United States District Court, E.D. North Carolina, Western Division
C. DEVER III UNITED STATES DISTRICT JUDGE
30, 2018, Jorge Suarez ("Suarez" or
"plaintiff'), on behalf of himself and others
similarly situated, filed a complaint in Wake County Superior
Court against Camden Property Trust ("Camden Property
Trust"), Camden Development, Inc. ("Camden
Development"), and CSP Community Owner, LP, f/k/a CSP
Community Owner, LLC, d/b/a/ Camden Westwood ("Camden
Westwood"; collectively, "defendants"),
alleging violations of the North Carolina Debt Collection Act
("NCDCA"), N.C. Gen. Stat. § 75-50, et seq,
[D.E. 1-6]. On September 21, 2018, defendants removed the
action to this court under the Class Action Fairness Act of
2005 [D.E. 1].
October 5, 2018, defendants moved to dismiss the complaint
for lack of subject-matter jurisdiction and for failure to
state a claim [D.E. 17] and filed a memorandum in support
[D.E. 18]. On October 26, 2018, Suarez amended his complaint
[D.E. 20]. On November 9, 2018, defendants moved to dismiss
the amended complaint for lack of subject-matter jurisdiction
and for failure to state a claim [D.E. 21] and filed a
memorandum in support [D.E. 22]. On December 31, 2018, Suarez
responded in opposition [D.E. 24]. On January 28, 2019,
defendants replied [D.E. 26]. On February 1, 2019, Suarez
alternatively moved to remand [D.E. 27] and filed a
memorandum in support [D.E. 28]. On March IS, 2019,
defendants responded in opposition [D.E. 30]. On April 5,
2019, Suarez replied [D.E. 33]. As explained below, the court
denies as moot defendants' motion to dismiss Suarez's
complaint, denies in part and grants in part defendants'
motion to dismiss Suarez's amended complaint, and denies
as moot Suarez's motion to remand.
16, 2015, Suarez leased an apartment at Camden Westwood
Apartments, which defendants own. See Am. Compl. [D.E. 20]
¶ 21. On August 28, 2016, after Suarez vacated his
apartment, defendants sent a Final Account Statement (a
"Statement") to Suarez. See Id. ¶ 22;
Ex. A [D.E. 20-1]. According to the Statement, Suarez owed
defendants $147.76. See Am. Compl. [D.E. 20] ¶ 26; Ex. A
[D.E. 20-1]. The Statement notified Suarez that "[a]ny
balances not received within thirty (30) days will be sent to
a [third] party collection agency." Ex. A [D.E. 20-1].
The Statement stated that interest "will begin accruing
immediately on all balances sent to collections."
Suarez paid $82.76 of his remaining balance, he refused to
pay a $55.00 charge for "carpet stain removal" and
a $10.00 charge to replace keys. See Am. Compl. [D.E. 20]
¶¶ 26-29. During the final walkthrough of
Suarez's apartment, a leasing agent told Suarez that the
apartment "looked okay" and that Suarez "had
nothing to worry about." Id. ¶ 28. Suarez
believed that any carpet stains were ordinary wear and tear
and that the $55.00 charge was not appropriate. See
Id. Suarez also believed that, because he returned
all of the keys to his apartment, the $10.00 charge for key
replacement was not appropriate. See Id. ¶ 29.
Thus, Suarez believed that "he had fulfilled his
obligations as a tenant and did not owe any additional
amounts to [defendants]." Id. ¶ 31.
September 17, 2016, defendants e-mailed Suarez an updated
statement reflecting a new balance of $65.00. See id ¶
33; Ex. C [D.E. 20-3]. The updated statement also stated that
any unpaid balance would be referred to a collection agency
in 30 days. See Am. Compl. [D.E. 20] ¶ 37; Ex. C [D.E.
20-3]. In addition, an employee stated in the e-mail that
"[a]ny unpaid balance will go to a third party
collections agency in 10 days and will begin accruing
interest immediately." Ex. C [D.E. 20-3] 1. Although
defendants sent these statements to all tenants with unpaid
balances when their leases end, defendants only refer unpaid
balances that exceed $ 100 and only after 60 days. See Am.
Compl. [D.E. 20] ¶¶ 38, 42-45, 48, 54; Ex. D [D.E.
20-4]. Thus, Suarez alleges that these representations are
deceptive because they mislead tenants into believing that
defendants will refer any unpaid balances in 30 days
regardless of the amount owed. See Am. Compl. [D.E.
20] ¶¶ 50-67.
alleges that these "empty threats" potentially
cause similarly situated individuals to send money to
defendants that could be used for food, utility bills,
housing, or rent Id. ¶ 58; see Id.
¶ 59. According to Suarez, if consumers knew that
defendants would only refer their account to a third-party
collection agency in 60 days, and then only if the unpaid
balance exceeded $100.00, consumers would modify their
actions accordingly. See Id. ¶¶ 61-63.
Because of defendants' representations and his unpaid
balance of $65.00, Suarez suffered "anxiety, stress,
anger, frustration, and mental anguish." W. ¶ 72;
see Id. ¶¶ 73-74, 80-88. Suarez feared
that third-party collection agencies would harass
him and charge him higher fees, that his
employer would discover his delinquencies, and that his
credit score would fall. See id, ¶¶ 75-78. Suarez
claims that, if he knew defendants' actual policies about
referring unpaid debts to collection agencies, he would not
have lost sleep either from anxiety or from time spent
researching his defense. See Id. ¶¶ 90-91.
Suarez alleges that defendants violated the NCDCA by sending
deceptive Statements to all vacating tenants and purports to
sue on behalf of all former tenants who received a Statement
in the four years before Suarez filed his complaint in state
court. See Id. ¶¶ 92-142.
first contend that Suarez lacks Article IQ standing. To
invoke the power of a federal court, a plaintiff must
demonstrate that he has standing under Article IQ of the
Constitution. See Beck v. McDonald. 848 F.3d 262,
269 (4th Cir. 2017); Doe v. Obama, 631 F.3d 157, 160
(4th Cir. 2011). Absent Article IQ standing, a court lacks
subject-matter jurisdiction to hear a plaintiff's claims.
See White Tail Park. Inc. v. Stroube. 413 F.3d 451,
458-59 (4th Cir. 2005). To establish Article QI standing, a
plaintiff must show that "(1) [the plaintiff] has
suffered an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision." Friends of the
Earth. Inc. v. Laidlaw Envtl. Servs. (TOO. Inc.. 528
U.S. 167, 180-81 (2000); see Lujan v. Defs. of
Wildlife. 504 U.S. 555, 560-61 (1992); Hutton v.
Nat'l Bd. of Exam'rs in Optometry. Inc.. 892
F.3d 613, 619 (4th Cir. 2018); Doe, 631 F.3d at 160. These
requirements are the "irreducible constitutional
minimum of standing," Lujan, 504 U.S. at 560,
and they "guarantee that the plaintiff has a sufficient
personal stake in the outcome of a dispute to render judicial
resolution of it appropriate." Long Term Care
Partners. LLC v. United States. 516 F.3d 225, 231 (4th
Cir. 2008) (quotation omitted); Emery v. Roanoke City
Sch. Bd.. 432 F.3d 294, 298 (4th Cir. 2005).
is the "first and foremost" of the three
requirements of Article IQ standing. Spokeo. Inc. v.
Robins. 136 S.Ct 1540, 1547 (2016) (alteration omitted).
"To establish injury in fact, a plaintiff must show that
he or she suffered an invasion of a legally protected
interest that is concrete and particularized and actual or
imminent, not conjectural or hypothetical." Id.
at 1548 (quotations omitted); see Deal v. Mercer Cty. Bd.
of Educ.. 911 F.3d 183, 187 (4th Cir. 2018), cert,
docketed. No. 18-1487 (U.S. May 29, 2019). Although an
injury must be concrete (i.e., real and not abstract), it
need not be tangible. See Spokeo, 136 S.Ct. at
1548-49; Curtis v. Propel Prop. Tax Funding. LLC.
915 F.3d 234, 240-41 (4th Cir. 2019); Griffin v.
Dep't of Labor Fed. Credit Union. 912 F.3d 649, 654
(4th Cir. 2019); cf generally Pleasant Grow City. v.
Summum 555 U.S. 460 (2009); Church of the
Lukumi Babalu Aye. Inc. v. City of Hialeah. 508 U.S.
"violation of a statutory right" does not
"automatically satisf[y] the injury-in-fact
requirement" of Article m. Frank v flans, 139 S.Ct.
1041, 1046 (2019) (per curiam); see Spokeo. 136
S.Ct. at 1549. Rather, a plaintiff alleging that a defendant
violated his statutory rights still must have "a
personal stake in the case," which is "the
traditional core of standing." Krakauer v. Dish
Network. LLC. 925 F.3d 643, 653 (4th Cir. 2019).
"Private litigation . . . must vindicate the
plaintiffs' interests, rather than serve solely [as] a
vehicle for ensuring legal compliance." Id.
However, a "violation of a procedural right granted by
statute can be sufficient" for Article EH standing.
Spokeo. 136 S.Ct. at 1549; see Fed. Election
Comm'n v. Akins. 524 U.S. 11, 20-25 (1998). For
example, an "informational injury [can be] a type of
intangible injury that can constitute an Article HI injury in
fact." Dreher v. Experian Info. Sols.. Inc..
856 F.3d 337, 345 (4th Cir. 2017) (quotation omitted).
defendant can mount either a facial or a factual attack upon
standing. See Hutton. 892 F.3d at 620-21; Kerns
v. United States. 585 F.3d 187, 192 (4th Cir. 2009);
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
A facial attack asserts that a complaint fails to allege
facts upon which to base subject-matter jurisdiction. See
Hutton. 892 F.3d at 621 n.7; Adams. 697
F.2d at 1219. The court takes the factual allegations of the
complaint as true when a defendant makes a facial challenge
to subject-matter jurisdiction. See Beck. 848 F.3d
at 270; Kerns. 585 F.3d at 192; Adams, 697 F.2d at
evaluating a class action complaint, the Fourth Circuit
analyzes "standing based on the allegations of personal
injury made by the named plaintiffs." Hutton.
892 F.3d at 620 (quotation omitted); see Beck. 848
F.3d at 269; Doe, 631 F.3d at 160. Thus, if Suarez ...