Anthony MAZZA, Plaintiff, v. VERIZON WASHINGTON DC, INC., et al., Defendants.
Civil Action No. 11-719 (EGS)
United States District Court, District of Columbia.
March 29, 2012.
851 F. Supp. 2d 28
Natalie Olivia Ludaway, Leftwich & Ludaway, Washington, DC, for Defendants.
MEMORANDUM OPINION
EMMET G. SULLIVAN, District Judge.
Plaintiff Anthony Mazza, proceeding pro se, brings this case against defendants
I. BACKGROUND
Mazza is a resident of Washington, D.C. and a former customer of defendants Verizon Wireless and VZDC. Compl. ¶¶ 3, 13. Mazza had a “bundled services” plan with Verizon Wireless and VZDC, whereby Verizon Wireless and VZDC supplied him with home telephone, cellular phone, and residential internet services. Compl. ¶¶ 13-14. Mazza alleges that he terminated this plan on April 25, 2007. Compl. ¶ 14. On or about that same date, Mazza was notified of an outstanding bill due and owing Verizon Wireless in the amount of $1,006.57. Compl. ¶ 17. On May 1, 2007, Mazza caused payment to Verizon Wireless via personal check in the amount of $1,006.57. Compl. ¶ 18. Mazza alleges that Verizon Wireless cashed the personal check on May 8, 2007. Compl. ¶ 19 (citing Ex. A). On or about that same date, Mazza received a bill from VZDC in the amount of $1,138.45. Compl. ¶ 20. Mazza believed that the difference between the bill and his recent remittance ($131.88) was the result of excessive charges and contacted the Customer Service department of VZDC. Compl. ¶ 21. However, Mazza alleges that VZDC informed him that the $131.88 amount was for a prior bill, which had already been paid, but, according to the VZDC representative, had not yet been processed by the cancellation team, which was “a common problem.” Compl. ¶ 22.
Between July and September 2007, Mazza alleges that he responded to several VZDC inquiries—both verbally and in writing—regarding a “past due amount owed” to them. Compl. ¶ 23. Thereafter, between June 2008 and June 2009, Mazza received several requests—verbally and in writing—from defendant AFNI, demanding payment of $1,138.45 due their client, VZDC. Compl. ¶ 24. Mazza alleges that, on or about June 2010, he received from defendant AFNI a “Settlement Offer,” in which AFNI offered to accept payment of “$569.23, half the current amount due” on his “account with AFNI.” Compl. ¶¶ 25-26 (citing Ex. B). Mazza alleges that he called AFNI to ascertain what was meant by his “account with AFNI,” and he was informed that a collection notice had been reported to Consumer Credit Bureaus. Compl. ¶ 27.
According to Mazza, he made multiple inquiries of all of the defendants—both verbally and in writing—denying owing monies, requesting inquiry into the
Mazza, proceeding pro se,2 filed his Complaint in this action on April 13, 2011. Defendants have filed a Motion to Dismiss the Complaint pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure. That motion is now ripe for determination by the Court.
II. LEGAL STANDARDS
A. Rule 12(b)(2)
On a motion to dismiss pursuant to
When determining whether personal jurisdiction exists over a defendant, the court need not treat all of a plaintiff‘s allegations as true. Instead, the court “may receive and weigh affidavits and any other relevant matter to assist it in deter-
B. Rule 12(b)(6)
A motion to dismiss under
“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Even a pro se complainant, however, must plead “factual matter that permits the court to infer ‘more than the mere possibility of misconduct.‘” Atherton, 567 F.3d at 681-82 (quoting Iqbal, 556 U.S. at 679).
III. ANALYSIS
A. FCRA Claims
Mazza claims that defendants VZDC and AFNI violated the FCRA,
Section 1681s-2 of the FCRA sets forth “[r]esponsibilities of furnishers of information3 to consumer reporting agencies,” de-
The FCRA imposes civil liability on any person who willfully or negligently fails to comply with any of the Act‘s requirements. See
However, as courts in this District and multiple Circuits have held, the FCRA does provide a private right of action for violations under Section 1681s-2(b). See Haynes, 825 F.Supp.2d at 295 (citing SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir.2011); Gorman, 584 F.3d at 1154); see also Chiang v. Verizon New Eng., Inc., 595 F.3d 26, 36 (1st Cir.2010); Saunders v. Branch Banking & Trust Co., 526 F.3d 142, 149 (4th Cir.2008); Westra v. Credit Control of Pinellas, 409 F.3d 825, 826-27 (7th Cir. 2005).4 A plaintiff cannot establish a claim under this section, however, merely by showing that he notified the furnisher of
In his Complaint, Mazza alleges that he “made multiple inquiries of Defendants Verizon Communications, [VZDC], Verizon Wireless, and [AFNI]—both verbally and in writing, denying owing monies, requesting inquiry into the amounts remitted and cashed by Defendant Verizon Wireless, and demanding the reversal of negative credit reporting.” Compl. ¶ 28. Mazza fails to allege, however, that he notified any CRA of the dispute, that the CRA in turn notified defendants, so as to trigger any duty under Section 1681s-2(b), and that defendants either failed to undertake the required investigation or did so negligently or willfully. See Pouth Phrasavang, 656 F.Supp.2d at 203-04. In Mazza‘s Opposition, however, he includes the following new allegations: “Plaintiff alleges: i) CRA notification of a dispute; ii) notification to Defendants; and, iii) actively seeks discovery in the matter,” to determine whether there were actual inaccuracies that defendants’ reasonable investigation would have been able to discover. Pl.‘s Opp‘n to Defs.’ Mot. to Dismiss (“Pl.‘s Opp‘n“) at 20. Moreover, in the context of his FDCPA claims, Mazza asserts that he “disputed the debt with all Credit Bureaus and all Defendants. The Credit Bureaus indicated that the dispute had been researched and affirmed by the Creditors, AFNI [] and [VZDC].” Id. at 22-23. These allegations relate to Mazza‘s claims under the FCRA. Because Mazza is proceeding pro se, the Court properly construes his Complaint to include the arguments raised in his Opposition. See Richardson v. United States, 193 F.3d 545, 548-49 (D.C.Cir.1999) (holding that the district court abused its discretion in failing to consider a pro se plaintiff‘s complaint in light of his response to the defendant‘s motion to dismiss); Fennell v. AARP, 770 F.Supp.2d 118, 121, 125 (D.D.C.2011). Having read all of Mazza‘s filings together, the Court finds that Mazza has pled sufficient facts to set forth a claim for relief under Section 1681s-2(b).
Therefore, the Court hereby DENIES defendants’ Motion to Dismiss as to claims raised under Section 1681s-2(b).
B. FDCPA Claims
Mazza claims that defendants VZDC and AFNI violated the FDCPA,
The FDCPA protects (1) consumers (2) who have been subjected to abusive, deceptive or unfair debt collection practices (3) by a debt collector (4) in an attempt to collect a debt. Muldrow v. EMC Mortg. Corp., 657 F.Supp.2d 171, 174-75 (D.D.C.2009) (citing Piper v. Portnoff, 396 F.3d 227, 232 (3d Cir.2005)); see also
(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts....
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
(6) Except as provided in
[15 U.S.C. § 1692b] , the placement of telephone calls without meaningful disclosure of the caller‘s identity.
In their Motion to Dismiss, defendants argue that Mazza‘s claims under the FDCPA are time-barred, that VZDC‘s collection actions are not subject to the FDCPA, and alternatively, that Mazza has failed to state a claim for violation of the FDCPA. The Court addresses each argument in turn.
1. Timeliness of Plaintiff‘s Claims under the FDCPA
The FDCPA provides that an action to enforce liability under the Act may be brought “within one year from the date on which the violation occurs.”
2. Exemption of VZDC from the FDCPA
Defendants argue that VZDC‘s collection actions are not subject to the FDCPA because a creditor‘s actions to collect its own debts are specifically exempted. Defs.’ Mem. at 6 (citing
The FDCPA defines a “debt collector” as:
[A]ny person...in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... [T]he term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.
Accordingly, the Court will GRANT defendants’ Motion to Dismiss the FDCPA claims as to VZDC.
3. Failure to State a Claim for a Violation of the FDCPA
Finally, defendants argue that Mazza has failed to state a claim for violation of the FDCPA pursuant to
As noted above, Section 1692d of the FDCPA provides that a debt collector “may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”
Mazza alleges that defendant AFNI initiated “a pattern of abusive collection strategies against [him], including repeated telephone calls and written requests for payment, after [he] had affirmatively denied owing the monies claimed and furnished proof of payment.” Compl. ¶ 59. For example, Mazza alleges that from about June 2008 to June 2009, he received several requests for payment—both verbally and in writing—from AFNI for a past due amount owed to AFNI‘s client, VZDC. Compl. ¶ 24. In addition, Mazza alleges that he received from AFNI a “Settlement Offer” agreeing to accept payment of half of the “current amount due.” Compl. ¶ 25 (citation omitted). Finally, Mazza alleges that he made multiple inquiries of AFNI requesting inquiry into the dispute and demanding reversal of the negative credit reporting. Although AFNI pledged to investigate the dispute, it “continue[d] to make demands for payment.” Compl. ¶¶ 28, 31. Construed liberally, these allegations are sufficient to state a claim for violation of Section 1692d.8
In his Opposition, Mazza additionally argues that his claim regarding defendants’ FDCPA violations “is the prohibition in § 1692e against ‘any’ false or deceptive representations or means made in connection with the collection of a debt [including]...the ‘false representation of the character, amount, or legal status of any debt.‘” Pl.‘s Opp‘n at 22 (quoting
Accordingly, the Court will DENY defendants’ Motion to Dismiss with respect to Mazza‘s claims under Section 1692d.9
In this Circuit, “[c]omplaints may [] be dismissed, sua sponte under Rule 12(b)(6) whenever the plaintiff cannot possibly win relief.” Best v. Kelly, 39 F.3d 328, 331 (D.C.Cir.1994) (internal citation and quotation marks omitted); see also Moore v. Motz, 437 F.Supp.2d 88, 94 (D.D.C.2006) (dismissing sua sponte the plaintiff‘s claim for “failure to fulfill a campaign promise,” as such a cause of action does not exist). Here, Mazza has alleged two common law claims for “intentional tort” and “ongoing pattern and practice of bad faith dealing.” Compl. ¶¶ 38-49. Defendants inexplicably do not dispute the merits of Mazza‘s common law claims. However, finding itself unable to discern any basis for a claim of “intentional tort” or an “ongoing pattern and practice of bad faith dealing,” the Court will exercise its discretion to dismiss these claims, sua sponte, pursuant to
D. Personal Jurisdiction Over Verizon Communications
Finally, defendants argue that the Court should dismiss defendant Verizon Communications because Mazza has not alleged any basis for personal jurisdiction over Verizon Communications. See Defs.’ Mem. at 8-9. According to defendants, Verizon Communications has no contacts in the District of Columbia: “[a]t all times pertinent to Plaintiff‘s suit, Verizon Communications did not and currently does not operate or do business in the District of Columbia. Specifically, Verizon Communications is not now, nor has [it] ever been engaged in the provision of telecommunications services in the District of Columbia, nor the collection of debts associated with such services.” Id.; see also Defs.’ Reply, Ex. 1, Motion of Defendant Verizon Communications Inc. to Set Aside Default and Dismiss Statement of Claim, Ex. C, Declaration of Alexander Shekhter (“Shekhter Decl.“), at ¶ 6 (“Verizon Communications Inc. does not have offices in the District of Columbia, does not own or lease any real property in the District of Columbia, and does not advertise, solicit or conduct business in the District of Columbia.“).
As noted above, it is plaintiff‘s burden to make a prima facie showing of personal jurisdiction over the defendants. See First Chi. Int‘l, 836 F.2d at 1378. In the D.C. Circuit, personal jurisdiction “must be determined by reference to District of Columbia law.” United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995). To determine whether the court may exercise so called “specific” jurisdiction over a non-resident defendant,10 the court en-
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia;
(5) having an interest in, using, or possessing real property in the District of Columbia[.]
The Court finds that Mazza has not met his burden of establishing a basis for specific jurisdiction under any of the relevant categories set forth in the long-arm statute. Mazza alleges that Verizon Communications “is responsible for establishing revenue targets, operational goals and guidelines, customer acquisition and support strategies for [defendants VZDC and Verizon Wireless] ... [and] is responsible for the infrastructure and client databases for [defendants VZDC and Verizon Wireless].” Compl. ¶¶ 7-10. With respect to the instant claims, Mazza states only that he made multiple inquiries of all of the defendants, including Verizon Communications, in an effort to dispute the charges owed and demand reversal of any negative credit reporting. Compl. ¶ 28. According to Mazza, defendant Verizon Communications “continually denied culpability,” but later “pledged to address the matter promptly” and did not resolve it. Compl. ¶¶ 32-33, 35. The Court finds that these allegations do not demonstrate that Verizon Communications directed any activity into the District of Columbia related to Mazza‘s claims. Because the Court finds that Mazza cannot establish specific jurisdiction under the long-arm statute, the Court need not reach the question of whether exercising jurisdiction over Verizon Communications would comport with due process.
Ordinarily, a corporation‘s contacts with a forum may not be attributed to affiliated corporations. See Material Supply Int‘l, Inc. v. Sunmatch Indus. Co., 62 F.Supp.2d 13, 19 (D.D.C.1999). An exception exists, however, “where affiliated parties are ‘alter egos’ of a corporation over which the Court has personal jurisdiction; in that case the corporation‘s contacts may be attributed to the affiliated party for jurisdictional purposes.” Diamond Chem. Co. v. Atofina Chems., Inc., 268 F.Supp.2d 1, 7 (D.D.C.2003) (internal quotation omitted). Courts will impute personal jurisdiction under an alter ego theory in cases where the parent company “so dominated the [subsidiary] corporation as to negate its separate personality.” Material Supply, 62 F.Supp.2d at 20 (internal quotation omitted). The alter ego test thus analyzes “(1) whether there is such unity of interest and ownership that the separate personalities of [the companies] no longer exist; and (2) whether an inequitable result will follow if the court treats [the subsidiary‘s] allegedly wrongful acts as those of [the subsidiary] alone.” Id. (quoting Smith v. Washington Sheraton Corp., 135 F.3d 779, 786 (D.C.Cir.1998)). The first prong requires a showing that Verizon Communications’ control over VZDC and/or Verizon Wireless is “active and substantial.” Id. (citation omitted). To assess whether there is a unity of interest and ownership, the court may consider the following factors: (1) the nature of the corporate ownership and control; (2) failure to maintain corporate minutes or records; (3) failure to maintain corporate formalities; (4) commingling of funds and assets; (5) diversion of one corporation‘s funds to the other‘s uses; and (6) use of the same office or business location. See id. (citing Labadie Coal Co. v. Black, 672 F.2d 92, 97-99 (D.C.Cir.1982)). Disregarding the separate identities of a corporate parent and its subsidiary is, however, a “rare exception grounded in equity considerations,” Adm‘rs of the Tulane Educ. Fund v. Ipsen Pharma, S.A.S., 770 F.Supp.2d 24, 28 (D.D.C.2011), and is only to be applied when “adherence to the fiction of the separate existence of the corporation would sanction a fraud or promote injustice,” Diamond Chem., 268 F.Supp.2d at 9 (internal quotation omitted); see also In re Baan Co. Secs. Litig., 245 F.Supp.2d 117, 129 (D.D.C.2003).
In his Opposition, Mazza states only that, “given Verizon Communications’ relationship with its subsidiaries/investments in [the] District of Columbia[,] this Court should find that Plaintiff has clearly proffered evidence beyond the requirements of a prima facie showing of personal jurisdiction over Verizon Communications.” Pl.‘s Opp‘n at 13. These mere conclusory statements, without more, do not demonstrate that Verizon Communications exercises “active and substantial con-
Accordingly, the Court hereby GRANTS defendants’ Motion to Dismiss Verizon Communications.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART defendants’ Motion to Dismiss. Specifically, the Court will GRANT defendants’ Motion to Dismiss the FDCPA claims as to VZDC and will GRANT defendants’ Motion to Dismiss as to Verizon Communications. In addition, the common law claims contained in Counts I and II of the Complaint are sua sponte DISMISSED WITHOUT PREJUDICE. In all other respects, the Motion to Dismiss is DENIED. An appropriate Order accompanies this Memorandum Opinion.
EMMET G. SULLIVAN
United States District Judge