United States District Court, E.D. Virginia, Richmond Division
ROBERT A. NITTI, Plaintiff,
PENN CREDIT CORPORATION, Defendant.
MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION
E. HUDSON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Penn Credit
Corporation's ("Defendant") Motion to Dismiss
Plaintiffs Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) (ECF No. 9), filed on August
31, 2017, and Plaintiffs Motion to Amend Complaint (ECF No.
13), filed on September 13, 2017. The issues have been
briefed and are ripe for review. The Court will dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials presently before the
Court and argument would not aid in the decisional process.
E.D. Va. Local Civ. R. 7(J). For the reasons discussed
herein, Defendant's Motion will be granted; because the
Court finds that it lacks subject matter jurisdiction over
the action, it does not reach Plaintiffs Motion.
is a debt collector that regularly operates in this district.
(Am. Class Action Compl. ("Am. Compl.") ¶ 4,
ECF No. 4.) Defendant has contracted with the Virginia
Department of Taxation to collect Virginia individual income
taxes. (Id. ¶ 6.) Defendant sent Robert A.
Nitti ("Plaintiff) certain "Broken Promise"
letters on or around February 1, 2016. (Id. ¶
10.) The letters stated that they were "an attempt to
collect a debt" and notified Plaintiff that, "It is
important that you either make payment or contact our office
today." (Id. ¶ 11.) The letters
further listed twenty-one debts that Plaintiff allegedly owed
to the Virginia Department of Taxation. (Id.) At
least one of the debts listed was for individual income tax
that had first been assessed more than seven years prior,
despite the fact that the limitations period for the
collection of Virginia state taxes is seven years.
(Id. ¶ 11-12 (citing Va. Code §
to the Complaint, Defendant is aware of the statute of
limitations for individual income tax collection.
(Id. ¶ 14.) Nevertheless, Defendant does not
investigate or have any procedure to verify whether the tax
debts it attempts to collect are time-barred. (Id.
¶ 15.) Defendant merely sends letters to all individuals
identified by the Virginia Department of Taxation as persons
owing tax debts. (Id.) Plaintiff asserts that this
behavior violates the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692e and 1692f. (Id.
¶¶ 26, 32.) Plaintiff, on behalf of himself and all
other similarly situated, seeks a permanent injunction
against Defendant, as well as statutory damages for himself
and each class member and an award of reasonable attorney
fees and costs. (Id. ¶¶ 27, 33.)
Motion to Dismiss, Defendant asks the Court to dismiss the
action for lack of subject matter jurisdiction, or in the
alternative for failure to state a claim. Plaintiff, having
already amended his Complaint once as a matter of right, now
seeks leave to amend in order to better articulate standing
and to restate his claim.
motion to dismiss for lack of subject matter jurisdiction is
governed by Federal Rule of Civil Procedure 12(b)(1). As
recognized by the Fourth Circuit, "[t]here are two
critically different ways in which to present a motion to
dismiss for lack of subject matter jurisdiction" under
Rule 12(b)(1). Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). First, a defendant may challenge
jurisdiction facially and "contend 'that a complaint
simply fails to allege facts upon which subject matter
jurisdiction can be based.'" Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting
Bain, 697 F.2d at 1219). "In that event, all
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." Bain, 697 F.2d at 1219.
a defendant may challenge jurisdiction factually and
"contend ... 'that the jurisdictional allegations of
the complaint [are] not true.'" Kerns, 585
F.3d at 192 (alteration in original) (quoting Bain,
697 F.2d at 1219). When-and only when-a defendant takes this
latter position, "'[a] trial court may ... go beyond
the allegations of the complaint and in an evidentiary
hearing determine if there are facts to support the
jurisdictional allegations, ' without converting the
motion to a summary judgment proceeding." Id.
(quoting Bain, 697 F.2d at 1219).
case, Defendant brings a facial challenge to standing.
Accordingly, the Court's analysis is confined to the
facts as pled in the Amended Complaint.
Supreme Court has established that the "irreducible
constitutional minimum" of standing includes three
elements: (1) an injury-in-fact; (2) a causal connection
between the injury and the alleged misconduct; and (3) a
likelihood that the injury will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992) (citations omitted). "Where, as here,
a case is at the pleading stage, the plaintiff must
'clearly ... allege facts demonstrating' each
element." Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (as revised May 24, 2016) (quoting
Warth v. Seldin, 422 U.S. 518 (1975)).
order to show injury-in-fact at the pleading stage, a
plaintiff must allege "'an invasion of a legally
protected interest' that is 'concrete and
particularized' and 'actual and imminent, not
conjectural or hypothetical.'" Id. at 1548
(quoting Lujan, 504 U.S. at 560). To satisfy the
concreteness requirement, a plaintiff must allege an
injury-either tangible or intangible-that actually exists.
Id. at 1548-49. The Supreme Court has made clear
that "Article III standing requires a concrete injury
even in the context of a statutory violation."
Id. at 1549. However, in certain limited
circumstances the statutory violation ...