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Mungo-Craig v. Navient Solutions, Inc.

United States District Court, E.D. North Carolina, Western Division

July 18, 2017




         This cause comes before the Court on plaintiffs motion to remand [DE 8], defendant's motion to dismiss [DE 11], plaintiffs motion for summary judgment [DE 17], as well as defendant's motion for summary judgment, or, in the alternative, to stay the matter pending disposition of the motion to dismiss [DE 18]. The matters have been fully briefed and are ripe for disposition. For the reasons discussed below, the motion to dismiss is granted and the matter will be closed.


         Plaintiff commenced this civil action on November 8, 2016, by filing a complaint against defendant[1] in Wake County Court, North Carolina, District Court Division. Plaintiffs complaint asserts claims against defendant under the federal Fair Debt Collection Practices Act ("FDCPA") and the North Carolina's Debt Collection Act ("NCDCA") related to defendant's efforts to service certain debts. Plaintiff seeks damages in the amount of $20, 500. On December 29, 2016, defendant removed the matter to this Court.


         The Court will first address plaintiffs motion to remand.[2] Removal of a civil action from state court is only proper where the federal district courts would have original jurisdiction, 28 U.S.C. § 1441, and it is the burden of the removing party to show that jurisdiction lies in the federal court. Dixon v. CoburgDairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc). Removal jurisdiction must be construed strictly in light of federalism concerns, and if jurisdiction in the federal district court is determined to be doubtful, remand is required. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).

         Federal district courts have original jurisdiction over all civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Removal is appropriate on the basis of federal question jurisdiction when the federal interest is apparent on the "face of the Complaint." Gully v. First Nat 7 Bank, 299 U.S. 109, 113 (1936). Here, plaintiff s complaint specifically asserts that defendant has violated the Fair Debt Collection Practices Act. [DE 1-1 at ¶ 3]. This assertion is repeated throughout the complaint. Id. at ¶¶ 1, 3, 4, 7, and 14. This is a clear and explicit invocation of federal jurisdiction, notwithstanding plaintiffs claims that she included the federal cause of action only to "coincide" with the state law cause of action or that she intends to rely only on the state statutes cited in her complaint. [DE 8 at 2]. Because plaintiffs complaint clearly presents a federal question as to plaintiffs FDCPA claim, this court has original jurisdiction over the matter and plaintiffs motion to remand is without merit. Additionally, this Court has supplemental jurisdiction over plaintiffs remaining state law claims because all of plaintiff s claims arise from a common nucleus of operative facts. 28 U.S.C. § 1367(a). For these reasons, plaintiffs motion to remand will be denied.

         Having found jurisdiction over this matter, the Court next turns to defendant's motion to dismiss. A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir.1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual allegations do not nudge the plaintiffs claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. The complaint must plead sufficient facts to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of misconduct. Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 256 (4th Cir. 2009). The court need not accept the plaintiffs legal conclusions drawn from the facts, nor need it accept as true unwarranted inferences, unreasonable conclusions, or arguments. Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Although the Court must construe the complaint of a. pro se plaintiff liberally, such a complaint must still allege "facts sufficient to state all the elements of [her] claim" in order to survive a motion to dismiss. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).

         In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the complaint, as well as those attached to the motion to dismiss so long as they are integral to the complaint and authentic. Fed.R.Civ.P. 10(c); Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007); Philips v. Pitt County Mem 7 Hosp., 572 F.3d 176, 180 (4th Cir. 2009). A court ruling on a motion to dismiss under Rule 12(b)(6) may also properly take judicial notice of matters of public record. Sec'y of State for Defence, 484 F.3d at 705.

         Defendant's first argument for dismissal contends that plaintiff does not allege sufficient supporting facts and ultimately cannot show that defendant is a "debt collector" as defined by the FDCPA and, therefore, cannot state a claim under that Act. The FDCPA prohibits the use of abusive, deceptive and unfair debt collection practices by debt collectors. 15 U.S.C. § 1692, et seq. The Act regulates the collection of "debts" by "debt collectors" by regulating the type and number of contacts a collector may make with the debtor. Under 15 U.S.C. § 1692a(6), a "debt collector" includes "any person who uses any instrumentality of interstate commerce or the mails 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." A "debt collector" does not include

any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

15 U.S.C. § 1692a(6)(F).

         While plaintiff stated in her complaint that defendant is a debt collector, such a conclusory assertion is not sufficient to meet the pleading standards laid out by Twombly and Iqbal. Instead, plaintiff must allege sufficiently plausible facts which set forth a cognizable claim for this Court to adjudicate. As plaintiff has asserted a claim under the FDCPA, plaintiff therefore must allege such facts sufficient to plausibly demonstrate that defendant is a "debt collector" as defined in that Act, and a failure to do so is fatal to this action. Plaintiffs complaint must also allege plausible facts to show that this is not a case covered by any exceptions listed in the Act. Again, a failure to allege such requisite facts is fatal to the action.

         As an initial matter, plaintiffs complaint fails to include any factual assertions to establish that defendant is a debt collector within the meaning of the FDCPA. Plaintiffs complaint is sparse on facts, and fails to demonstrate with a reasonable plausibility that defendant is a debt collector by trade or regularly attempts to collect debts on behalf of third parties. Heintz v. Jenkins,514 U.S. 291, 293 (1995); see also Davidson v. Capital One Bank (USA), N.A.,797 F.3d 1309, 1315-16 (11th Cir. 2015) ("The statutory text is entirely transparent. . .. [A] person must ...

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