Zarichny v. Complete Payment Recovery Services, Inc.
80 F. Supp. 3d 610
| E.D. Pa. | 2015Background
- Plaintiff Sandra Zarichny received 11 calls in 2013 from (800) 873-5869 with a prerecorded message referring to an alleged textbook debt; she denies owing any debt.
- Calls included a July 5 voicemail stating the call was an attempt to collect a debt and giving CPRS contact numbers; plaintiff feared calling would acknowledge the debt.
- Defendants: Complete Payment Recovery Services, Inc. (CPRS) and its parent Fidelity National Information Services (FIS). Plaintiff alleges FIS exerts supervisory control over CPRS.
- Plaintiff sues under the TCPA (automated calls to a cell phone without prior consent) and multiple FDCPA provisions (including failure to send the 1692g written notice). She seeks putative nationwide classes for TCPA and FDCPA claims.
- Defendants moved to dismiss (Fed. R. Civ. P. 12(b)(6)) and to strike class allegations (Rule 12(f)), arguing (inter alia) lack of parent liability, failure to plead lack of consent for TCPA, insufficiency of FDCPA allegations, and that class definitions are impermissible "fail-safe" classes.
- Court: grants in part and denies in part — dismisses FIS, allows TCPA claim and FDCPA §1692g claim against CPRS to proceed, dismisses other FDCPA claims, and strikes class allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether parent FIS can be liable for CPRS's acts | FIS controlled and implemented CPRS collection practices and employed shared personnel, so it can be liable | No allegations that FIS made calls or dominated CPRS in the manner allowing veil-piercing or vicarious liability | Dismiss FIS — allegations insufficient to pierce corporate veil or show agency/enlistment for liability |
| Whether CPRS violated the TCPA by calling plaintiff's cell without prior express consent | Zarichny alleges no prior relationship or consent and identifies a single originating number tied to CPRS for all calls | TCPA requires prior express consent; complaint is silent on consent and alleges only one call by CPRS | Deny dismissal — plaintiff adequately alleged absence of prior express consent and that CPRS originated the calls |
| Whether CPRS violated FDCPA provisions: (a) §1692c (inconvenient times) and (b) §1692d (harassment via repeated calls) | Calls occurred when plaintiff (a college student) would be in class; calls were repeated and harassing | Calls occurred between 8 a.m.–9 p.m. (presumptively convenient) and eleven calls over six months do not meet harassment threshold | Grant dismissal of §1692c and §1692d claims — times were within statutory presumptive convenience and calls insufficiently pleaded to show harassment |
| Whether CPRS violated FDCPA notice and deception provisions: (a) §1692g (written notice) and (b) §1692e/§1692f (false/deceptive or unfair practices) | A prerecorded message requesting callback constituted an initial "communication" triggering the written notice obligation; voicemail was confusing and calling could be construed as acknowledging debt | Mere dispute of debt is insufficient; voicemail did not falsely suggest acknowledgment or show unfair collection practices | Deny dismissal as to §1692g — July 5 voicemail is a communication triggering written notice. Grant dismissal of §1692e and §1692f claims — voicemail not plausibly deceptive under least-sophisticated-debtor standard and no separate unfair misconduct pleaded |
| Whether class allegations should be struck as fail-safe classes | Class membership can be refined and class certification is premature before discovery | Class definitions tie membership to liability (no prior consent; failure to send §1692g notice), creating impermissible fail-safe and ascertainability defects | Grant motion to strike class allegations — both proposed classes are impermissible fail-safe/ascertainability failures |
Key Cases Cited
- Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379 (3d Cir. 2000) (vicarious liability may attach when one enlists another to collect debts on its behalf)
- United States v. Bestfoods, 524 U.S. 51 (1998) (parent liability for subsidiary is limited; corporate form protects parents absent exceptional factors)
- Pearson v. Component Tech. Corp., 247 F.3d 471 (3d Cir. 2001) (shared officers or trade-name usage insufficient alone to pierce corporate veil)
- Marcus v. BMW of N. Am. LLC, 687 F.3d 583 (3d Cir. 2012) (ascertainability requirement — classes that require extensive individualized fact-finding are improper)
- Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294 (3d Cir. 2008) (use "least sophisticated debtor" standard for FDCPA deception analysis)