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Lee v. Wells Fargo Home Mortgage

United States District Court, Fourth Circuit

December 13, 2013



NORMAN K. MOON, District Judge.


Plaintiff Elizabeth Lee ("Plaintiff") filed her complaint in this debt collection practices case in the Circuit Court of Rappahannock County on July 24, 2013. On August 28, 2013, Defendant Wells Fargo Home Mortgage ("Defendant") timely removed the case to this Court on the bases of federal question jurisdiction, diversity jurisdiction, and supplemental jurisdiction over any state law claims asserted. See Notice of Removal (docket no. 1). On September 4, 2013, Defendant filed a motion to dismiss Plaintiff's complaint as failing to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure (docket no. 4) (hereinafter "Motion to Dismiss"). That same day, the Clerk of the Court issued Plaintiff the required notice under Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), giving her twenty-one days to respond to Defendant's motion. See Roseboro Notice, docket no. 6.

Plaintiff responded on September 24, 2013 with several motions alleging this Court did not have subject matter jurisdiction and requesting that this Court stay removal (docket no. 18), vacate the judgment that removal is proper (docket no. 16), and set aside the Defendant's Motion to Dismiss until the subject matter jurisdiction issues had been determined (docket no. 20). On October 28, 2013, I construed Plaintiff's motions, collectively, as a motion to remand for lack of subject matter jurisdiction (hereinafter, collectively "Motion to Remand") and denied the motions. See Order on Motion to Vacate, docket no. 25. I found this Court has subject matter jurisdiction over Plaintiff's federal claims and chose to exercise supplemental jurisdiction over her state law claim. Id.

However, I granted Plaintiff's Motion to Amend her complaint (docket no. 22) to specify certain particulars of her cause of action and gave her twenty-one days from the date of my Order to file her amended complaint.[1] Id. That time period, plus three days to ensure the Court's Order reached Plaintiff by mail, expired on November 21, 2013. On December 2, 2013,

I issued an order sua sponte granting an extension of time for Plaintiff to file her amended complaint, clarifying that if she did not do so this Court would adjudicate the Motion to Dismiss (docket no. 4) her original complaint (in docket no. 9). See Order Granting Extension, docket no. 27. Plaintiff did not file an amended complaint by December 12, 2013, the new deadline I set, so I will now address the Motion to Dismiss Plaintiff's original complaint.

Because the facts and legal contentions are adequately presented in the material before the court, oral argument would not aid the decisional process; accordingly, the motions will be decided without holding a hearing.[2]

For the reasons stated below, this Court will GRANT Defendant's Motion to Dismiss (docket no. 4) Plaintiff's original complaint (in docket no. 9).


From April 2012 through July 2012, Defendant Wells Fargo called Plaintiff's residence repeatedly, "in an attempt to collect a debt that Plaintiff owes to Wells Fargo." Def.'s Mem. in Supp. of Mot. to Dismiss 1. Although Plaintiff's Complaint never specifically alleges the Defendant called to collect a debt, it claims Defendant made a total of 130 calls to Plaintiff's residence over the course of a few months. Sometimes agents of Wells Fargo called "on behalf of Wells Fargo" and actually spoke to Plaintiff, at times contentiously. Pl.'s Compl., State R. 6, 9, at docket no. 9. Otherwise, the calls were "robo' calls, " with "no one on the other end, just the sound of a phone being hung up." Id. at 6. The calls always occurred during daytime hours, from 9 a.m. to 7 p.m., while Plaintiff held private sessions in her home office as "a massage therapist and a Guild Certified Consulting Hypnotist." Id. Plaintiff requested to be removed from the call list, and allegedly on the advice of a Wells Fargo agent, sent a fax notice on May 10, 2012 that she should be contacted "by writing only." Id. The calls continued until at least July 22, 2013. Id. at ¶ 18, State R. 8.

Plaintiff's Complaint alleges harassment in several forms - "by virtue of the sheer volume of calls Plaintiff received;" by robo calls that hung up upon Plaintiff's answer; by Agent Raoul who Plaintiff claims was combative, rude, insistent, and argued with Plaintiff; and by the disruption of Plaintiff's business during daytime hours. Id. at State R. 9. Plaintiff also claims Defendant abused and neglected its professional duties after she informed an agent of the violations and the agent sent her a notice on June 16, 2012 promising Wells Fargo would no longer call Plaintiff. These actions, according to Plaintiff, violated Virginia Code § 18.2-429 (Causing telephone or pager to ring with intent to annoy), 15 U.S.C. § 1692c(c) of the federal Fair Debt Collection Practices Act ("FDCPA") (Communication in connection with debt collection), 15 U.S.C. § 1692d(5) of the FDCPA (Telephone ringing/communication with intent to annoy, abuse, harass), and 47 U.S.C. § 227 of the Telephone Consumer Protection Act ("TCPA") (prohibiting non-emergency, non-consensual automated dialing calls to residences in certain situations). Plaintiff claims damages of $237, 000. Pl.'s Compl. ¶ 18, State R. 15.

Plaintiff acknowledges she is a citizen of the Commonwealth of Virginia, domiciled in Virginia. Pl.'s Mot. to Vacate 2. Defendant cites that fact and asserts it is a "national banking association with its main office located in Sioux Falls, South Dakota, as designated in its articles of association." Def.'s Notice of Removal ¶¶ 3-4. As this Court previously found, it has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332, federal question jurisdiction over this case pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367(a).


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992). In considering a Rule 12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus , 551 U.S. 89, 94 (2007). Legal conclusions in the guise of factual allegations, however, are not entitled to a presumption of truth. Ashcroft v. Iqbal , 129 S.Ct. 1937, 1950-51 (2009). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (citations and quotations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, " id. , with all the allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiff's favor. Chao v. Rivendell Woods, Inc. , 415 F.3d ...

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