a Rule 12(b)(6) motion to
dismiss Plaintiff's complaint. (Doc. 3). On June 2, 2016,
Defendant's motion was denied. (Docs. 9, 10). On June 16,
2016, Defendant filed an answer to the complaint. (Doc. 11).
On June 29, 2016, Defendant filed an amended answer. (Doc.
25, 2016, Plaintiff filed a motion to strike the second and
third affirmative defenses presented in the amended answer.
(Doc. 18). On September 15, 2016, Plaintiff's motion to
strike was granted. (Doc. 22). On October 6, 2016, Defendant
filed a second amended answer. (Doc. 24).
December 28, 2016, Defendant filed a motion to dismiss the
complaint for lack of subject matter jurisdiction and brief
in support. (Docs. 27, 28). On that same date, Plaintiff
filed a motion for summary judgment, statement of undisputed
material facts, and brief in support. (Docs. 29, 30, 31). On
January 11, 2017, Plaintiff filed a brief in opposition to
Defendant's motion to dismiss. (Doc. 32). Also on January
11, 2017, Plaintiff filed a motion to remand the
above-captioned action to state court. (Doc. 33). On January
18, 2017, Defendant filed a brief in opposition to
Plaintiff's motion for summary judgment and response to
Plaintiff's statement of undisputed material facts.
(Docs. 34, 35). On January 25, 2017, Plaintiff filed a brief
in support of her motion to remand. (Doc. 36). On that same
date, Defendant filed a reply to Plaintiff's brief in
opposition to Defendant's motion to dismiss. (Doc. 37).
On February 1, 2017, Plaintiff filed a reply to
Defendant's brief in opposition to Plaintiff's motion
for summary judgment. (Doc. 38). On February 8, 2017,
Defendant filed a brief in opposition to Plaintiff's
motion to remand. (Doc. 39). On February 20, 2017, Plaintiff
filed a reply to Defendant's brief in opposition to
Plaintiff's motion to remand. (Doc. 40).
there are currently three (3) motions pending before the
Court, each of which has been fully briefed. See
(Docs. 27-32, 34-35, 37-40). As discussed in more detail
below, Defendant's motion to dismiss the complaint for
lack of subject matter jurisdiction, (Doc. 27), and
Plaintiff's motion to remand, (Doc. 33), will be denied.
Plaintiff's motion for summary judgment, (Doc. 29), on
the other hand, will be granted.
DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT
complaint makes the following allegations: Defendant has
attempted to collect a debt from Plaintiff on an
“account that was identified by a number ending in
2418.” (Doc. 1-1, p. 2). “On or about February 9,
2015, [Defendant] caused to be mailed a letter addressed to
Plaintiff.” (Id.). “The letter was an
attempt to collect on the Account.” (Id.). The
letter states, in part, that “any indebtedness of
$600.00 or more, which is discharged as a result of a
settlement, may be reported to the IRS as taxable income
pursuant to the Internal Revenue Code 6050 (P) and related
federal law.” (Id.). “The amount of the
alleged debt at the time that the letter was sent was $798.67
. . . . [and] [t]he offer to settle was for $638.94.”
(Id.). “[T]he amount of savings if the offer
was accepted would be $159.73.” (Id. at pp.
Standard of Review
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “They possess only that power
authorized by Constitution and statute, which is not to be
expanded by judicial decree.” Id. (internal
case, Defendant's motion is brought pursuant to Federal
Rule of Civil Procedure 12(b)(1), which allows for the
dismissal of an action for lack of subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). A Rule 12(b)(1) motion
to dismiss can present facial and factual challenges to
subject matter jurisdiction. See Hartig Drug Co. v. Senju
Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016).
presented with a 12(b)(1) motion, “[a] district court
has to first determine . . . whether [that] motion presents a
‘facial' attack or a ‘factual' attack on
the claim at issue, because that distinction determines how
the pleading must be reviewed.” Constitution Party
of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). In
particular, “[a] facial 12(b)(1) challenge, which
attacks the complaint on its face without contesting its
alleged facts, is like a 12(b)(6) motion in requiring the
court to ‘consider the allegations of the complaint as
true.'” Hartig Drug Co., 836 F.3d at 268
(quoting Petruska v. Gannon Univ., 462 F.3d 294, 302
n.3 (3d Cir. 2006)).
as here, the moving party brings a factual challenge to
subject matter jurisdiction, it “attacks allegations
underlying the assertion of jurisdiction in the complaint,
and it allows the defendant to present competing
facts.” Hartig Drug Co., 836 F.3d at
268 (citing Aichele, 757 F.3d at 358). When
presenting a factual challenge:
“the plaintiff [has] the burden of proof that
jurisdiction does in fact exist, ” the court “is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case, ” and
“no presumptive truthfulness attaches to [the]
plaintiff's allegations . . . .”
Id. (alterations in original) (quoting Mortensen
v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977)). “And, when reviewing a factual
challenge, ‘a court may weigh and consider evidence
outside the pleadings.'” Id. (quoting
Aichele, 757 F.3d at 358). “Therefore, a
12(b)(1) factual challenge strips the plaintiff of the
protections and factual deference provided under 12(b)(6)
review.” Id. (citing Davis v. Wells
Fargo, 824 F.3d 333, 348-50 (3d Cir. 2016)). Notably,
“a Rule 12(b)(1) factual evaluation ‘may occur at
any stage of the proceedings, from the time the answer has
been served until after the trial has been
completed.'” Sprague v. Cortes, 2016 U.S.
Dist. LEXIS 170463, at *29 (M.D. Pa. Dec. 9, 2016) (Mariani,
J.) (quoting Mortensen, 549 F.2d at 891-92).
“However, ‘[a] factual jurisdictional proceeding
cannot occur until plaintiff's allegations have been
controverted.'” Wayne Land and Mineral Grp.,
LLC v. Del. River Basin Comm'n, 2017 U.S. Dist.
LEXIS 42622, at *24 (M.D. Pa. Mar. 23, 2017) (Mariani, J.)
(quoting Mortensen, 549 F.2d at 892 n.17). Further,
“‘[t]he party invoking federal jurisdiction bears
the burden of establishing' the elements of standing and
‘each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.'”
Patel v. Allstate N.J. Ins. Co., 648 F. App'x
258, 260 (3d Cir. 2016) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)). At the motion to
dismiss stage, “general factual allegations of injury
resulting from defendant's conduct may suffice.”
Lujan, 504 U.S. at 561. However, “‘[i]n
response to a summary judgment motion . . . the plaintiff can
no longer rest on such “mere allegations, ” but
must “set forth” by affidavit or other evidence
“specific facts, ” Fed.R.Civ.P. 56(e), which for
purposes of the summary judgment motion will be taken to be
true.'” Blunt v. Lower Merion Sch. Dist.,
767 F.3d 247, 279 (3d Cir. 2014) (quoting Lujan, 504
U.S. at 561).
argues in support of its Rule 12(b)(1) motion to dismiss that
the Court lacks subject matter jurisdiction over
Plaintiff's claims because she lacks standing under
Article III of the United States Constitution. (Doc. 28, pp.
10, 14- 22). Defendant reaches this conclusion, at least in
part, as a result of certain responses made by Plaintiff
during discovery. (Doc. 28, pp. 4-6, 20-21); (Doc. 39, pp.
7-8). According to Defendant, a number of these discovery
responses establish that Plaintiff has not suffered a
concrete injury, which, as discussed in more detail below, is
a requisite to establish Article III standing.
(Id.). Clearly, since it relies on facts presented
outside of the pleadings, Defendant presents a factual attack
on the subject matter jurisdiction over Plaintiff's
claim. Hartig Drug Co., 836 F.3d at 268 (citing
Aichele, 757 F.3d at 358).
response, Plaintiff states that it is undisputed “that
she has not suffered a concrete injury, and that
jurisdiction is therefore not appropriate in federal
court.[footnote omitted].” (Doc. 32, p. 1) (emphasis in
original); see (Doc. 28, 10-22); (Doc. 33, p. 1);
(Doc. 36, p. 1); (Doc. 37, p. 4). Rather, “Plaintiff
does dispute whether Defendant is entitled to the relief it
requests in its motion.” (Doc. 32, p. 1). According to
Plaintiff, Defendant's request for dismissal should be
denied “because Plaintiff's claim was initially
filed in state court, the proper recourse here is remand
rather than dismissal.” (Id.).
however, the apparent agreement between the parties
concerning Plaintiff's lack of standing under Article III
is not dispositive. Rather, “federal courts ‘have
an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from
any party.'” Hartig Drug Co., 836 F.3d at
267 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500,
514 (2006); citing Nuveen Mun. Tr. ex rel. Nuveen High
Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692
F.3d 283, 300 n.10 (3d Cir. 2012)). “A court's
non-waiveable obligation to inquire into its own jurisdiction
is most frequently exercised in the negative-that is, by
questioning whether federal jurisdiction exists even when all
parties assume that it does.” Id. “But
‘federal courts [also] have a strict duty to exercise
the jurisdiction that is conferred upon them by Congress and
‘have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is
not.'” Id. (internal citations omitted).
“‘[S]ubject-matter delineations must be policed
by the courts on their own initiative, ' irrespective of
whether that policing of jurisdictional authority is voiced
in the positive or negative.” Id. (citing
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999)). “Thus, regardless of the acquiescence or
wishes of the parties, we must question” the
jurisdictional issue presented in this case. Id.;
see Fuentes v. AR Res., Inc., 2017 U.S. Dist. LEXIS
48923, at *6 (D.N.J. Mar. 31, 2017) (“Although
Defendant does not challenge Plaintiff's constitutional
standing to sue, this Court has an independent obligation to
confirm the existence of standing before proceeding to an
adjudication of Plaintiff's claims.”) (citing
Ballentine v. United States, 486 F.3d 806, 810 (3d
discussed above, Defendant's instant motion argues that
Plaintiff lacks Article III standing. “There are three
well-recognized elements of Article III standing: First, an
‘injury in fact, ' or an ‘invasion of a
legally protected interest' that is ‘concrete and
particularized.'” In re Horizon Healthcare
Servs. Data Breach Litig., 846 F.3d 625, 633 (3d Cir.
2017) (quoting Lujan, 504 U.S. at 560).
“Second, a ‘causal connection between the injury
and the conduct complained of[.]'” Id.
(alteration in original) (quoting Lujan, 504 U.S. at
560). “And third, a likelihood ‘that the injury
will be redressed by a favorable decision.'”
Id. (quoting Lujan, 504 U.S. at 561).
as stated, both parties assert that Plaintiff lacks standing
under Article III of the United States Constitution because
she has not suffered an “injury-in-fact.”
See (Doc. 28, pp. 14-22); (Doc. 32, p. 1); (Doc.33,
p. 1); (Doc. 34, p. 12); (Doc. 36, p. 1); (Doc. 37, pp. 4,
8); (Doc. 38, p. 4). Specifically, Defendant contends that
“Plaintiff has not suffered any actual injury, ”
and, thus, “has failed to establish any concrete injury
. . . .” (Doc. 28, p. 22). Similarly, Plaintiff
“agrees that the Court does not have jurisdiction over
this matter because Plaintiff has not suffered a
‘concrete' injury.” (Doc. 33, p. 1).
Apparently, at the heart of this agreement is United States
Supreme Court's recent decision in Spokeo, Inc. v.
Robins, 136 S.Ct. 1540 (2016). See (Doc. 28,
pp. 14-22); (Doc. 33, p. 1).
before addressing the Supreme Court's decision in
Spokeo, it is important to discuss the United States
Court of Appeals for the Third Circuit's discussion of
Article III standing in In re Google Inc. Cookie
Placement Consumer Privacy Litigation, 806 F.3d 125 (3d
Cir. 2015). “The Google plaintiffs consisted
of a class of persons who used two web browsers: Apple's
Safari and Microsoft's Internet Explorer.” In
re Nickelodeon Consumer Privacy Litig., 827 F.3d 262,
272 (3d Cir. 2016). “These browsers came with
cookie-blocking options designed to protect users'
privacy while they browsed the Internet.” Id.
“In February of 2012, a Stanford graduate student
revealed that Google and several other advertising companies
had devised ways to evade these cookie-blocking options, even
while touting publicly that they respected their users'
choices about whether to take advantage of cookie-blocking
technology.” Id. The plaintiffs in
Google “filed a federal lawsuit alleging
violations of the Wiretap Act, the Stored Communications Act,
and the Computer Fraud and Abuse Act, ” along with
claims brought under California law. Id.
defendants moved to dismiss the entire complaint for lack of
Article III standing and for failure to state any
claim.” Google, 806 F.3d at 133-34. As
summarized by the Third Circuit, “[w]ithout
definitively resolving the standing challenge, the District
Court agreed with the defendants that the allegations in the
complaint did not give rise to any action, and on that basis
dismissed the complaint under Rule 12(b)(6).”
Id. at 134. The case was appealed to the United
States Court of Appeals for the Third Circuit where the
plaintiffs challenged “the dismissal of each of their
nine claims, and the defendants renew[ed] their contention
that the plaintiffs lack Article III standing.”
addressing the defendants' “argument that the
plaintiffs lack standing, ” the Third Circuit began by
noting that “‘[t]he question of standing is
whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.'”
Id. (quoting Storino v. Borough of Point
Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003)).
“A core requirement of standing, ” the Third
Circuit stated, “is that the plaintiff have suffered an
injury in fact.” Id. The defendants in
Google argued that the plaintiffs failed “to
demonstrate injury in fact because” they made
“insufficient allegations of pecuniary harm”
Id. However, the Third Circuit determined that
“[f]or purposes of injury in fact, the defendants'
emphasis on economic loss is misplaced.” Id.
According to the Third Circuit, “[i]n assessing injury
in fact, we look for an ‘invasion . . . which is (a)
concrete and particularized; and (b) actual or imminent, not
conjectural or hypothetical.'” Google, 806
F.3d at 134. “Though the ‘injury must affect the
plaintiff in a personal and individual way, '[footnote
omitted] this standard does not demand that a plaintiff
suffer any particular type of harm to have standing.”
Id. (quoting Lujan, 504 U.S. at 560 n.1).
“Consequently, and contrary to the contentions of the
defendants, ” the Third Circuit concluded, “a
plaintiff need not show actual monetary loss for purposes of
injury in fact.” Id. “Rather, ”
according to the Third Circuit, “‘the actual or
threatened injury required by Art. III may exist solely by
virtue of statutes creating legal rights, the invasion of
which creates standing.'” Id. (quoting
Havens Realty Corp. v. Coleman, 455 U.S. 363, 373
the Article III standing issue before the Third Circuit in
Google, “[t]he plaintiffs . . . base[d] their
claims on highly specific allegations that the defendants, in
the course of serving advertisements to their
personal web browsers, implanted tracking cookies on
their personal computers.” Id.
(emphasis in original). “Irrespective of whether these
allegations state a claim, ” the Third Circuit
determined, “the events that the complaint describes
are concrete, particularized, and actual as to the
plaintiffs.” Id. at 134-35. Further, the Third
Circuit found that “[t]o the extent that the defendants
believe that the alleged conduct implicates interests that
are not legally protected, this is an issue of the merits
rather than of standing.” Google, 806 F.3d at
135. As a result, the Third Circuit concluded that the
plaintiffs established “injury in fact” and that
it had “jurisdiction to address the merits of their
to the Third Circuit's decision in Google, the
United States Supreme Court addressed Article III standing in
Spokeo, which, as noted, serves as the basis for the
apparent agreement between the parties that Plaintiff lacks
standing in this matter under Article III. See (Doc.
28, pp. 14-22); (Doc. 33, p. 1). In Spokeo, the
Supreme Court stated the following in relation to the
standing requirement found in Article III of the United
Our cases have established that the “irreducible
constitutional minimum” of standing consists of three
elements. Lujan, 504 U.S., at 560. The 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. . . . 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 ...