United States District Court, E.D. Virginia, Norfolk Division
[Copyrighted Material Omitted]
Plaintiff: Eric Leckie, Esquire, The Law Offices of Eric
Leckie, PLLC, Norfolk, VA; Michael F. Cardoza, Esquire, The
Cardoza Law Corporation, Francisco, CA.
Defendants: Alan D. Wingfield, Esquire, Harrison S. Kelly,
Esquire, Troutman Sanders LLP, Richmond, VA; Andrew B.
Pittman, Esquire, Ethan G. Ostroff, Esquire, Troutman Sanders
LLP, Virginia Beach, VA.
Beach Smith, Chief United States District Judge.
matter comes before the court on the Defendants' Motion
for Judgment on the Pleadings and to Dismiss Plaintiff's
Complaint for Lack of Subject Matter Jurisdiction ("
Motion" ), ECF No. 19, and accompanying Memorandum in
Support, ECF No. 20, filed on June 10, 2015. The Plaintiff
filed her Response to the Motion on June 22, 2015, ECF No.
21, and the Defendants filed a Reply on June 29, 2015. ECF
No. 22. The matter has been fully briefed and is ripe for
review. For the reasons that follow, the Defendants'
Motion is DENIED in part and GRANTED in part.
FACTUAL AND PROCEDURAL BACKGROUND
this matter arises from a motion for judgment on the
pleadings under Rule 12 (c) and to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), the sparse
facts that are alleged in the Complaint are assumed to be
true and viewed in the light most favorable to the
Plaintiff. The Plaintiff alleges, in essence,
that the Defendants harmed her by attempting to collect a
debt that she was not legally obligated to pay.
Plaintiff, Shannon Wynne, is a resident of the Commonwealth
of Virginia. Compl. ¶ 3. At some unspecified time, she
incurred a debt to Branch Banking & Trust Bank (" BB&
T" ) in the form of a personal checking account
overdraft. Id. ¶ 6. The Plaintiff does not
allege that she ever repaid the debt. BB& T attempted to
collect the debt through the legal process, but the Circuit
Court for the City of Virginia Beach found for the Plaintiff
in " this matter on April 24, 2013. Id. ¶
7. It is not clear from the pleadings why the debt was not
collectible through judicial means.
Defendants are both corporations in the business of
collecting debts. Id. ¶ ¶ 4-5. Defendant
I.C. System, Inc. (" I.C. System" ) is a Minnesota
corporation, and Defendant First Point Collection Resources,
Inc. (" First Point" ) is a North Carolina
corporation. Id. After BB& T failed to collect the
debt from the Plaintiff judicially,
the Defendants undertook non-judicial attempts to collect it.
Id. ¶ 8. The Plaintiff has not specified what
non-judicial means the Defendants used to try to collect the
debt, but the Complaint alleges that the Defendants
misrepresented the character, amount, or legal status of her
debt, which caused her " actual and statutory
damages." Id. ¶ ¶ 10, 13, 18, 23. The
Plaintiff has brought claims against both Defendants under 15
U.S.C. § 1692 et seq., the federal Fair Debt Collection
Practices Act (" FDCPA" ); and against Defendant
First Point under N.C. Gen. Stat. § 58-70-90 et seq.,
the North Carolina Collection Agency Act (" NCCAA"
Plaintiff filed her Complaint on March 23, 2015. ECF No. 1.
Thereafter, on May 5, 2015, each Defendant served the
Plaintiff with an Offer of Judgment pursuant to Federal Rule
of Civil Procedure 68. Mem. Supp. at 3. The two Offers of
Judgment were each " for damages in the aggregate amount
of $2,500," as well as costs and reasonable
attorney's fees. Id. The Plaintiff declined the
two Offers of Judgment. Id.
Defendants then filed the instant Motion, pursuant to Federal
Rule of Civil Procedure 12(c), for judgment on the pleadings;
and, in the alternative, under Rule 12(b)(1), to dismiss the
case for lack of subject matter jurisdiction. As a threshold
matter, the court must first address the Defendants'
arguments under Rule 12(b)(1), because " subject-matter
jurisdiction is a necessary prerequisite to any merits
decision by a federal court." Constantine v. Rectors
& Visitors of Geo. Mason Univ., 411 F.3d 474, 480 (4th
Cir. 2005) (citing Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 89-101, 118 S.Ct. 1003, 140
L.Ed.2d 210 (1998)). " Jurisdiction is power to declare
the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause." Steel Co., 523 U.S. at
94 (quoting Ex parte McCardle, 74 U.S. 506, 7 Wall.
506, 514, 19 L.Ed. 264 (1868)). " Thus, a federal court
necessarily acts ultra vires when it considers the merits of
a case over which it lacks subject-matter jurisdiction."
Constantine, 411 F.3d at 480 (citing Steel Co., 523
U.S. at 101).
SUBJECT MATTER JURISDICTION
motion to dismiss pursuant to Rule 12(b) (1), the plaintiff
bears the burden of proving that subject matter jurisdiction
exists by a preponderance of the evidence. United States
ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th
Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982) (" The burden of proving subject
matter jurisdiction on a motion to dismiss is on the
plaintiff, the party asserting jurisdiction." )).
are two ways in which a defendant may present a Rule 12(b)(1)
motion. First, a defendant may attack the complaint on its
face, when the complaint
" fails to allege facts upon which subject matter
jurisdiction can be based." Adams, 697 F.2d at 1219. In
that case, " the facts alleged in the complaint are
assumed to be true and the plaintiff, in effect, is afforded
the same procedural protection as he would receive under a
Rule 12(b)(6) consideration." Id.
a Rule 12(b)(1) motion to dismiss may challenge the existence
of subject matter jurisdiction over the case, apart from the
facts alleged in the pleadings. Pro-Football, Inc. v.
Blackhorse, 62 F.Supp.3d 498, 502 (E.D. Va. 2014)
(citing Williams v. United States50 F.3d 299, 304
(4th Cir. 1995) ; White v. CMA Constr. Co., 947
F.Supp. 231, 233 (E.D. Va. 1996)). " In such a case, the
trial court's 'very power to hear the case' is at
issue." Id. (citing Mortensen v. First Fed.
Sav. & Loan Ass'n,549 F.2d 884, 891 (3d Cir.
1977)). The district court ...