United States District Court, S.D. Indiana, Indianapolis Division
FRANCINA SMITH, individually and on behalf of all others similarly situated, Plaintiff,
GC SERVICES LIMITED PARTNERSHIP, a Delaware limited partnership, and OWNERS RESOURCE GROUP GC GP BUYER, LLC, a Delaware limited liability company, Defendants.
ENTRY ON DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S AMENDED COMPLAINT
RICHARDX. YOUNG, United States District Court Judge
Francina Smith, individually and on behalf of all others
similarly situated, claims the Defendants, GC Services
Limited Partnership and Owner Resource Group GC GP Buyer,
LLC, sent her and the putative class a debt collection letter
that violated various provisions of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq. Defendants move to dismiss this action for
lack of subject matter jurisdiction under Rule 12(b)(1) and
for failure to state a claim under Rule 12(b)(6). For the
reasons that follow, the court DENIES Defendants' motion.
sent Plaintiff a form collection letter, dated March 17,
2016, which reads, in relevant part:
As of the date of this letter, our records show you owe a
balance of $3, 095.00 to Synchrony Bank. If you dispute this
balance or the validity of this debt, please let us know in
writing. If you do not dispute this debt in writing within 30
days after you receive this letter, we will assume this debt
(Filing No. 25-3, Collection Letter). The text of Section
1692g(a)(3) of the FDCPA, however, simply says that a
consumer need only “dispute the validity of the
debt.” Plaintiff's Amended Complaint - Class
Action, filed on October 18, 2016, alleges that Defendants
violated Section 1692g by wrongfully informing Plaintiff that
disputes must be in writing when, in fact, an oral dispute is
valid. (Filing No. 25, Amended Compl. ¶¶ 12-15).
She alleges Defendants' letter also violated Sections
1692e and 1692f because the statement-that any dispute of the
debt must be in writing-was false, deceptive, and misleading,
(id. ¶¶ 16-19), and unfair and
unconscionable, (id. ¶¶ 20-23).
Rule 12(b)(1) Motion
motion to dismiss for lack of standing is a challenge to the
court's subject matter jurisdiction under Rule 12(b)(1).
See Scanlon v. Eisenberg, 669 F.3d 838, 841-42 (7th
Cir. 2012). In ruling on a Rule 12(b)(1) motion to dismiss,
the court must accept as true all well-pleaded factual
allegations and draw all reasonable inferences in favor of
the plaintiff. Id. (citation omitted). In addition,
the court may look beyond the complaint and review any other
evidence to resolve the jurisdictional issue. Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440,
444 (7th Cir. 2009) (citations omitted).
burden is on the plaintiff to allege facts demonstrating the
required elements of standing. Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016). Those elements are:
(1) an injury in fact suffered by the plaintiff, (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. Id.
motion focuses on whether Plaintiff sufficiently alleged an
injury in fact. “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 ‘actual or
imminent, not conjectural or hypothetical.'”
Id. at 1548 (citation and quotation marks omitted).
An injury is “particularized” if it
“affect[s] the plaintiff in a personal and individual
way.” Id. An injury is “concrete”
if it “actually exists.” Id.
Spokeo, the Supreme Court held that a “bare
procedural violation [of a federal statute], divorced from
any concrete harm, ” cannot satisfy the injury-in-fact
requirement of Article III. Id. at 1549. “This
does not mean, however that the risk of real harm cannot
satisfy the requirement of concreteness.” Id.
In some circumstances, the violation of a statutory
procedural right will be enough to confer standing.
Id. “In other words, a plaintiff in such a
case need not allege any additional harm beyond the
one Congress has identified.” Id.
the Seventh Circuit has not had occasion to consider Article
III standing for FDCPA violations after Spokeo,
several district courts within the Seventh Circuit and other
circuit courts have addressed this issue and have held that
violations of the FDCPA constitute concrete injuries in fact,
sufficient to find Article III standing. See Church v.
Accretive Health, Inc., 654 Fed.Appx. 990, 994 (11th
Cir. 2016); Long v. Fenton & McGarvey Law
Firm P.S.C., No. 1:15-cv-1924-LJM-DKL, 2016 WL 7179367,
at *3 (S.D. Ind. Dec. 9, 2016); George v. Wright, Lerch
& Litow, LLP Attorneys at Law, No.
1:15-cv-00811-JMS-DML, 2016 WL 6963990, at *2-3 (S.D. Ind.
Nov. 29, 2016); Everett v. Fin. Recovery Servs.,
Inc., No. 1:16-cv-01806-JMS-MPB, at *4 (S.D. Ind. Nov.
28, 2016); Saenz v. Buckeye Check Cashing of Ill.,
No. 16 CV 6052, 2016 WL 5080747, at * 2 (N.D. Ill. Sept. 20,
2016) (“Congress gave consumers a legally protected
interest in certain information about debts, and made the
deprivation of information about one's debt . . . a
cognizable injury . . . . Saenz was harmed by receiving a
deficient and allegedly misleading communication from
Buckeye-a harm defined and made cognizable by the statute,
but a concrete harm nonetheless.”); Quinn v.
Specialized Loan Servicing, LLC, No. 16-cv-2021, 2016 WL
4264967, at * 5 (N.D. Ill. Aug. 11, 2016) (“I conclude
that SLS's alleged failure to provide the Quinns with
information required under the FDCPA constitutes sufficient
concrete harm for purposes of Article III standing.”)
accordance with the above cases, the court finds Plaintiff
was harmed by receiving an allegedly deficient and misleading
communication from Defendants. Unlike the FCRA, a violation
of the FDCPA for including inaccurate information is not a
“bare procedural violation.” Such omissions
present a material risk of harm. See Rasa Hayes v.
Convergent Healthcare Recoveries, Inc., No. 14-1467,
2016 WL 5867818, at *4 (C.D. Ill. Oct. 7, 2016)
(“Unlike Spokeo, where a ‘violation of
one of the FCRA's procedural requirements may result in
no harm, ' a violation of the right under [the FDCPA] to
be free from false or misleading representations from debt
collectors creates a harm, or a risk of harm, sufficient to
meet the requirement ...