United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN, District Judge
O'Boyle brings this putative class action against GC
Services Limited Partnership alleging violations of the Fair
Debt Collection Practices Act, which provides, in relevant
part, that “[a] debt collector may not use any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. According to O'Boyle, GC, in an attempt to
collect a credit card debt, sent her a letter indicating that
it would assume the validity of the debt unless she disputed
it in writing within 30 days. She argues that, although a
debt collector can assume that a debt is valid if the debtor
does not dispute it within 30 days after receiving written
notice of the debt, the debtor need not dispute the debt
in writing. See 15 U.S.C. §
1692g(a)(3). GC moves to dismiss for lack of subject-matter
jurisdiction and failure to state a claim upon which relief
can be granted. O'Boyle moves to compel discovery.
moves to dismiss for lack of subject-matter jurisdiction
arguing that O'Boyle lacks standing to sue because she
has not alleged that she suffered a concrete injury.
“Federal courts are courts of limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994). One limitation on
federal jurisdiction, rooted in Article III of the U.S.
Constitution, is that a plaintiff must have standing to sue
in order to “maintain a lawsuit in federal
court.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1546-47 (2016).
first element of standing, and the only element at issue
here, is that the plaintiff must have “suffered an
injury in fact.” Id. at 1547. “To
establish injury in fact, a plaintiff must show that . . .
she suffered ‘an invasion of a legally protected
interest' that is, ” among other things,
“concrete.” Id. at 1548 (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). A “concrete” injury is one that
“actually exist[s]”-i.e., an injury that is
“‘real, ' and not
‘abstract'”-though an injury need not be
“tangible” to be concrete. Id. at
1548-49 (quoting Webster's Third New International
Dictionary 472 (1971)).
argues that O'Boyle has alleged a “bare procedural
violation, divorced from any concrete harm, ” which is
insufficient to satisfy the injury-in-fact requirement of
standing. See Id. at 1549 (citing Summers v.
Earth Island Inst., 555 U.S. 488, 496 (2009);
Lujan, 504 U.S. at 572). A “procedural
violation” occurs where a “person . . . has been
accorded, ” but denied, “a procedural right,
” such as the right to “a hearing prior to denial
of [a] license application.” See Lujan, 504
U.S. at 572 & n.7. Ordinarily, a plaintiff has standing
to sue “to enforce a procedural requirement the
disregard of which could impair a separate concrete interest
of [hers].” Id. at 572. “But deprivation
of a procedural right without some concrete interest that is
affected by the deprivation-a procedural right in
vacuo-is insufficient to create Article III
standing.” Summers, 555 U.S. at 496.
to GC, O'Boyle's claims arise from its alleged
violation of § 1692g(a), which requires a debt collector
to provide a consumer with written notice of a debt in
collection containing certain disclosures, including “a
statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or
any portion thereof, the debt will be assumed to be valid by
the debt collector.” § 1692g(a)(3). GC argues
that, even if, as alleged, it failed to provide an accurate
version of this disclosure, O'Boyle does not seek to
enforce the procedural requirement at issue-that is, she does
not demand that she receive an accurate disclosure-and she
does not allege any resulting harm to her concrete interests,
so she lacks standing.
claims as alleged undoubtedly arise from a procedural
violation, but she alleges more than a bare
procedural violation. Indeed, she alleges that, rather than
simply failing to provide a disclosure required by the FDCPA,
GC affirmatively, or at least impliedly, misrepresented her
right to dispute a debt in collection other than in writing
and thereby suggested an artificially high barrier to raising
such a dispute. As she notes, the FDCPA expressly prohibits
debt collectors from using “any false representation or
deceptive means to collect or attempt to collect any
debt.” § 1692e(10). She argues that she
“need not allege any additional harm”
beyond that which the FDCPA proscribes. See Spokeo,
136 S.Ct. at 1549.
determining whether an intangible harm constitutes injury in
fact, both history and the judgment of Congress play
important roles.” Id. Misrepresentation (or
“deceit”) “has traditionally been regarded
as providing a basis for a lawsuit in English or American
courts, ” id.; see, e.g., Restatement
(First) of Torts §§ 525, 552 (1938), but common-law
liability for misrepresentation required proof of harm caused
by “justifiable reliance upon the misrepresentation,
” see Id. § 525. In enacting the FDCPA,
Congress identified the use of misrepresentation as an
“abusive debt collection practice” and
categorically barred its use by debt collectors. See
15 U.S.C. §§ 1692, 1692e. In other words, Congress
identified the use of misrepresentation for debt collection
purposes as a concrete harm in itself and elevated it to
“the status of [a] legally cognizable injur[y].”
Spokeo, 136 S.Ct. at 1549 (quoting Lujan,
504 U.S. at 578).
is well positioned to identify [and elevate] intangible harms
that” are “concrete” and “de
facto” but “that were previously inadequate
in law, ” as it did in enacting the FDCPA. Id.
(quoting Lujan, 504 U.S. at 578). As such,
“its judgment is . . . instructive and
important.” Id. I see no reasonable basis for
deviating from its judgment here, and GC does not provide
one. Thus, because O'Boyle alleges a concrete injury
identified and rendered actionable by Congress in the FDCPA,
she has standing to sue. I will, therefore, deny GC's
motion to dismiss for lack of subject-matter jurisdiction.
FAILURE TO STATE A COGNIZABLE CLAIM
moves to dismiss for failure to state a claim upon which
relief can be granted. GC argues that, even accepting the
truth of O'Boyle's factual allegations, her complaint
does not plausibly suggest that it violated the FDCPA by
misrepresenting her right to dispute the validity of her
debt. To the contrary, GC says, § 1692g(a)(3) impliedly
requires that consumers dispute the validity of debts in
writing, so its letter suggesting as much was accurate, not
false, deceptive, or misleading.
§ 1692g(a)(3), which permits a debt collector to assume
the validity of a debt unless the consumer
“disputes” it, other provisions of § 1692g
expressly require that a consumer dispute a debt in
writing. For example, § 1692g(a)(5) provides that,
“upon the consumer's written request . . ., the
debt collector will provide the consumer with the name and
address of the original creditor.” Similarly, §
1692g(b) states that “the debt collector shall cease
collection of the debt” pending verification if
“the consumer notifies the debt collector in writing .
. . that the debt . . . is disputed.”
this difference in language, the Third Circuit, in
Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991),
held that, “given the entire structure of section
1692g, subsection (a)(3) must be read to require that a
dispute, to be effective, must be in ...