Nitti v. Penn Credit Corporation
3:17-cv-00422
E.D. Va.Oct 2, 2017Background
- Plaintiff Robert A. Nitti received a debt-collection "Broken Promise" letter from Penn Credit on or around Feb. 1, 2016, listing 21 Virginia tax debts and stating an attempt to collect a debt.
- At least one listed tax debt was assessed more than seven years earlier, beyond Virginia's seven-year tax collection limitations period (Va. Code § 58.2-1802).
- Plaintiff alleges Penn Credit knowingly sends collection letters without verifying whether listed tax debts are time-barred, asserting violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e and 1692f.
- Plaintiff filed an Amended Complaint seeking injunctive relief, statutory damages, and attorney’s fees on behalf of a class; Penn Credit moved to dismiss under Rules 12(b)(1) and 12(b)(6).
- The Court treated Penn Credit’s dismissal motion as a facial attack on standing and confined its review to facts pled in the Amended Complaint (Plaintiff’s proposed Second Amended Complaint alleging emotional injuries was not considered).
- The Court found the Amended Complaint alleged only a bare statutory violation and no concrete or imminent injury-in-fact, concluding it lacked subject-matter jurisdiction and dismissing without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff has Article III standing to sue based on alleged FDCPA violations | Nitti contends Penn Credit violated FDCPA by attempting to collect time-barred debts; seeks to amend to allege emotional harms | Penn Credit argues the Amended Complaint alleges only a bare statutory violation and lacks facts showing a concrete injury | Court held no standing: Amended Complaint lacks allegation of concrete or imminent harm beyond statutory violation; dismissal for lack of subject-matter jurisdiction |
| Whether the Court may consider facts in Plaintiff's proposed Second Amended Complaint when deciding standing | Nitti sought leave to amend to add injury allegations | Penn Credit argued Court must decide standing on current pleadings and cannot consider proposed amendment if jurisdiction is lacking | Court refused to consider proposed amendment because it may not grant leave if it lacks jurisdiction; confined review to Amended Complaint |
| Whether a bare statutory violation of FDCPA can satisfy concreteness requirement | Nitti implicitly relies on Spokeo precedent that some statutory violations can create a "risk of real harm" | Penn Credit argued the statutory violation here does not give rise to a cognizable risk of harm absent additional facts | Court held the bare statutory violation did not, on these facts, constitute a concrete injury under Spokeo; no standing |
| Whether dismissal should be with prejudice | Nitti sought leave to amend; argued facts could be added | Penn Credit noted jurisdictional bar to amendment | Court dismissed without prejudice (but declined to permit further amendment due to present lack of jurisdiction) |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (clarifying that a statutory violation must cause a "concrete" injury to confer Article III standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (establishing injury-in-fact, causation, and redressability elements for standing)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts are courts of limited jurisdiction)
- Dreher v. Experian Info. Sols., Inc., 856 F.3d 337 (discussing when denial of statutorily required information can constitute concrete injury)
- Adams v. Bain, 697 F.2d 1213 (distinguishing facial and factual Rule 12(b)(1) attacks)
- Kerns v. United States, 585 F.3d 187 (describing treatment of facial vs. factual jurisdictional challenges)