MEMORANDUM OPINION
This case involves Virginia’s hotly contested “Public-Private” toll lane scheme. Plaintiffs in this case seek class action status, and are all users of the High-Occupancy Toll Roads operated by Defendants in Northern Virginia. This matter is before the Court on three motions to dismiss Plaintiffs’ Amended Complaint, filed by (1) Defendants Transurban (USA), Inc., Transurban (USA) Operations, Inc., Capital Beltway Express, LLC, 95 Express Lanes, LLC (the “Transurban” Defendants) [Dkt. 41]; (2) Defendant Faneuil, Inc. (“Faneuil”) [Dkt. 44]; and (3) Defendant Law Enforcements Systems, LLC (“LES”) [Dkt. 49]. For the following reasons, the Court grants Transurban, Fa-neuil, and LES’s motions with respect to Plaintiffs’ substantive due process and unjust enrichment claims; grants Faneuil and LES’s motions with respect to Plaintiffs’ Maryland Consumer Protection Act and Virginia Consumer Protection Act claims; and denies Transurban, Faneuil, and LES’s motions with respect to Plaintiffs’ Eighth Amendment, procedural due process, Fair Debt Collection Practices Act, and tortious interference with contract claims.
I. Background
At the motion to dismiss stage, the Court must read the amended complaint as a whole, construe the amended complaint in a light most favorable to the plaintiff, and accept the facts alleged in the amended complaint as true. Ashcroft v. Iqbal,
Pursuant to the Public-Private Transportation Act (“PPTA”),
A. Virginia’s HOT Lanes Law
Virginia law governs the creation of HOT lanes (hereinafter collectively referred to as the “HOT lanes law”). (Am. Compl. ¶ 42 (citing Va.Code Ann. §§ 33.2-502, 503).) The operator of a motor vehicle “shall make arrangements with the HOT lanes operator for payment of the required toll prior to entering such HOT lanes.” Va.Code Ann. § 33.2-503. Failure to make such arrangements, ie., failure to pay the required toll, violates Virginia law and such a violation is subject to civil penalties, including payment of the unpaid toll, fines, fees, and costs. Id. Enforcement of this statutory provision is accomplished by issuance of a summons for a civil violation,
First, if a law-enforcement officer observes an HOT lane violation, the officer may execute a summons for the violation. Va.Code Ann. § 33.2-503(1). Second, a summons may be executed if a violation is evidenced by information obtained from a photo-enforcement system, which the HOT lane operator is required to install and operate at all toll-collection locations. Id. §§ 33.2-503(2)(a)-(b). “A certificate, sworn to or affirmed by a technician employed or authorized by the HOT lanes operator, or a facsimile of such certificate, based on inspection of photographs, micro-photographs, videotapes, or other recorded
The summons shall provide the registered owner of the vehicle with “reasonable notice” that the vehicle was used in violation of this statute, and provide “notice of the time and place of the hearing and notice of the civil penalty and costs for such offense.” Va.Code Ann. § 33.2-503(2)(d). The HOT lanes operator may impose an administrative fee in addition to the unpaid toll, “so as to recover the expenses of collecting the unpaid toll, [but the] administrative fee shall be reasonably related to the actual cost of collecting the unpaid toll.” Id. § 33.2-503(3)(a). The summons shall contain an option for the driver or registered owner of the vehicle to prepay the unpaid toll and all penalties, administrative fees, and costs. Id. § 33.2-503(2)(c). If the operator of the vehicle pays the administrative fee and unpaid tolls within 30 days of notification, the administrative fee shall not exceed $25. Id. § 33.2-503(3)(a). Otherwise, the administrative fee shall not exceed $100. Id. If the operator of the vehicle contests the violation but a court of competent jurisdiction
B. Defendants’ Alleged Enforcement Procedure
As the HOT lanes operator, Transurban enforces civil violations
Specifically, Transurban will first mail an “unpaid toll notice” to the registered owner of the motor vehicle requesting payment of the unpaid tolls, plus a $12.50 administrative fee that is assessed for each violation (hereinafter “the first notice”). (Am. Compl. ¶ 60.) The first notice requests payment or notice that the driver disputes the violation within 30 days. (Id.) If the toll remains unpaid after 30 days, Transurban issues a “final toll invoice” that requests payment of the unpaid tolls, plus a $25 administrative fee for each violation (hereinafter “the final notice”). (Id. at ¶ 61; see also Transurban’s Mem. [Dkt. 42] Ex. C.) The final notice requests payment within 30 days and states that Tran-surban will refer any failure to pay to its debt collection agency, LES. (Id.) Transur-ban takes “no efforts to ensure or confirm that the invoices they mail actually reach their intended recipients ... even when these invoices are returned as undeliverable.” (Am. Compl. ¶ 71.) If Transurban refers the account for debt collection, LES will issue a collection notice to the driver that requests payment of the unpaid tolls, plus a $100 administrative fee for each violation (“the collection notice”). (Id. at ¶¶ 74-84.) “LES regularly tells consumers in correspondence that ‘this is an attempt to collect a debt and any information obtained will be used for that purpose’ and/or that the communication is from a debt collector.” (Id. at ¶75.) LES attempts to make debt validation disclosures in the collection notice pursuant to the Fair Debt Collection Practices Act (“FDCPA”), but “does not comply with the FDCPA in several respects.” (Id. at ¶¶ 77-84 (alleging that LES fails to identify the creditor, Transurban, fails to include any of the statutory disclosures, and falsely represents the character and amount of the debt).)
If the toll is still unpaid, Transurban engages the services of Faneuil, which initiates collection lawsuits by executing a summons through first-class mail to the registered owner of the motor vehicle. (Am. Compl. ¶¶ 3, 85.) Either Transurban or Faneuil issues “electronically-produced summonses robo-signed by machines. They do not issue summonses sworn to or affirmed by humans, as required by Virginia law.” (Id. at ¶¶ 86, 88-89,118.) Moreover, it is alleged that Transurban or Fa-neuil issues summonses that “include an identical pre-printed signature, placed and proportioned on the forms in the same manner for all summonses.” (Id. at ¶ 89.) And in some cases, Transurban or Faneuil issues summonses more than one year after the purported toll violation, in violation of Virginia law. (Id. at ¶¶ 92-94.) Plaintiffs also allege that Transurban has failed to appear in court, but instead sends a non-lawyer independent contractor for Fa-neuil to make court appearances. (Id. at ¶¶ 95-96 (“Defendant Transurban sent Alexis Brach (a non-lawyer) to appear on its behalf. Because Ms. Brach is an independent contractor for Defendant Faneuil, [the court] ruled she could not and cannot represent the Transurban Defendants in court.”).)
On October 27, 2014, approximately two years after the opening of the 495 Express Lanes and prior to the opening of the 95 Express Lanes, Transurban announced the implementation of a “First-Time Forgiveness” program for HOT lane violations. (Am. Compl. ¶ 97.) This program includes:
(a) If a consumer contacts Defendant Transurban within 60 days of toll violation, the company will remove automatically-assessed administrative fees, where toll violation arose from insufficient funds in an E-ZPass account, failure to link a license plate to the E-ZPass account or an incorrectly mounted E-ZPass;
(b) In the event that Defendant Tran-surban sends an E-ZPass customer an invoice and the letter is returned with an unknown address, Defendant Tran-surban will send the invoice to a debt collection agency but will .waive all fees if the customer contacts it and provide[s] evidence the customer has resolved the account issues with E-ZPass and has paid his tolls; and
(c) Defendant Transurban will continue to collect through court action, but “will put a cap on the number of trips sent to court and pursue a maximum of $2,220 (which includes the administrative fee + civil penalties), plus tolls and court fees, regardless of the number of violations.
(Id.) Plaintiffs allege that this new policy nonetheless fails to resolve the problem of “excessive, illegal, and unreasonable fees and fines” for various reasons. (Id. at ¶¶ 98-102.)
C. Class Representatives
Seven individual 'Plaintiffs bring this lawsuit against Defendants and claim, generally, that they were assessed massive fees and penalties for minor toll violations on the 495 Express Lanes and 95 Express Lanes that were unreasonable and improper. (Am. Compl. ¶¶ 109-219.) At all relevant times, each Plaintiff had previously signed up for an E-ZPass account,
1. Plaintiff Jo-Ann Brown
Between October 4 and October 12, 2013, Transurban determined that Plaintiff Jo-Ann Brown (“Brown”) violated the HOT lanes law on five separate occasions, totaling $4.15 in toll violations. (Am. Compl. ¶¶ 110-114.) Brown did not receive notice of the toll violations until sixty (60) days later, when she received a letter from “495 Express Lanes” stating that she owed $4.15 in tolls and $100 in administrative fees. (Id. at ¶ 115.) Brown protested but nonetheless agreed to pay the amount due, but 495 Express Lanes declined to accept Brown’s payment. (Id. at ¶¶ 116— 117.) In October of 2014, Transurban served Brown with several summonses, which indicated that it was seeking $3,413.75 in total as a result of the $4.15 cumulative toll violation. (Id. at ¶ 118 (breaking down the administrative fee, cost amount, and civil penalty sought for each violation).) Transurban assessed a $100 administrative fee and $72 in costs for each of the five toll violations. (Id.) The first toll violation was accompanied by a $50 civil penalty; the second toll violation
2. Plaintiff Anna Stanfield
Between June 18 and July 3, 2013, Tran-surban determined that Plaintiff Anna Stanfield (“Stanfield”) violated the HOT lanes law on ten separate occasions, totaling $32.70 in toll violations. (Am. Compl. ¶¶ 126-128.) In October of 2014, Transur-ban served Stanfield with several summonses, which indicated that it was seeking $8,380.70 in total as a result the total $32.70 toll violation. (Id. at ¶ 129 (breaking down the administrative fee, cost amount, and civil penalty sought for each violation).) Transurban assessed a $100 administrative fee and $72 in costs for each of the ten toll violations. (Id.) And as with Brown, Transurban assessed escalating civil penalties, starting at $50 for the first violation, rising to $250 for the second violation, $500 for the third violation, and $1,000 for each of the subsequent violations. (Id.) Transurban issued all of the summonses more than one year after the date of the purported toll violations. (Id. at ¶ 134.) Prior to the issuance of the summons, Stanfield had no meaningful or adequate means to contest the fines and fees. (Id. at ¶ 135.) After receiving the summonses, Stanfield contacted Transur-ban, and after feeling enormous pressure to resolve the matter, Stanfield was pressured into paying Transurban $2,200. (Id. at ¶¶ 136-137.)
S. Plaintiff Rachel Amarti
Between June 3 and July 22, 2013, Tran-surban determined that Plaintiff Rachel Amarti (“Amarti”) violated the HOT lanes law on twenty-six separate occasions, with total toll violations in excess of $100. (Am. Compl. ¶¶ 139-142.) In 2014, Transurban served Amarti with several summonses, which indicated that it was seeking over $25,000 as a result these toll violations. (Id. at ¶ 143 (breaking down the administrative fee, cost amount, and civil penalty sought for each violation).) Transurban assessed a $100 administrative fee and $72 in costs
Ip. Plaintiff Mary Elise Pizarro
Between May 8 and May 28, 2013, Tran-surban determined that Plaintiff Mary Elise Pizarro (“Pizarro”) violated the HOT lanes law on seven separate occasions, totaling $20.50 in toll violations. (Am. Compl. ¶¶ 153-156.) Pizarro received additional notices of violations in July. (Id. at ¶ 156.) Pizarro first received notice of purported toll violations one month after
On July 18, 2013, Transurban e-mailed Pizarro and denied her request due to insufficient funds, even though Pizarro maintained a sufficient balance on her E-ZPass account. (Am. Compl. ¶ 162.) In January of 2014, Pizarro ceased using the 495 Express Lanes and closed her account. {Id. at ¶ 163.) Shortly théreafter, E-ZPass refunded her approximately $83, which was the positive balance on her account. {Id. at ¶ 164.) In September of 2014, Transurban served Pizarro with ten summonses, ■ which indicated that it was seeking $9,440.90 for ten purported toll violations totaling approximately $20. {Id. at ¶¶ 165-166 (breaking down the administrative fee, cost amount, and civil penalty sought for each violation).) Transurban assessed a $100 administrative fee and $72 in costs for each of the ten toll violations. {Id.) And as with the previously mentioned Plaintiffs, Transurban assessed escalating civil penalties, starting at $50 for the first violation, rising to $250 for the second violation, $500 for the third violation, and $1,000 for each of the subsequent violations. {Id.) Transurban issued all of the summonses more than one year after the date of the purported toll violations. {Id. at ¶ 170.) Prior to the issuance of the summons, Pizarro had no meaningful or adequate means to contest the fines and fees. {Id. at ¶ 171.) After receiving the summonses, Pizarro contacted Transurban, and after feeling enormous pressure to resolve the matter, Pizarro was pressured into paying Transurban $1,513.90.
5. Plaintiff Duane Hale
Between July 6 and November 11, 2013, Transurban determined that Plaintiff Duane Hale (“Hale”) violated the HOT lanes law on sixteen separate occasions, totaling $30.65 in toll violations. (Am. Compl. ¶¶ 176-179.) Hale received notices demanding payment for unpaid tolls, despite having a positive balance on his E-ZPass account, and promptly disputed these initial notices but Transurban “persisted.” {Id. at ¶ 181.) In October of 2014, Transurban served Hale with sixteen summonses, which indicated that it was seeking over $15,000 for toll violations totaling $30.65. {Id. at ¶¶ 182-183 (breaking down the administrative fee, cost amount, and civil penalty sought for each violation).) Transurban assessed a $100 administrative fee and $72 in costs for each of the sixteen toll violations. {Id.) And as with the previously mentioned Plaintiffs,
6. Plaintiff Michelle Osborne
Between November 13 and November 21, 2013, Transurban determined that Plaintiff Michelle Osborne (“Osborne”) violated the HOT lanes law on four separate occasions, totaling $16.75 in toll violations. (Am. Compl. ¶¶ 192-196.) Four months later, Osborne first received notice of the purported violations through a “Demand for Payment and Credit Bureau Warning Letter” from LES, stating that she owed $312.20 for three toll violations. (Id. at ¶ 197.) In December of 2014, Transurban served Osborne with summonses, which indicated that it was seeking $2,293.30 for toll violations totaling $16.75. (Id. at ¶ 198 (breaking down the administrative fee, cost amount, and civil penalty sought for each violation).) Transurban assessed a $100 administrative fee and $77 in costs for each of the four toll violations. (Id.) And as with the prior Plaintiffs, Transurban also assessed escalating civil penalties, starting at $50 for the first violation, rising to $250 for the second violation, $500 for the third violation, and $1,000 for the fourth violation. (Id.) Prior to the issuance of the summons, Osborne had no meaningful or adequate means to contest the fines and fees. (Id. at ¶202.) No judgment has been entered against Osborne to date. (Id. at ¶ 203.)
7. Plaintiff Jocelyn Chase '
Between June 23 and September 4, 2014, Transurban determined that Plaintiff Jocelyn Chase (“Chase”) violated the HOT lanes law on twenty-nine separate occasions, totaling $30.95 in toll violations. (Am. Compl. ¶¶ 205-209.) Chase did not receive a notice until more than two months after the first purported toll violation, when she received an “Unpaid Toll Invoice” letter from Capital Beltways Express, LLC. (Id. at ¶ 210.) Between September and November of 2014, Chase received a total of six of these “Unpaid Toll Invoice” letters seeking payment for twenty-three of the twenty-nine toll violations, but never received this initial notice for six of the violations. (Id.) The first time Chase received notice of these six additional violations was on March 3, 2015, when LES sent a credit bureau warning letter for two of the violations, and on December 11, 2014, when LES sent a notice of assignment on the remaining four violations. (Id. at ¶ 211.) By March 3, 2015, LES was seeking a total of $1,817.85 for eighteen alleged toll violations, but by the time LES reported these violations to the credit bureaus, the total had grown to $1,919.10. (Id. at ¶ 212.) On May 25, 2015, Transur-ban served Chase with summonses-, which indicated that it was seeking $2,512.10 for only four toll violations totaling $4.10. (Id. at ¶ 213 (breaking down the administrative fee, cost amount, and civil penalty sought for each violation).) Transurban assessed
D. Claims Raised in the Amended Complaint
The seven individual Plaintiffs bring this action on behalf of themselves and all others similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure.
1. Constitutional Claims against only Transurban
Claims One, Two, and Three, brought only against the Transurban Defendants, allege that Transurban has violated 42 U.S.C. § 1983, the United States Constitution, and the Virginia Constitution. Specifically, in Claim One, Plaintiffs allege that Transurban violated 42 U.S.C. § 1983 by levying excessive fines in violation of the Eighth Amendment to the United States Constitution. (Am. Compl. ¶¶ 235-241.) Separately, Claim One also sets forth a violation of Article I, Section 9 of the Virginia Constitution,
2. State Laiv Claims against All Defendants
Plaintiffs assert four claims under state law against all named Defendants. In Claim Four, entitled “Unjust Enrichment,” Plaintiffs allege that all Defendants knowingly received and retained wrongful benefits as a result of their wrongful conduct in conscious disregard of Plaintiffs’ rights. (Id. at ¶¶ 258-267.) In Claim Six, Maryland Plaintiffs allege that all Defendants violated the Maryland Consumer Protection Act, Md.Code Com. Law §§ 13-101 et seq., by engaging in unlawful, unfair, and deceptive trade practices. (Id. at ¶¶ 272-282.) Similarly, in Claim Seven, Virginia Plaintiffs allege that all Defendants violated the Virginia Consumer Protection Act, Va.Code Ann. §§ 59.1-196 et seq., by engaging in unlawful, unfair, and deceptive trade practices. (Id. at ¶¶ 283-296.) And in Claim Eight, entitled “Tortious Interference with Contract,” Plaintiffs allege that all Defendants knowingly interfered with Plaintiffs’ contractual relationship with the E-ZPass entities under the E-ZPass contracts. (Id. at ¶¶ 297-312.)
3. FDCPA Claim against only Collection Defendants
Lastly, in Claim Five, Plaintiffs allege that Faneuil and LES, the Collection Defendants, violated the Fair Debt Collection Practices Act (“FDCPA”) by making false and misleading representations, and by engaging in unfair and abusive debt collection practices in violation of 15 U.S.C. § 1692g. (Am. Compl. IT 269.) Plaintiffs also allege that the Collection Defendants attempted to collect knowingly excessive and inflated fines and fees in violation of 15 U.S.C. §§ 1692e(2), 1692f(l).' (Id. at ¶ 270.)
E. Motions Now Before the Court
Transurban, Faneuil, and LES each filed a motion to dismiss with a memorandum in support. (Transurban’s Mot. [Dkt. 41]; Transurban’s Mem. in Supp. [Dkt. 42]; Faneuil’s Mot. [Dkt. 44]; Faneuil’s Mem. in Supp. [Dkt. 45]; LES’s Mot. [Dkt. 49]; LES’s Mem. in Supp. [Dkt. 50] (collectively “the motions”).) The motions raise four general issues that the Court must address. First, whether the Plaintiffs’ claims are justiciable and properly before this Court of limited jurisdiction. (See Transurban’s Mem. at 4-6.) Second, whether Plaintiffs sufficiently stated a claim for relief for their constitutional claims against Transurban. (See Transur-ban’s Mem. at' 8-21.) Third, whether Plaintiffs adequately state a claim for relief against the Collection Defendants under the FDCPA (See Faneuil’s Mem. at 9-19; LES’s Mem. at 6-16.) Fourth, whether Plaintiffs state proper claims for relief under Virginia and Maryland law against all named Defendants. (See Transurban’s Mem. at 21-30; Faneuil’s Mem. at 8-9, 20-28; LES’s Mem. at 18-27.) Fully briefed and argued, these issues are now properly before the Court for disposition.
II. Legal Standard
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer
And while the court must accept well-pleaded allegations as true when ruling on a Rule 12(b)(6) motion, the court need not accept as true legal conclusions disguised as factual allegations. Ashcroft v. Iqbal,
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro,
III. Analysis
A. Justiciability
Defendants assert a potpourri of challenges to Plaintiffs’ Article III standing in this case. Collection Defendants argue that none of the named plaintiffs have standing to sue for violations of the FDCPA. (LES’s Mem. at 11; Faneuil’s Mem. at 10.) Transurban argues that Plaintiffs Browne, Osborne, Chase, and Hale’s claims are moot, and therefore they have no standing to sue for either damages or injunctive relief. (Transurban’s Mem. at 6.) Additionally, Transurban urges the Court to find that none of the named plaintiffs has standing to seek injunctive relief against Transurban. (Id. at 7.) The Court addresses each of these issues in turn, ultimately finding that each named plaintiff has standing to assert each of their claims, before turning to the sufficiency of the facts alleged with regards to those claims. The Court begins with an analysis of the Plaintiffs’ standing to bring an action against the Collection Defendants under the FDCPA.
Article III standing requires, at a bare minimum, that a plaintiff allege “(1) an injury in fact (i.e'., a ‘concrete and particularized’ invasion of a ‘legally protected interest’); (2) causation (i.e., a ‘fairly ... trace[able]’ connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is ‘likely’ and not merely ‘speculative’ that the plaintiffs injury will be remedied by the relief plaintiff seeks in bringing suit).” David v. Alphin,
The Fourth Circuit has yet to address the issue of whether a plaintiff must suffer an actual economic loss to bring suit under the FDCPA, but several circuits which have considered the issue have found that no actual economic loss is required in order to have standing under the FDCPA. See Keele v. Wexler,
2. Justiciability of Claims Against Transurban
Transurban also challenges the justicia-bility of this case under Article III, arguing that all of Plaintiffs Browne, Osborne, Chase, and Hale’s claims are moot, and that none of the named Plaintiffs has standing to seek prospective relief. The two questions of mootness and standing to seek prospective relief are closely intertwined in this case, but the Court addresses Transurban’s mootness argument first.
An actual controversy must exist at all stages of federal court proceedings. DeFunis v. Odegaard,
A case only truly becomes moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, — U.S. -,
Transurban argues that Plaintiffs Brown, Osborne and Hale’s claims are moot as a result of Transurban’s dismissals of its state court actions against these Plaintiffs. (Transurban’s Mem. at 6.) Plaintiffs point out that “these ‘dismissals’ were all ‘voluntary’ and occurred after Plaintiffs filed the instant action.” (Pis.’ Opp’n. at 11.) In light of the voluntary nature of Transurban’s dismissals, the “heavy burden of persuading the Court that the challenged conduct cannot reasonably be expected to recur” lies on Transur-ban. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
Transurban does not carry its heavy burden in attempting to persuade the court that it will not resume the challenged toll violation enforcement scheme with regards to either its specific claims against Plaintiffs Osborne, Chase, and Hale, let alone with regards to its general toll enforcement practices. While Tran-surban has voluntarily dismissed its state-court enforcement actions against Plaintiffs Osborne, Chase, and Hale, Transur-ban’s claim against Chase was clearly dismissed without prejudice, and it is unclear if Transurban’s claim against Hale has been dismissed with or without prejudice. (Transurban’s Mem. at Ex. H & G.) The Court is therefore not satisfied that Tran-surban is precluded from bringing these claims again. Absent an order to the contrary in this case, Transurban could simply renew its actions for penalties against Chase and Hale at any time.
The dismissal with prejudice of Transur-ban’s state court claims against Brown and Osborne does preclude Transurban from resurrecting that particular claim for damages, but for the reasons laid down below, Brown and Osborne still have standing to sue for injunctive relief from Transurban’s enforcement policies. This potential prospective relief, in addition to the possibility that Brown and Osborne could receive at least nominal damages from Transurban on a section 1983 suit for alleged violations of their due process rights, is enough to establish that the Court can still grant
Finally, Transurban contends that Plaintiffs lack standing to seek prospective, injunctive relief against future collections by Transurban. (Transurban’s Mem. at 7.) Standing to sue for past damages does not necessarily grant standing to sue for prospective relief, rather “plaintiffs] must demonstrate standing separately for each form of relief sought.” DaimlerChrysler Corp. v. Cuno,
On the first requirement of the capable of repetition yet evading review doctrine, the “reasonable expectation” requirement, Transurban contends that a “highly attenuated chain of possibilities” must occur before Plaintiffs would be likely to suffer the same harm. (Transurban’s Mem. at 7-8 (quoting Clapper,
Turning to the second requirement of capable of repetition yet evading review, the “limited duration” requirement, Plaintiffs again allege facts that easily satisfy this requirement. The Fourth Circuit has held that the protracted proceeding of garnishing a bank account, Harris v. Bailey,
If the Court accepted Transurban’s argument in this regard, the toll collection process could theoretically evade judicial review for perpetuity, assuming Transur-ban simply pressured prospective plaintiffs into quickly settling and then voluntarily dismissed its suits against prospective plaintiffs with the resolve or financial means to resist settlement. This is precisely the kind of jurisprudential catch-22 the capable of repetition yet evading review and voluntary cessation of illegal activities doctrines were created to address. Accordingly, the Court finds that this case properly fits within the capable of repetition yet evading review exception to the general rule on standing to pursue prospective relief and Plaintiffs have standing to assert the claims in the amended complaint on behalf of themselves and those similarly situated. The Court will now address one final set of initial inquiries regarding Transurban’s claims that certain named Plaintiffs are barred from pursuing their instant claims against Transurban by either settlement or res judicata before turning to the sufficiency of Plaintiffs’ claims under Rule 12(b)(6).
3. Res Judicata and Alleged Settlement
The Court begins by noting that both res judicata and the existence and scope of a settlement or release agreement, are affirmative defenses. See Arizona v. California,
In support of their motion to dismiss, Transurban alleges that Plaintiffs Stanfield, Amarti, and Pizarro are precluded from pursuing their claims against Transurban here because they have “resolved the summons by settlement”. (Transurban’s Mem. at 5 (citing Am. Comp. ¶¶ 137, 151, 221).) Plaintiffs respond that any “settlements” are in fact a unilateral release of Transurban’s claims for fines against Plaintiffs, but absent any “evidence of any settlement agreement or any release executed by any Plaintiff’ the proposed settlements do not release Plaintiffs’ claims against Transurban. (Pis.’ Opp’n. at 8.) Generally, “once a competent party makes a settlement and acts affirmatively to enter such a settlement, her second thoughts at a later time upon the wisdom of the settlement do not constitute good cause for setting it aside”. Snyder-Falkinham v. Stockburger,
Without evidence demonstrating that Plaintiffs and Transurban agreed that Plaintiffs would release any potential claims against Transurban in return for Transurban’s acceptance of less than it claimed was owed, the “settlement” alleged by Transurban is better understood as an accord and satisfaction on the fines originally claimed by Transurban. Accord and satisfaction can serve to discharge a contract or a cause of action where a partial payment is offered and accepted as satisfaction for the full amount initially demanded. See Virginia-Carolina Elec. Works v. Cooper,
Finally, Transurban argues that because Plaintiff Amarti has already been found liable in state court for her first five alleged toll violations, her present claims against Transurban ought to be barred by res judicata. (Transurban’s Mem. at 5) However, this argument profoundly overstates the breadth and effect of res judica-ta in Virginia. This Court gives the same preclusive effect to prior state-court judge-ments as they would receive under the law of the state in which the judgment was rendered. Migra v. Warren City Sch. Dist. Bd. of Educ.,
In Virginia, the claim preclusive, res ju-dicata effect of judgments on actions commenced after July 1, 2006 is governed by Virginia Supreme Court Rule 1:6, which reads, in relevant part:
A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. A claim for relief pursuant to this rule includes those set forth in a complaint, counterclaim, cross-claim or third-party pleading.
Va. Sup.Ct. R. 1:6. The Supreme Court of Virginia has been reluctant to interpret the finer points of Rule 1:6, particularly its interplay with Virginia’s longstanding rule that all counterclaims are permissive rather than compulsory. See Va.Code Ann. § 16.1-88.01; Va. Sup.Ct. R. 3:9; Tyler v. Berger; No. Civ.A. 605cv00030,
The plain language of Rule 1:6 is readily compatible with the voluntary counterclaim rule, as it limits the application of res judicata to bar future claims only by a “party whose claim for relief ... is decided on the merits”. Va. Sup.Ct. R. 1:6. If, in the prior ease, no counterclaim was raised by the prior defendant, she cannot fairly be said to have been a “party whose claim for relief ... [was] decided on the merits,” as she has made no claim for relief in the previous case. Id. Defendants’ reliance on Winchester Neurological Consultants, Inc. v. Landrio, 74 Va.Cir. 480 (2008) is misplaced, as in Landrio the prior defendant had “asserted a counterclaim against WNC [the current defendant] in the First
In jurisdictions like Virginia where there is no compulsory counterclaim rule, there is one widely recognized exception to the general rule that res judicata will not preclude a subsequent claim by a defendant who did not file a counterclaim in the original action. These are cases where “[t]he relationship between the counterclaim and the plaintiffs claim [in the prior action] is such that [the] successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action.” Restatement (Second) of Judgments § 22(2)(b). This exception extends to cover both cases where one party seeks an injunction against enforcement of a judgement against him in a prior case. See Valley View Angus Ranch, Inc. v. Duke Energy Field Servs., Inc.,
B. Constitutional Claims
The first three claims in the amended complaint allege violations of the state and federal constitution against only Transur-ban.
1. State Action
Plaintiffs bring Claims One, Two, and Three pursuant to 42 U.S.C. § 1983,
“[TJhere is ‘no specific formula’ for determining whether state action is present. ... ‘What is fairly attributable [to the state] is a matter of normative judgment, and the criteria lack rigid simplicity.’ ” Id. at 182 (quoting Holly v. Scott,
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsi-ble____Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.
While merely private conduct will not qualify as state action, the Fourth Circuit has recognized four contexts in which a private party can be deemed a state actor. Andrews v. Fed. Home Loan Bank of Atlanta,
Here, as support for the proposition that it is not a state actor, Transurban relies heavily on American. Manufacturers Mu
As Transurban correctly notes, the Court must identify “the specific conduct of which the plaintiff complains” and determine whether it is fairly attributable to the State. (Transurban’s Mem. at 9-10 (quoting Mentavlos v. Anderson,
The only question that remains is whether the Commonwealth has delegated a function “traditionally exclusively reserved to the state.” Andrews,
For these reasons, the Court finds that Transurban acts under color of state law when collecting unpaid tolls and associated administrative fees, penalties, and costs, and therefore, it is subject to suit under section 1983.
2. Excessive Fines Claim
In Claim One, Plaintiffs allege that Transurban’s “enforcement of the civil penalty assessments discussed above constitutes a violation of the United States Constitution’s Eighth Amendment’s ... protection against excessive fines.” (Am. Compl. ¶ 237.) In support of its motion to dismiss for failure to state a claim, Tran-surban raises two arguments: (1) the excessive fines clause is not implicated where a private entity seeks or retains the penal
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. “The Excessive Fines Clause of the Eighth Amendment prohibits the government from imposing excessive fines as punishment.” U.S. ex rel. Drakeford, v. Tuomey,
Transurban first argues that because the civil penalties
Transurban’s second argument for dismissal of Claim One is that Plaintiffs have not adequately alleged that the civil penalties are “excessive.” (Transurban’s Mem. at 13-16.) “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” United States v. Bajakajian,
Here, Plaintiffs have alleged that Tran-surban seeks penalties and fees that are several hundred times the underlying dollar value of the unpaid toll violation. (Pl.s’ Opp’n at 29.) Transurban sought $3,413.75 from Brown based on a cumulative unpaid toll in the amount of $4.95, which is approximately 821 times the unpaid toll. (Am. Compl. ¶ 10.) Transurban argues that the repeated nature of Plaintiffs’ wrongful conduct justifies this facially disproportionate penalty. (See Transurban’s Mem. at 14 (citing BMW of N. Am., Inc. v. Gore,
Accepting Plaintiffs’ allegations as true, their claim bears a striking resemblance to the successful claim in Bajakajian. An unwitting toll road violation is, if anything, a less culpable act than a willful failure to report otherwise legally possessed currency. Bajakajian,
3. Due Process Claims
Transurban next challenges Plaintiffs’ procedural due process claim (Claim Two) and Plaintiffs’ substantive due process Claim (Claim Three). (Transurban’s Mem. at 16-21.) The sufficiency of each claim is addressed in turn.
a. Procedural Due Process (Claim Two)
Transurban argues that Plaintiffs fail to state a proper procedural due process claim because Plaintiffs fail to plead a lack of adequate notice and a lack of an opportunity to be heard. “At bottom, procedural due process requires fair notice of impending state action and an opportunity to be heard.” Snider Int’l Corp. v. Town of Forest Heights, Md.,
Here, Plaintiffs have sufficiently alleged both a lack of proper notice and an inadequate opportunity to be heard. Even though the Fourth Circuit upheld a similar statutory scheme in Snider regarding photo-enforced speed cameras, here, Plaintiffs are not challenging the constitutionality of the statutory scheme. Instead, Plaintiffs take issue with Transurban’s implementation and enforcement, and argue that Transurban’s procedures violate Plaintiffs’ constitutional rights. At this stage, Plaintiffs’ allegations in this regard are sufficient. Quite simply, Plaintiffs challenge the adequacy of Transurban’s notice because there is no immediate notification that a toll violation has occurred. (See Am. Compl. ¶¶ 111-13, 126-27, 154-55, 177-78, 193-95.) Additionally, aside from lacking immediate notice, Plaintiffs have alleged that at times, Transurban provides no subsequent notice of unpaid toll amounts before assessing excessive penalties and fees. (See Am. Compl. ¶ 173 (“During this conversation [in or around September of 2014], Ms. Pizarro was in
The Court need not address the sufficiency of Plaintiffs’ allegations regarding an opportunity to be heard, having already determined that Plaintiffs have sufficiently alleged inadequate notice. However, under the statute, toll violators who have received a summons are given an opportunity to be heard to challenge the violation through a hearing in state court, instead of just paying the fees and penalties. See Va.Code Ann. §§ 33.2-503(2)(c)-(d), (3)(b). This opportunity to be heard is sufficient to comport with procedural due process regardless of the increasing amount of civil penalties and fees that attach to such a right. See United States v. Bolding,
b. Substantive Due Process (Claim Three)
Plaintiffs allege that Transurban has violated their substantive due process rights by acting unreasonably, arbitrarily, and irrationally in seeking excessive penalties and administrative fees that are contrary to the authority granted under Virginia law. (Am. Compl. ¶¶ 249-257.) Because Plaintiffs claim a substantive due process violation under a legislative enactment, the Court employs a two-step inquiry. Hawkins v. Freeman,
[C]ourts must be reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this uncharted area are scarce and open-ended, which means that the courts must exercise the utmost care whenever we are asked to break new ground in this field, less the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of judges.
Id. at 738 (citations and international quotation marks and punctuation omitted).
Here, the parties have not suggested, and the Court indeed cannot find, that any fundamental right or liberty interest is at issue. Instead, at issue is Plaintiffs’ use of
C. FDCPA Claims
In Claim Five, Plaintiffs allege that Fa-neuil and LES, the Collection Defendants, violated the FDCPA by making false and misleading representations, and by engaging in unfair and abusive practices in violation of 15 U.S.C § 1692g. (Am. Compl. ¶ 269.) Plaintiffs also allege that the Collection Defendants attempted to collect knowingly excessive and inflated fines and fees in violation of sections 1692e(2) and/or 1692f(l). (Id. at ¶ 270.) The Court will deny Defendants’ motions with regard to Claim Five because under the facts alleged, the payments sought by Defendants are properly considered “debts”, these debts are subject to the FDCPA, and Plaintiffs allege facts which if true would constitute a violation of the FDCPA.
To state a claim for relief under the FDCPA, Plaintiffs must allege facts that, if true, would show: “(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt[ ] collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.” Dikun v.
The term ‘debt’ means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
15 U.S.C. § 1692a(5). Congress did not expressly define “transaction.” However, the majority of federal courts that have interpreted this provision have required the “transaction” to be consensual, where the parties negotiate or contract for consumer-related goods or services. See, e.g., Franklin v. Parking Revenue Recovery Servs., Inc., No. 13 C 02578,
Plaintiffs allege that all named plaintiffs were, at all relevant times, validly enrolled in a state E-ZPass program. (Am. Compl. ¶¶ 10-16.) Furthermore, Plaintiffs allege that they have acted pursuant to the requirements of the program in properly mounting the E-ZPass device on their windshields and linking their E-ZPass accounts to a valid credit card. (Id.) Finally, Plaintiffs allege that “in many cases, the Transurban Defendants’ equipment registers a “violation” even where a valid, fully funded E-ZPass account is in existence.” (Id. ¶ 55.) Therefore, the Court, accepting the facts alleged as true for the purposes of this Motion to Dismiss, concludes that the alleged toll violations at issue here are properly understood as “consensual transactions.”
Plaintiffs have contracted with E-ZPass for a transponder that communicates with toll collection booths across the country. In most regions of the country, this allows for more efficient travel. Indeed, motorists with an E-ZPass transponder need not wait in the “cash only” lines at toll booths, but instead, can continue driving through the “E-ZPass” lane, typically without delay. Under the facts of this case, Transurban, as the HOT operator, has installed E-ZPass gantries as the only toll collection method for the HOT lanes. At this stage, assuming that the allegations of the Amended Complaint are true, Plaintiffs have not in fact committed a toll infraction, but rather Transurban has simply neglected to collect the toll at the moment of entry. Their later actions in assigning fees and fines do not change this fact, nor do they alter the nature of the underlying debt.
The Collection Defendants also argue that Plaintiffs have failed to allege facts which, if true, would constitute behavior prohibited by the FDCPA. (Fa-neuil’s Mem. at 9; LES’s Mem. at 6.) However, Plaintiffs allege facts which, if true, could constitute a violation of the FDCPA. For purposes of assessing the validity of an FDCPA claim, the Court examines the representations made by the debt collector “from the vantage of the least sophisticated consumer.” Russell v. Absolute Collection Servs., Inc.,
Defendant LES admits that the Fourth Circuit has held in Clark v. Absolute Collection Serv., Inc.,.
Accordingly, because the object of the alleged collection activity is a debt for purposes of the FDCPA and Plaintiffs allege facts which, if true, would constitute acts or omissions prohibited by the FDCPA, Plaintiffs state a proper claim for relief and' the Court denies the Collection Defendants Motions to Dismiss with respect to Claim Five.
D. State Law Claims
Plaintiffs bring four causes of action under state law against all Defendants: unjust enrichment (Claim Four), violation of the Maryland Consumer Protection Act (“MCPA”) (Claim Six), violation of the Virginia Consumer Protect Action (‘"VCPA”) (Claim Seven), and tortious interference with contract (Claim Eight). (Am. Compl. ¶¶ 258-267, 272-312.) Each claim and each Defendant is addressed in turn. .
1. Unjust Enrichment
In Claim Four, Plaintiffs claim that “Defendants knowingly received and retained wrongful benefits and funds from
Here, the Court must dismiss Claim Four against the Collection Defendants. Aside from conclusory and boilerplate allegations (see Am. Compl. ¶¶ 258-267), there is no specific allegation that any of the named Plaintiffs conferred a benefit upon Faneuil or LES. Butts is distinguishable from the facts as alleged here, and does not alter this outcome. In Butts, Plaintiff specifically alleged “that she paid $2,691.03 to Defendant despite the absence of any valid obligation.”
Whether Plaintiffs have sufficiently stated a claim for unjust enrichment against Transurban is a closer call. Transurban first argues that the “settlement agreements” between various Plaintiffs and Transurban foreclose any implied contract under a theory of unjust enrichment. (See Am. Compl. ¶ 266 (“Certain Defendants may be protected by settlement or judgments with class members, but all Defendants are not party to such settlements or judgments.”).) Specifically, Plaintiffs Stanfield, Amarti, and Pizarro made payments to Transurban. (See Am. Compl. ¶¶ 137, 151, 174.) Otherwise, Plaintiffs Brown, Hale, Osborne, and Chase made no payments to Transurban. All Plaintiffs, however, fail to sufficiently allege facts that would support a claim for the following reasons.
Plaintiffs Stanfield, Amarti, and Pizarro’s unjust enrichment claim fails because even though they conferred a benefit on Transurban, at the time, there is no allegation that Transurban should have reasonably been expected to repay Plaintiffs. Stated differently, there is no allegation that “retention of the benefit by the defendant ... render[s] it inequitable for the defendant to retain the benefit without paying for its value.” Nossen v. Hoy,
It is apparent as a matter of law, from a fair reading of the amended complaint that an unjust enrichment claim cannot move forward as to these three Plaintiffs. Moreover, the same is true for the remain
2. Maryland and Virginia Consumer Protection Acts
Plaintiffs bring a claim under the Maryland Consumer Protection Act (“MCPA”) in Claim Six, and a claim under the Virginia Consumer Protection Act (‘VCPA”) in Claim Seven. “To properly state a cause of action under the VCPA, Plaintiff must allege (1) fraud, (2) by a supplier, (3) in a consumer transaction.” Nahigian v. Juno Loudoun, LLC,
Defendants argue that Plaintiffs have failed to state a claim for relief under the VCPA and MCPA with the requisite particularity, that the nature of the transaction at issue falls outside the scope of the VCPA and MCPA, Plaintiffs’ have failed to allege reliance on the alleged misrepresentations, and that Plaintiffs have failed to allege a loss in reliance on. the alleged misrepresentations. (Transurban’s Mem. at 27-28; LES’s Mem. at 21, 23; Faneuil’s Mem. at 26-28.) The Court will address these arguments as they apply to each Defendant in turn.
Plaintiffs have generally met the requirements of heightened particularity in pleading their VCPA and MCPA claims
Plaintiffs Amarti and Pizarro, under the VCPA, must also demonstrate that Tran-surban is a “supplier” with whom they have engaged in a “consumer transaction”. Nahigian,
With respect to the Collection Defendants, Plaintiffs’ MCPA and VCPA claims fail due to pleading deficiencies. As discussed in the above case law, there are at least two important requirements under both the VCPA and MCPA: sufficient allegations of fraudulent conduct, and reliance by plaintiffs thereon. Hamilton,
Likewise, Plaintiffs fail to allege that they have suffered any loss from reliance on a misrepresentation of fact by Defendant LES. It is not clear that the language in LES’s notices purporting to require Plaintiffs to file any dispute with LES in writing would satisfy the requirement of a misrepresentation of fact, but even assuming that it does, Plaintiffs fail to allege that they have relied on that purported requirement in any way, let alone in a way that caused Plaintiffs harm. As Plaintiffs fail to allege a misrepresentation by these defendants on which they have relied to their material detriment, the Court will dismiss Claims Six and Seven with respect to the Collection Defendants.
Plaintiffs claim that the summonses and debt collection letters “contain misrepre
Again, the Court understands that Plaintiffs disagree with the exorbitant nature of the fine amount and with Defendants’ collection practices generally. These harms, however, are more appropriately addressed and remedied by the constitutional claims regarding excessive fines and procedural due process. Here, Plaintiffs allegations under Claims Six and Seven fall short against Defendants Faneuil and LES because they fail to sufficiently plead facts supporting the existence of a false, or misleading, representation. Hamilton,
However, Plaintiffs have sufficiently alleged a specific misrepresentation by Defendant Transurban with respect to the administrative fees they claimed they accrued while processing Plaintiffs’ supposed toll violations. These administrative fee calculations played a significant role in Transurban’s calculation of the amount they sought from Plaintiffs in their summonses, and subsequently were relied on by Plaintiffs Stanfield, Amarti, and Pizarro in their decision to pay Transurban a certain amount in satisfaction of those state-court claims. Accordingly, the Court grants Defendants’ Motion to Dismiss Counts Six and Seven with respect to Defendants Faneuil and LES, and denies Defendants’ Motion to Dismiss Counts Six and Seven with respect to Defendant Transurban.
3. Tortious Inference with Contract
Lastly, in Claim Eight, Plaintiffs claim that Defendants have tortiously interfered with the contract between Plaintiffs and E-ZPass by charging excessive and unreasonable fees, and by assessing fees in excess of what is allowed under the underly
To state a claim under Virginia law for tortious interference with contract, Plaintiffs must allege sufficient facts that establish the following elements:
(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resulting damage to the party whose relationship or expectancy was disrupted.
Stradtman v. Republic Servs., Inc., No. 1:14cv1289 (JCC/JFA),
Here, Plaintiffs allege that Tran-surban tortiously interfered with Plaintiffs’ contract with E-ZPass by preventing Plaintiffs “from obtaining the full benefits of this contractual relationship,” and that the Collection Defendants tortiously interfered “by attempting to collect debts purportedly owing for use of HOT lanes.” (Am. Compl. ¶¶301, 307, 309.) Plaintiffs allege that Transurban’s equipment frequently “registers a ‘violation’ even where a valid, fully funded E-ZPass account is in existence ... assessing] fines and penalties for purported toll violations that were not violations at all.” (Am. Compl. ¶ 55.) The Virginia, Maryland, and New York E-ZPass contracts all allow fees and penalties where a toll violation has actually occurred due to “failure to maintain a positive E-ZPass balance.” (Am. Compl. ¶¶ 50-52.) However, none of the applicable E-ZPass contracts provide for the possibility that Plaintiffs could face any punitive action for using a properly installed transponder connected to a funded E-ZPass account which simply is not read by the toll operator. In fact, the benefit conferred to Plaintiffs in return for their subscription to the E-ZPass system in each of these states is the promise that Plaintiffs may “use toll roads and may be assessed tolls and reasonable administrative fees and civil penalties where appropriate." (Id.K 299) (emphasis added). As Defendant Transurban is alleged to have assessed administrative fees and civil penalties where no violation has occurred, they have prevented the state E-ZPass programs of Virginia, Maryland, and New York from carrying out their promise to provide “toll road use services.” (Id. ¶ 298). Thus, Defendant Transurban has caused these state E-ZPass programs, a third party, “to breach their contracts with Plaintiffs.” Stradtman,
Plaintiffs have therefore alleged facts which, if true, can support a claim for tortious interference with contract. The Court accordingly denies Defendants’ Motion to Dismiss Count Eight.
E. Request for Leave to Amend the Amended Complaint
In the event that the Court dismisses any of Plaintiffs’ claims, Plaintiffs request leave to amend the complaint for a second time. Leave to amend a pleading “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). “[L]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” Laber v. Harvey,
IV. Conclusion
For the foregoing reasons, the Court grants the motions in part as follows: Claims Three and Four are dismissed in their entirety. Claims Six and Seven are dismissed as applied to The Collection Defendants, LES and Faneuil. Claims One, Two, Six, Seven, and Eight against Tran-surban will remain, as will Claims Five and Eight against LES and Faneuil. Plaintiffs are granted leave to amend their complaint.
An appropriate Order shall issue.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, it is HEREBY ORDERED that:
(1) Transurban Defendants’ Motion to Dismiss [41] is GRANTED with respect to Plaintiffs’ Claims Three and Four, and DENIED with respect to Plaintiffs’ Claims One, Two, Six, Seven, and Eight;
(2) Defendant Faneuil, Inc.’s Motion to Dismiss [44] is GRANTED with respect to Plaintiffs’ Claims Four, Six, and Seven, and DENIED with respect to Plaintiffs’ Claims Five and Eight;
(3) Defendant Law Enforcement Services, LLC’s Motion to Dismiss [49] is GRANTED with respect to Plaintiffs claims Four, Six, and Seven, and DENIED with respect to Plaintiffs claims Five and Eight;
(4) Plaintiffs’ Claim Three, for substantive due process violations, is DISMISSED WITHOUT PREJUDICE;
(5) Plaintiffs Claim Four, for unjust enrichment, is DISMISSED WITHOUT PREJUDICE;
(6) Plaintiffs Claim Six, for violations of the Maryland Consumer Protection Act, is DISMISSED WITHOUT PREJUDICE only as to Defendants Faneuil, Inc. and Law Enforcement Services, LLC;
' (8) Plaintiffs’ request for leave to amend the Complaint is GRANTED;
(9) Plaintiffs shall file an amended Complaint no later than November 10, 2015;
(10) Defendants shall file a responsive pleading no later than November 20, 2015; and
(11) The Clerk of Court shall forward copies of this Order and the accompanying Memorandum Opinion to all counsel of record.
This matter is continued.
It is SO ORDERED.
Notes
. "There is a public need for timely development and/or operation of transportation facilities within the Commonwealth that address the needs identified by the appropriate state, regional, or local transportation plan by improving safety, reducing congestion, increas
. All summonses for civil violations must be executed on a form prescribed by the Supreme Court of Virginia. See generally Va. Code Ann. § 33.2-503. A summons issued for a violation may be executed by first-class mailing to the address of the owner of the vehicle as shown by records maintained by the Department of Motor Vehicles. Va.Code Ann. § 33.2-503(2)(c) (citing Va.Code Ann. § 19.2-76.2). “HOT lanes operator personnel or their agents mailing such summons shall be considered conservators of the peace for the sole and limited purpose of mailing such summons.” Id.
. "Any action under this section shall be brought in the general district court of the county or city in which the violation occurred.” Va.Code Ann. § 33.2-503(7). Any appeal as a matter of right is heard de novo by the circuit court. Va.Code Ann. § 16.1-106.
. Practically speaking, a "violation” of the HOT lanes law could occur for a variety of reasons. (See Am. Compl. ¶¶ 55-58 (alleging a violation could occur because the electronic toll reading equipment (hereinafter referred to as a "gantry”) simply fails to register a valid E-ZPass, or because of a tinted windshield, position of the car in the HOT lane, a dead E-ZPass battery, or cancelled credit card account).) A violation could also occur if the vehicle does not have an E-ZPass transponder, does not have an active E-ZPass account, or has allowed funding to the E-ZPass account to expire. However, “[t]he underlying reason for any particular purported toll violation is irrelevant for the purposes of the claims herein. Regardless of the reason for the violation, the Transurban Defendants' enforcement procedures for purported toll violations are contrary to law.” (Id. at ¶ 54.)
. Plaintiffs signed up for an E-ZPass account through various states, including New York, Maryland, or Virginia. This distinction is irrelevant for purposes of the motions now before the Court.
. Plaintiff Jocelyn Chase does not allege that her E-ZPass account was linked to a valid payment method for automatic replenishment. (Am. Compl. ¶ 204.)
. Amarti claims that Transurban assessed $82 in costs for the first toll violation in the amount of $4.80. (Am. Compl. ¶ 143(a).) Otherwise, Transurban assessed $72 in costs for each subsequent toll violation. (Id. at ¶ 143(b)-(y).)
. After contacting Transurban, the Transur-ban employee advised that Pizarro had committed four additional toll violations in July of 2013 that she was not yet aware of, and offered to settle these charges for 413.90 to avoid having them go to court. (Am. Compl. ¶ 173.)
. Transurban allegedly assessed a $50 civil penalty for the second violation, but escalated from there. (Am. Compl. ¶ 182(b).)
. Plaintiffs propose three "classes.” (Am. Compl. ¶ 221.) Class One, the "Outstanding Fee or Civil Penalties Class,” constitutes all users of HOT lanes in Virginia who held an E-ZPass account at the time of the purported violation and who have been assessed fees or penalties by Transurban but who have not executed a release or had judgments entered against them. (Id.) Class Two, the "Settlement/Judgment Class,” constitutes all users of HOT lanes in Virginia who held an E-ZPass account at the time of the purported violation and who have been assessed fees or penalties by Transurban, have been issued a summons by Transurban, and who have resolved the summons by settlement or judgment. (Id.) And Class Three, the "LES Fair Debt Collection Practices Class,” constitutes all natural persons who received correspondence from LES (1) in an attempt to collect a debt on behalf of Transurban; (2) that was incurred primarily for personal, household, or family purposes; and (3) during the one year period prior to the filing of this Complaint, and all natural person who received correspondence from LES stating, "If you wish to dispute the validity of this debt or any portion thereof, you must notify this office, in writing, using the affidavit on the reverse side of this notice. Otherwise, we will assume the debt is valid and will pursue all means available for its collection.” (Id.)
. Plaintiffs erroneously refer to Article I, Section 11 of the Virginia Constitution, which discusses, inter alia, due process of law, and is cited in Claim Two. (See Am. Compl. at 53, 54.)
. Plaintiffs do not bring these claims against Faneuil and LES. (See Pls.'s Opp’n at 19 n. 19 (citing Am. Compl. ¶¶ 236, 243, 253).)
. "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....” 42 U.S.C. § 1983.
. “The same analysis applies to whether an action was taken 'under color of state law’ as required by § 1983 and whether the action was state action.” Moore v. Williamsburg Reg’l Hosp.,
. In a footnote, Transurban also tersely asserts that if it was a state actor, it would be entitled to sovereign immunity under the Eleventh Amendment. (See Transurban's Mem. at 11 n. 7.) It elaborates, albeit briefly, in its reply brief. (See Transurban's Reply [Dkt. 56] at 9.) Without the benefit of full briefing and a more complete record, the Court declines to consider whether Transur-ban is entitled to sovereign immunity. Indeed, at this early stage in the proceeding, it cannot make such a finding without more in the record. See Pele v. Penn. Higher Educ. Assistance Agency,
. Transurban argues that Plaintiffs do not assert that the administrative fees violate the Eighth Amendment, only the civil penalties. (Transurban’s Mem. at 13.) But Plaintiffs are challenging the toll collection process in its entirety, which necessarily includes all associated fees, penalties, and costs. (Am. Compl. ¶¶ 10-16, 237.) At this stage, the Court accepts this allegation as true. Whether Plaintiffs can ultimately prove this claim and prevail after a period of discovery is another question left for another time. See Austin v. United States, 509 U.S. 602, 610,
. In oral argument on this motion, Mr. Kidney, attorney for Transurban, admitted that “if,you go to trial [challenging the alleged toll violation], you would pay the court. The statute says that the court should then direct that money to the county where the violation has occurred, and then the county directs that money to Transurban.” Transcript of Motions Hearing at 24.
. Similarly, Plaintiffs are also easily distinguishable from the violating homeowners in Moustakis v. City of Fort Lauderdale,
. The Due Process clauses of the United States Constitution are co-extensive with those in the Virginia Constitution. See Solem v. Helm,
. All parties seem to agree that Virginia law applies to Claims Four, Seven, and Eight, while Maryland law applies to Claim Six. Therefore, the Court applies Virginia law to Claims Four, Seven, and Eight, and Maryland law to Claim Six for purposes of resolving ■ these motions and without completing a choice of law analysis. Cf. G4I Consulting, Inc. v. Nana Servs., LLC, No. 1:11cv810 (LMB/TCB),
. Transurban has not challenged its status as a “supplier'' in any of its briefs or at oral argument on this motion.