United States District Court, E.D. Pennsylvania
F. KELLY, SR. J.
Philip Tiene (“Tiene”) filed suit in this Court
against Defendant Law Office of J. Scott Watson P.C.
(“JSW”) and Defendant Drexel University
(collectively, “Defendants”), alleging a
violation of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”)
against JSW, and a violation of Pennsylvania's Unfair
Trade Practices and Consumer Protection Law, 73 Pa. Cons.
Stat. § 201-1 et seq. (“UTPCPL”)
against Drexel. Drexel filed suit in Philadelphia Municipal
Court against Tiene for failure to pay tuition and obtained a
judgment of $10, 596.35 on June 14, 2017. Tiene's claims
arise out of allegedly deceptive practices the Defendants
took in seeking to collect debt from his failure to pay the
before the Court are Tiene's Motion for Leave to File an
Amended Complaint and Defendants' Motion for Summary
Judgment, along with numerous briefs in support and
opposition to the respective Motions. Defendants' Motion
for Summary seeks dismissal of this action based on the
Rooker-Feldman doctrine and res judicata. For the
reasons discussed below, Tiene's Motion for Leave to File
an Amended Complaint is denied, and Defendants' Motion
for Summary Judgment is granted.
was enrolled as a student at Drexel from September 22, 2008
to June 14, 2014. (Defs.' Mem. Support Mot. Summ. J. at
3.) Drexel students use the “Banner System” to
access and self-service their student accounts.
(Id.) On July 9, 2012, Tiene first entered his
residential address in the Banner System as 7 Woodcrest Road,
Boonton, New Jersey 07005 (the “Boonton
Address”). (Id. at 4.) In August 2012,
September 2012, March 2013, September 2013, and March 2014,
Tiene confirmed in the Banner System that his residential
address was the Boonton Address. (Id.) Drexel
students are responsible for maintaining and updating their
contact information in the Banner System. (Id. at
3.) When Drexel seeks collection of a delinquent tuition
account, its policy is to use the student's residential
address entered in the Banner System. (Id. at 4.)
Further, Drexel students must read and complete the
“Student Financial Obligation and Tuition Repayment
Agreement” before they are able to register for
classes, which provides, among other things, that they will
be held responsible for “collection costs and
attorney's fees” that “will be assessed at a
minimum of 33 and 1/3 percent of [the] balance due.”
(Id. at 5.)
attended two classes at Drexel between September 2013 and
March 2014, but he failed to pay the tuition and other fees
associated with them. (Id. at 6.) His balance for
the two classes, which was composed of tuition, late fees,
and other administrative fees, was $7, 881.73. (Id.)
April 2015, Drexel retained a collection agency called
“ConServe” regarding Tiene's unpaid tuition.
(Id. at 7.) On May 21, 2015, after being contacted
by ConServe, Tiene spoke on the telephone to Jerome Wilson
(“Wilson”), who was a Senior Collection
Specialist in Drexel's Bursar's Office, about his
tuition bill. (Id.) Drexel does not record any
telephone conversations with its students, but Wilson entered
notes from the call in Drexel's “RightNow
System.” (Id.) During the call, Tiene said he
would meet with someone from Drexel the following week to
discuss his bill. (Id. at 8.) Wilson informed Tiene
that his account with ConServe would be placed on hold. Tiene
also provided a Philadelphia address to Wilson, which was
recorded in the Banner System as Tiene's billing address.
(Id.) That same day, Wilson contacted ConServe to
place a hold on collection activity for Tiene's account
until Tiene could review the tuition bill. (Id.)
However, Tiene failed to contact or visit Drexel's
Bursar's Office to discuss his bill, and on July 20,
2015, Drexel directed ConServe to resume collection activity.
2016, Drexel provided JSW with a “placement
sheet” that contained information for several accounts,
including Tiene's. (Id. at 9.) The placement
sheet that Drexel provided showed Tiene's address as the
Boonton Address. (Id.) JSW typically sends
collection letters to the address of the individual that the
creditor (Drexel) provides. (Id.) JSW sent
collection letters to Tiene at the Boonton Address on May 12,
2016 and June 24, 2016, neither of which were returned as
undeliverable. (Id. at 9-10.)
January 25, 2017, JSW filed a Complaint (“Municipal
Court Complaint”) in Philadelphia Municipal Court
(“Municipal Court Lawsuit”) against Tiene,
seeking the outstanding tuition balance, attorney's fees,
and court costs. (Id. at 10.) Drexel sought a
total amount of $10, 596.35, composed of $7, 881.73 in
principal, $2, 624.62 in attorney's fees, and $90.00 in
court costs. (Id. at 11.) JSW served the Municipal
Court Complaint via regular mail and certified mail, return
receipt requested, at the Boonton Address. (Id.) The
copy of the Municipal Court Complaint that was sent via
certified mail, return receipt requested, was returned to JSW
as unclaimed. (Id.) The Municipal Court Complaint
sent via regular mail was never returned to JSW.
March 29, 2017, an attorney from JSW attended a hearing in
the Municipal Court Lawsuit, but Tiene did not attend.
(Id.) Consequently, the Municipal Court Judge
entered a default judgment in Drexel's favor for $10,
596.35, which represented the full amount Drexel sought.
(Id.) JSW sent a letter dated March 31, 2017 to the
Boonton Address apprising Tiene of the default judgment.
April 7, 2017, Tiene, through counsel, filed a Petition to
Open the Default Judgment with the Municipal Court.
(Id. at 12.) In his Petition, Tiene claimed that
Drexel “knowingly served process at the wrong, out of
state address, where [Tiene] does not reside, in order to
avoid [the] personal service requirement in Philadelphia
County and obtain [judgment] by default.”
(Id., Ex. 19.) On May 11, 2017, Drexel and Tiene
appeared for a hearing in Municipal Court regarding
Tiene's Petition to Open the Default Judgment.
(Id. at 12.) The Municipal Court Judge found that
Drexel did not engage in any intentional wrongdoing in
serving Tiene at the Boonton Address, but ultimately granted
Tiene's Petition, vacated the default judgment, and
allowed Tiene to proceed on the merits. (Id. at 13.)
Tiene's counsel was not prepared to have a merits hearing
that day and requested a continuance, which was granted.
and Drexel (represented by JSW) appeared for trial in
Philadelphia Municipal Court on June 14, 2017. (Id.)
The Municipal Court Judge entered judgment for Drexel in the
amount of $10, 596.35, again composed of $7, 881.73 in
principal, $2, 624.62 in attorney's fees, and $90.00 in
court costs. (Id. at 14.) Tiene attempted to appeal
the judgment to the Court of Common Pleas of Philadelphia
County, but he failed to follow the procedural requirements,
resulting in his appeal being stricken.
same day that judgment was rendered against Tiene and in
favor of Drexel in Municipal Court, Tiene filed the instant
lawsuit in this Court, naming JSW and Drexel as Defendants.
(Id.) The Complaint (“Complaint” or
“Federal Complaint”) contains two Counts: Count
against JSW and alleges a violation of the FDCPA, and Count
II is against Drexel and alleges a violation of the
Pennsylvania UTPCPL. (See generally Compl.) Boiled
down to its essence, Tiene claims that the Defendants used
false representations and deceptive means to collect
Tiene's debt by improperly serving him with process to
obtain a quick default judgment, sending him letters with
false and misleading information, and misrepresenting to the
Municipal Court that attorney's fees and collections
costs were recoverable. (Id. ¶¶ 2-7.)
October 31, 2017, Defendants filed a Motion for Summary
Judgment that seeks dismissal of all claims based on the
Rooker-Feldman doctrine and res judicata. Just two
days later, Tiene filed a Motion for Leave to File an Amended
Complaint. The parties have filed numerous briefs in support
and opposition to the respective Motions. For the reasons
noted below, Tiene's Motion for Leave to File an Amended
Complaint is denied, and Defendants' Motion for Summary
Judgment is granted.
Rule 15(a) Standard
Rule of Civil Procedure 15(a) provides that when a party
cannot amend its pleading as a matter of course, “a
party may amend its pleading only with the opposing
party's written consent or the court's leave, ”
and directs that courts “should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a). “Leave
to amend must generally be granted unless equitable
considerations render it otherwise unjust.” Arthur
v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
“Among the grounds that could justify a denial of leave
to amend are undue delay, bad faith, dilatory motive,
prejudice, and futility.” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
“A finding of ‘dilatory motive' is justified
where the plaintiff acts ‘in an effort to prolong
litigation.'” Breyer v. Meissner, 23
F.Supp.2d 540, 542 (E.D. Pa. 1998) (quoting
Burlington, 114 F.3d at 1434).
Rule 56(a) Standard
Rule of Civil Procedure 56(a) states that summary judgment is
proper “if 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). The
Court asks “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether . .
. one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). The moving party has the initial burden of
informing the court of the basis for the motion and
identifying those portions of the record that demonstrate the
absence of a genuine dispute of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A
fact is material if it could affect the outcome of the suit
after applying the substantive law. Further, a dispute over a
material fact must be ‘genuine, ' i.e., the
evidence must be such ‘that a reasonable jury could
return a verdict in favor of the non-moving
party.'” Compton v. Nat'l League of
Prof'l Baseball Clubs, 995 F.Supp. 554, 561 n.14
(E.D. Pa. 1998) (quoting Liberty Lobby, 477 U.S. at
judgment must be granted “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.”
Celotex, 477 U.S. at 322. Once the moving party has
produced evidence in support of summary judgment, the
non-moving party must go beyond the allegations set forth in
its pleadings and counter with evidence that presents
“specific facts showing that there is a genuine issue
for trial.” See Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992).
“More than a mere scintilla of evidence in its
favor” must be presented by the non-moving party in
order to overcome a summary judgment motion. Tziatzios v.
United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996).
If the court determines that there are no genuine disputes of
material fact, then summary judgment will be granted.
Celotex, 477 U.S. at 322.