Mazza v. Verizon Washington, Dc, Inc. , 852 F. Supp. 2d 28 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
ANTHONY MAZZA, )
)
Plaintiff, )
) Civil Action No. 11-719 (EGS)
v. )
)
VERIZON WASHINGTON DC, INC., )
et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Anthony Mazza, proceeding pro se, brings this
case against defendants Verizon Washington D.C., Inc. (“VZDC”),
Verizon Communications, Verizon Wireless, and AFNI, Inc.
(“AFNI”), alleging violations of the Fair Credit Reporting Act
(“FCRA”) and the Fair Debt Collection Practices Act (“FDCPA”),
as well as two common law claims. Pending before the Court is
defendants’ Motion to Dismiss the Complaint pursuant to Rules
12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure.
Upon consideration of the Motion to Dismiss, the Opposition and
Reply thereto, the relevant case law, the entire record in this
1
case, and for the reasons stated below, the Court hereby GRANTS
IN PART AND DENIES IN PART defendants’ Motion to Dismiss.1
I. BACKGROUND
Mazza is a resident of Washington, D.C. and a former
customer of defendants Verizon Wireless and VZDC. Compl. ¶¶ 3,
13. Mazza had a “bundled services” plan with Verizon Wireless
and VZDC, whereby Verizon Wireless and VZDC supplied him with
home telephone, cellular phone, and residential internet
services. Compl. ¶¶ 13-14. Mazza alleges that he terminated
this plan on April 25, 2007. Compl. ¶ 14. On or about that
same date, Mazza was notified of an outstanding bill due and
owing Verizon Wireless in the amount of $1,006.57. Compl. ¶ 17.
On May 1, 2007, Mazza caused payment to Verizon Wireless via
personal check in the amount of $1,006.57. Compl. ¶ 18. Mazza
alleges that Verizon Wireless cashed the personal check on May
8, 2007. Compl. ¶ 19 (citing Ex. A). On or about that same
date, Mazza received a bill from VZDC in the amount of
1
At the end of his Opposition to the Motion to Dismiss,
Mazza includes an argument that, rather than dismiss this case,
the Court should permit Mazza to amend his Complaint, if
necessary. See Pl.’s Opp’n at 23-25. However, because he has
not filed a motion for leave to amend the Complaint, nor
attached a proposed amended pleading, pursuant to Federal Rule
of Civil Procedure 15(a)(2) and Local Civil Rule 7(i), the Court
cannot construe this argument as a proper motion for leave to
amend. Having concluded below that Mazza can maintain certain
of his claims under the FCRA and the FDCPA, the Court finds that
it is not necessary to direct Mazza to file an amended pleading.
2
$1,138.45. Compl. ¶ 20. Mazza believed that the difference
between the bill and his recent remittance ($131.88) was the
result of excessive charges and contacted the Customer Service
department of VZDC. Compl. ¶ 21. However, Mazza alleges that
VZDC informed him that the $131.88 amount was for a prior bill,
which had already been paid, but, according to the VZDC
representative, had not yet been processed by the cancellation
team, which was “a common problem.” Compl. ¶ 22.
Between July and September 2007, Mazza alleges that he
responded to several VZDC inquiries—both verbally and in
writing—regarding a “past due amount owed” to them. Compl. ¶
23. Thereafter, between June 2008 and June 2009, Mazza received
several requests—verbally and in writing—from defendant AFNI,
demanding payment of $1,138.45 due their client, VZDC. Compl. ¶
24. Mazza alleges that, on or about June 2010, he received from
defendant AFNI a “Settlement Offer,” in which AFNI offered to
accept payment of “$569.23, half the current amount due” on his
“account with AFNI.” Compl. ¶¶ 25-26 (citing Ex. B). Mazza
alleges that he called AFNI to ascertain what was meant by his
“account with AFNI,” and he was informed that a collection
notice had been reported to Consumer Credit Bureaus. Compl. ¶
27.
According to Mazza, he made multiple inquiries of all of
the defendants—both verbally and in writing—denying owing
3
monies, requesting inquiry into the amounts remitted and cashed
by defendant Verizon Wireless, and demanding the reversal of
negative credit reporting. However, defendant Verizon Wireless
would only confirm receipt of payment, but insisted that the
credit dispute resolution was within the province of defendant
Verizon Communications; defendant VZDC disputed receipt of
payment and continually referred Mazza to defendant AFNI;
defendant AFNI pledged on several occasions to investigate, but
continued to make demands for payment; and defendant Verizon
Communications continually denied culpability, and referred
Mazza to customer services representatives of the other
defendants. Compl. ¶¶ 28-32. In July 2010, Mazza called
defendant Verizon Communications; after several directed
connections, Mazza was informed that the billing issue was a
result of his having paid Verizon Wireless, instead of VZDC.
Compl. ¶ 33. Mazza alleges that defendant Verizon
Communications pledged to address the matter promptly. Id. In
August 2010, Mazza contacted defendant Verizon Wireless to
inform it that it had “effectively converted” his payment;
Verizon Wireless pledged to resolve the matter. Compl. ¶ 34.
Mazza alleges that, to date, there has been no resolution, and
he has suffered economic harm due to the severity of the
negative consumer credit reporting. Compl. ¶ 35.
4
Mazza, proceeding pro se,2 filed his Complaint in this
action on April 13, 2011. Defendants have filed a Motion to
Dismiss the Complaint pursuant to Rules 12(b)(1), (2), and (6)
of the Federal Rules of Civil Procedure. That motion is now
ripe for determination by the Court.
II. LEGAL STANDARDS
A. Rule 12(b)(2)
On a motion to dismiss pursuant to Rule 12(b)(2), the
plaintiff bears the burden of making a prima facie showing that
the court has personal jurisdiction over each defendant. See
Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir.
1990); First Chi. Int’l v. United Exch. Co., Ltd., 836 F.2d
1375, 1378 (D.C. Cir. 1988). The plaintiff, however, cannot
rest on bare allegations or conclusory statements and “must
allege specific facts connecting [each] defendant with the
forum.” Second Amendment Found. v. U.S. Conference of Mayors,
2
In their reply brief, defendants state that, “[d]espite
Plaintiff’s pro se status, he is versed in the law. Plaintiff
is a graduate of New York University Law School and a member of
the bars of New York, New York’s Southern Federal District
Court, New York’s Eastern Federal District Court, and the US
Supreme Court.” Defs.’ Reply to Pl.’s Opp’n to Defs.’ Mot. to
Dismiss (“Defs.’ Reply”) at 1 n.1. However, defendants offer no
support for this assertion, and there is no indication of
Mazza’s legal training in the record of this case. A simple
internet search reveals several individuals by the name of
Anthony Mazza located in the Washington, D.C. metro area.
Therefore, the Court will not credit this unsubstantiated
assertion and will afford Mazza the full leniency due a pro se
litigant.
5
274 F.3d 521, 524 (D.C. Cir. 2001) (internal quotation omitted).
“To make such a showing, the plaintiff is not required to adduce
evidence that meets the standards of admissibility reserved for
summary judgment and trial; rather [he] may rest [his] arguments
on the pleadings, ‘bolstered by such affidavits and other
written materials as [he] can otherwise obtain.’” Urban Inst.
v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting
Mwani v. Bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005)).
When determining whether personal jurisdiction exists over
a defendant, the court need not treat all of a plaintiff’s
allegations as true. Instead, the court “may receive and weigh
affidavits and any other relevant matter to assist it in
determining the jurisdictional facts.” Buesgens v. Brown, 567
F. Supp. 2d 26, 31 (D.D.C. 2008) (internal quotation omitted).
Any factual discrepancies with regard to the existence of
personal jurisdiction, however, must be resolved in favor of the
plaintiff. See Crane, 894 F.2d at 456. Although complaints
filed by pro se plaintiffs are to be liberally construed, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se plaintiffs
“are not freed from the requirement to plead an adequate
jurisdictional basis for their claims,” Kurtz v. United States,
779 F. Supp. 2d 50, 51 (D.D.C. 2011) (internal quotation
omitted).
6
B. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citations omitted). “‘[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint[,]’”
Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.
Cir. 2009) (quoting Erickson, 551 U.S. at 94), and grant the
plaintiff “the benefit of all inferences that can be derived
from the facts alleged,” Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). A court need not, however, “accept
inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint. Nor must the
court accept legal conclusions cast in the form of factual
allegations.” Id. In addition, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 1950.
7
“‘[A] pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Even a pro se complainant,
however, must plead “‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’”
Atherton, 567 F.3d at 681-82 (quoting Iqbal, 129 S. Ct. at
1950).
III. ANALYSIS
A. FCRA Claims
Mazza claims that defendants VZDC and AFNI violated the
FCRA, 15 U.S.C. § 1681 et seq., by reporting to consumer
reporting agencies (“CRAs”) false, erroneous, and negative
credit information that adversely affected him. Compl. ¶¶ 51-
55. Defendants argue that no private right of action exists
under the FCRA. Defendants additionally argue that Mazza has
failed to state a claim upon which relief can be granted under
the FCRA. See Defs.’ Mem. of Points and Authorities in Supp. of
Mot. to Dismiss (“Defs.’ Mem.”) at 4-5, 7.
Section 1681s-2 of the FCRA sets forth “[r]esponsibilities
of furnishers of information3 to consumer reporting agencies,”
3
“The most common . . . furnishers of information are
credit card issuers, auto dealers, department and grocery
stores, lenders, utilities, insurers, collection agencies, and
government agencies.” Gorman v. Wolpoff & Abramson, LLP, 584
8
delineating two categories of responsibilities. Subsection (a)
details the duty “to provide accurate information,” and states
that a furnisher of information “shall not furnish any
information relating to a consumer to any [CRA] if the person
knows or has reasonable cause to believe that the information is
inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A). In addition, a
furnisher of information shall not furnish such information to a
CRA if it “has been notified by the consumer . . . that specific
information is inaccurate . . . and the information is, in fact,
inaccurate.” Id. § 1681s-2(a)(1)(B). Subsection (b) provides
that once a furnisher of information receives notice of “a
dispute with regard to the completeness or accuracy of any
information provided by a person to a [CRA],” it must conduct an
investigation into the disputed information and report the
results of that investigation to the CRA. Id. § 1681s-2(b)(1).
The FCRA imposes civil liability on any person who
willfully or negligently fails to comply with any of the Act’s
requirements. See 15 U.S.C. § 1681n (creating civil liability
for willful noncompliance with any portion of the Act); id. §
1681o (creating civil liability for negligent noncompliance with
any portion of the Act). The Act, however, expressly excludes
F.3d 1147, 1154 n.7 (9th Cir. 2009) (citing H.R. Rep. No. 108-
263, at 24 (2003)). The Court thus construes plaintiff’s
Complaint to identify both VZDC and AFNI as furnishers of
information.
9
Section 1681s-2(a) from the purview of Sections 1681n and 1681o,
instead limiting enforcement of Subsection (a) exclusively to
the federal and state agencies and officials identified in
Section 1681s. See id. §§ 1681s-2(c), (d). Section 1681s-2(a)
thus does not provide for a private right of action, that is,
enforcement by an individual. See Edmond v. Am. Educ. Servs.,
No. 10-0578 (JDB), 2010 U.S. Dist. LEXIS 114834, *9-10 (D.D.C.
Oct. 28, 2010); see also Haynes v. Navy Fed. Credit Union, No.
11-00614 (CKK), 2011 U.S. Dist. LEXIS 135235, *22-23 (D.D.C.
Nov. 23, 2011). Therefore, Mazza cannot bring a claim against
defendants for a violation of Section 1681s-2(a).
However, as courts in this District and multiple Circuits
have held, the FCRA does provide a private right of action for
violations under Section 1681s-2(b). See Haynes, 2011 U.S.
Dist. LEXIS 135235, at *24 (citing SimmsParris v. Countrywide
Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011); Gorman, 584 F.3d
at 1154); see also Chiang v. Verizon New Eng., Inc., 595 F.3d
26, 36 (1st Cir. 2010); Saunders v. Branch Banking & Trust Co.,
526 F.3d 142, 149 (4th Cir. 2008); Westra v. Credit Control of
Pinellas, 409 F.3d 825, 826-27 (7th Cir. 2005).4 A plaintiff
4
Defendants argue that the Court should follow Carney v.
Experian Information Solutions, Inc., 57 F. Supp. 2d 496 (W.D.
Tenn. 1999), which held that the duties described in Section
1681s-2(b) “appear to exist solely for the benefit of consumer
reporting agencies,” and a furnisher of information’s duty under
§ 1681s-2(b) “is owed only to the consumer reporting agency not
10
cannot establish a claim under this section, however, merely by
showing that he notified the furnisher of information of the
dispute. Rather, to succeed on a claim under Section 1681s-
2(b), Mazza must show that (1) he notified the CRA directly
regarding the disputed credit information, and (2) that the CRA
in turn provided notice to the furnisher of Mazza’s credit
information, which was then obligated to conduct an
investigation into the dispute. See 15 U.S.C. § 1681i; see also
Pouth Phrasavang v. Deutsche Bank, 656 F. Supp. 2d 196, 203-04
(D.D.C. 2009); Young v. Equifax Credit Info. Servs., Inc., 294
F.3d 631, 639-40 (5th Cir. 2002) (holding that plaintiff must
show that defendants received notice from a CRA, as opposed to
plaintiff alone, that the credit information was disputed);
Gorman, 584 F.3d at 1154.
In his Complaint, Mazza alleges that he “made multiple
inquiries of Defendants Verizon Communications, [VZDC], Verizon
to the consumer.” Id. at 502. As such, the court in Carney
concluded that a consumer cannot state a claim under § 1681s-
2(b). Id. The Court finds this conclusion unpersuasive and
contrary to “the vast majority of courts to have considered this
issue [and held] that a plain reading of the FCRA’s text
indicates that a private cause of action exists for individuals
seeking remedies for furnishers’ violations of § 1681s-2(b).”
Chiang, 595 F.3d at 36 (collecting cases). Defendants also
argue that the Court should follow the opinion of another judge
in this District in Edmond v. American Education Services, No.
10-0578, 2010 U.S. Dist. LEXIS 114834 (D.D.C. Oct. 28, 2010)
(Bates, J.). However, that opinion addressed only Subsection
(a) of the FCRA, not Subsection (b), and it is thus not relevant
to the Court’s analysis here.
11
Wireless, and [AFNI]—both verbally and in writing, denying owing
monies, requesting inquiry into the amounts remitted and cashed
by Defendant Verizon Wireless, and demanding the reversal of
negative credit reporting.” Compl. ¶ 28. Mazza fails to
allege, however, that he notified any CRA of the dispute, that
the CRA in turn notified defendants, so as to trigger any duty
under Section 1681s-2(b), and that defendants either failed to
undertake the required investigation or did so negligently or
willfully. See Pouth Phrasavang, 656 F. Supp. at 203-04. In
Mazza’s Opposition, however, he includes the following new
allegations: “Plaintiff alleges: i) CRA notification of a
dispute; ii) notification to Defendants; and, iii) actively
seeks discovery in the matter,” to determine whether there were
actual inaccuracies that defendants’ reasonable investigation
would have been able to discover. Pl.’s Opp’n to Defs.’ Mot. to
Dismiss (“Pl.’s Opp’n”) at 20. Moreover, in the context of his
FDCPA claims, Mazza asserts that he “disputed the debt with all
Credit Bureaus and all Defendants. The Credit Bureaus indicated
that the dispute had been researched and affirmed by the
Creditors, AFNI [] and [VZDC].” Id. at 22-23. These
allegations relate to Mazza’s claims under the FCRA. Because
Mazza is proceeding pro se, the Court properly construes his
Complaint to include the arguments raised in his Opposition.
See Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir.
12
1999) (holding that the district court abused its discretion in
failing to consider a pro se plaintiff’s complaint in light of
his response to the defendant’s motion to dismiss); Fennell v.
AARP, 770 F. Supp. 2d 118, 121, 125 (D.D.C. 2011). Having read
all of Mazza’s filings together, the Court finds that Mazza has
pled sufficient facts to set forth a claim for relief under
Section 1681s-2(b).
Therefore, the Court hereby DENIES defendants’ Motion to
Dismiss as to claims raised under Section 1681s-2(b).
B. FDCPA Claims
Mazza claims that defendants VZDC and AFNI violated the
FDCPA, 15 U.S.C. § 1692, by initiating “a pattern of abusive
collection strategies [] against [him], including repeated
telephone calls and written requests for payment, after [he] had
affirmatively denied owing the monies claimed and furnished
proof of payment.” Compl. ¶¶ 57-60.
The FDCPA protects (1) consumers (2) who have been
subjected to abusive, deceptive or unfair debt collection
practices (3) by a debt collector (4) in an attempt to collect a
debt. Muldrow v. EMC Mortg. Corp., 657 F. Supp. 2d 171, 174-75
(D.D.C. 2009) (citing Piper v. Portnoff, 396 F.3d 227, 232 (3d
Cir. 2005)); see also 15 U.S.C. § 1692(a). At issue in the
instant action are Sections 1692d and 1692e of the FDCPA.
Section 1692d of the FDCPA provides that a debt collector “may
13
not engage in any conduct the natural consequence of which is to
harass, oppress, or abuse any person in connection with the
collection of a debt.” 15 U.S.C. § 1692d. Such conduct
includes, without limitation:
(1) The use or threat of use of violence or other
criminal means to harm the physical person,
reputation, or property of any person.
(2) The use of obscene or profane language or
language the natural consequence of which is to
abuse the hearer or reader.
(3) The publication of a list of consumers who
allegedly refuse to pay debts . . . .
(4) The advertisement for sale of any debt to coerce
payment of the debt.
(5) Causing a telephone to ring or engaging any
person in telephone conversation repeatedly or
continuously with intent to annoy, abuse, or
harass any person at the called number.
(6) Except as provided in [15 U.S.C. § 1692b], the
placement of telephone calls without meaningful
disclosure of the caller’s identity.
Id. In addition, Section 1692e prohibits a debt collector from
using “any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” Id. §
1692e. Such conduct includes “the false representation of . . .
the character, amount, or legal status of any debt.” Id. §
1692e(2). The test for determining potential violations of the
FDCPA is an objective standard based on the “least sophisticated
consumer.” Maguire v. Citicorp Retail Servs., 147 F.3d 232, 236
(2d Cir. 1998).
In their Motion to Dismiss, defendants argue that Mazza’s
claims under the FDCPA are time-barred, that VZDC’s collection
14
actions are not subject to the FDCPA, and alternatively, that
Mazza has failed to state a claim for violation of the FDCPA.
The Court addresses each argument in turn.
1. Timeliness of Plaintiff’s Claims under the FDCPA
The FDCPA provides that an action to enforce liability
under the Act may be brought “within one year from the date on
which the violation occurs.” 15 U.S.C. § 1692k(d). Defendants
argue that, although Mazza’s Complaint “does not state
concretely the dates on which AFNI’s and VZDC’s alleged
violations of the FDCPA occurred,” it appears that he “last
communicated with AFNI ‘[o]n or about June 2008 through June
2009’ and with VZDC [in] 2007.” Defs.’ Mem. at 6 (quoting
Compl. ¶¶ 23-24). Thus, defendants argue that because Mazza did
not file his Complaint until April 13, 2011, his claims under
the FDCPA are time-barred. However, a plain reading of the
Complaint belies defendants’ argument. Construing the Complaint
in the light most favorable to Mazza, the Court finds that Mazza
has alleged violations of the FDCPA occurring in June 2010 and
for some time thereafter, well within one year of the filing of
the Complaint. See Compl. ¶¶ 25-34; see also Pl.’s Opp’n at 22-
23. Specifically, Mazza claims that, “[o]n or about June 2010,”
he received a “Settlement Offer” from AFNI, which stated that
AFNI would accept payment of half of the amount it alleged
plaintiff owed to its client, VZDC. Compl. ¶ 25. Mazza alleges
15
that subsequently, he made multiple inquiries of defendants AFNI
and VZDC denying the amount owed, requesting inquiry into the
dispute, and demanding the reversal of negative credit
reporting, to no avail. Compl. ¶¶ 28-34. In addition, Mazza
alleges that defendant AFNI “continued to make demands for
payment.” Compl. ¶ 31. Therefore, the Court finds that Mazza’s
FDCPA claims are not time-barred.5
2. Exemption of VZDC from the FDCPA
Defendants argue that VZDC’s collection actions are not
subject to the FDCPA because a creditor’s actions to collect its
own debts are specifically exempted. Defs.’ Mem. at 6 (citing
15 U.S.C. § 1692a; Sterling Mirror of Maryland, Inc. v. Gordon,
619 A.2d 64 (D.C. 1993)).
5
In their Reply, defendants argue that “notice to Plaintiff
of the debt being reported to a [CRA] is not, nor is it alleged
by Plaintiff in his Complaint to be, a violation of the FDCPA.”
Defs.’ Reply at 4-5 (citing 15 U.S.C. § 1692d). However, the
Complaint alleges actions taken by the defendants after June
2010, other than notice of the debt being reported to a CRA.
Moreover, the Court is not to dismiss a case on statute of
limitations grounds unless it is clear from the Complaint that
it is conclusively time-barred. See Firestone v. Firestone, 76
F.3d 1205, 1209 (D.C. Cir. 1996); Turner v. Afro-American
Newspaper Co., 572 F. Supp. 2d 71, 72 (D.D.C. 2008) (“A court
should grant a pre-discovery motion to dismiss on limitations
grounds only if the complaint on its face is conclusively time-
barred, and the parties do not dispute when the limitations
period began.” (internal citation and quotation marks omitted)).
Here, it is not clear from the Complaint that Mazza could allege
no violations of the FDCPA based upon the conduct he alleges
occurred during the summer of 2010. The Court therefore cannot
find that the FDCPA claims are conclusively time-barred.
16
The FDCPA defines a “debt collector” as:
[A]ny person . . . in any business the principal
purpose of which is the collection of any debts, or
who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted
to be owed or due another. . . . [T]he term includes
any creditor who, in the process of collecting his own
debts, uses any name other than his own which would
indicate that a third person is collecting or
attempting to collect such debts.
15 U.S.C. § 1692a(6). However, the term does not include “any
officer or employee of a creditor while, in the name of the
creditor, collecting debts for such creditor.” Id. §
1692a(6)(A). The Act defines a creditor as “any person who
offers or extends credit creating a debt or to whom a debt is
owed . . . .” Id. § 1692a(4). Thus, the FDCPA is not
applicable to creditors who are in the business of collecting
their own debts. See Gore v. First Union Nat’l Bank, No. 01-
2166 (CKK), 2002 U.S. Dist. LEXIS 14396, *5-7 (D.D.C. July 29,
2002); Sterling, 619 A.2d at 66 (“[Section 1692a(6)] does not
include actions of a creditor taken in an effort to collect its
own debts directly from its debtors.”). The Complaint does not
allege—nor could it—that the principal purpose of VZDC’s
business is debt collection, nor does it allege that VZDC used
any other name and/or alias in an attempt to collect the debts
in question. Additionally, Mazza concedes that VZDC was
17
attempting to collect a debt owed to it as a creditor. See
Pl.’s Opp’n at 23.6
Accordingly, the Court will GRANT defendants’ Motion to
Dismiss the FDCPA claims as to VZDC.
3. Failure to State a Claim for a Violation of the
FDCPA
Finally, defendants argue that Mazza has failed to state a
claim for violation of the FDCPA pursuant to Federal Rule of
Civil Procedure 12(b)(6).7
As noted above, Section 1692d of the FDCPA provides that a
debt collector “may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person
in connection with the collection of a debt.” 15 U.S.C. §
1692d. Section 1692e prohibits a debt collector from using “any
6
As discussed below, in his Opposition, Mazza characterizes
his FDCPA claim as one for “false representation of the
character, amount, or legal status of any debt.” Pl.’s Opp’n at
22 (citing 15 U.S.C. § 1692e(2)(A)). Mazza goes on to argue
that, “[p]rior to June 2010, Defendant [VZDC] may have
successfully availed itself of the protections afforded under
FDCPA regarding creditors taking efforts to collect their own
debts directly from their debtors. But since 2010, long after
the alleged debt had been sold or transferred to AFNI, Inc.,
[VZDC] continued to make ‘false representations regarding the
character and amount’ owed by the Plaintiff.” Pl.’s Opp’n at 23
(internal citation omitted). This argument is misplaced.
Section 1692e expressly applies only to “debt collectors,” and
therefore does not apply to VZDC.
7
Because the Court concludes above that plaintiff cannot
bring his FDCPA claims against VZDC, the Court analyzes whether
or not plaintiff has stated a claim for a violation of the FDCPA
against defendant AFNI only.
18
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” Id. § 1692e.
Mazza alleges that defendant AFNI initiated “a pattern of
abusive collection strategies against [him], including repeated
telephone calls and written requests for payment, after [he] had
affirmatively denied owing the monies claimed and furnished
proof of payment.” Compl. ¶ 59. For example, Mazza alleges
that from about June 2008 to June 2009, he received several
requests for payment—both verbally and in writing—from AFNI for
a past due amount owed to AFNI’s client, VZDC. Compl. ¶ 24. In
addition, Mazza alleges that he received from AFNI a “Settlement
Offer” agreeing to accept payment of half of the “current amount
due.” Compl. ¶ 25 (citation omitted). Finally, Mazza alleges
that he made multiple inquiries of AFNI requesting inquiry into
the dispute and demanding reversal of the negative credit
reporting. Although AFNI pledged to investigate the dispute, it
“continue[d] to make demands for payment.” Compl. ¶¶ 28, 31.
Construed liberally, these allegations are sufficient to state a
claim for violation of Section 1692d.8
8
Indeed, defendants offer no arguments to dispute the
sufficiency of Mazza’s allegations. Instead, defendants merely
set forth the standard for a motion to dismiss pursuant to Rule
12(b)(6) and state conclusively that “[w]hen viewed against this
standard Plaintiff’s . . . FDCPA claims are properly dismissed
for failure to state a claim.” Defs.’ Mem. at 7. Defendants do
not address this argument whatsoever in their Reply.
19
In his Opposition, Mazza additionally argues that his claim
regarding defendants’ FDCPA violations “is the prohibition in §
1692e against ‘any’ false or deceptive representations or means
made in connection with the collection of a debt [including] . .
. the ‘false representation of the character, amount, or legal
status of any debt.’” Pl.’s Opp’n at 22 (quoting 15 U.S.C. §
1692e(2)(A)). Even construing Mazza’s filings liberally,
however, because Mazza does not identify any false or misleading
statements by AFNI, the Court cannot discern a basis for a claim
under Section 1692e.
Accordingly, the Court will DENY defendants’ Motion to
Dismiss with respect to Mazza’s claims under Section 1692d.9
C. Common Law Claims
In this Circuit, “[c]omplaints may [] be dismissed, sua
sponte . . . under Rule 12(b)(6) whenever the plaintiff cannot
possibly win relief.” Best v. Kelly, 39 F.3d 328, 331 (D.C.
Cir. 1994) (internal citation and quotation marks omitted); see
9
Defendants argue that the Complaint must also be dismissed
for lack of subject-matter jurisdiction because there is not
complete diversity among the parties. Defs.’ Mem. at 7-8. This
argument presupposes that the Court would conclude that Mazza
had failed to state a claim for relief under the FCRA and the
FDCPA. However, because the Court finds that Mazza can maintain
federal claims against defendants under both the FCRA and the
FDCPA, the Court has federal question jurisdiction pursuant to
28 U.S.C. § 1331 and may exercise supplemental jurisdiction over
any common law claims in the Complaint that form part of the
same case or controversy. See 28 U.S.C. § 1367(a). Therefore,
the Court need not determine whether it would alternatively have
diversity jurisdiction over this action.
20
also Moore v. Motz, 437 F. Supp. 2d 88, 94 (D.D.C. 2006)
(dismissing sua sponte the plaintiff’s claim for “failure to
fulfill a campaign promise,” as such a cause of action does not
exist). Here, Mazza has alleged two common law claims for
“intentional tort” and “ongoing pattern and practice of bad
faith dealing.” Compl. ¶¶ 38-49. Defendants inexplicably do
not dispute the merits of Mazza’s common law claims. However,
finding itself unable to discern any basis for a claim of
“intentional tort” or an “ongoing pattern and practice of bad
faith dealing,” the Court will exercise its discretion to
dismiss these claims, sua sponte, pursuant to Rule 12(b)(6).
Indeed, Mazza has not pled a sufficient factual basis to enable
the Court to infer “more than the mere possibility of
misconduct.” Atherton, 567 F.3d at 682 (citing Iqbal, 129 S.
Ct. at 1950). Accordingly, the common law claims contained in
Counts I and II of the Complaint are hereby DISMISSED WITHOUT
PREJUDICE.
D. Personal Jurisdiction Over Verizon Communications
Finally, defendants argue that the Court should dismiss
defendant Verizon Communications because Mazza has not alleged
any basis for personal jurisdiction over Verizon Communications.
See Defs.’ Mem. at 8-9. According to defendants, Verizon
Communications has no contacts in the District of Columbia:
“[a]t all times pertinent to Plaintiff’s suit, Verizon
21
Communications did not and currently does not operate or do
business in the District of Columbia. Specifically, Verizon
Communications is not now, nor has [it] ever been engaged in the
provision of telecommunications services in the District of
Columbia, nor the collection of debts associated with such
services.” Id.; see also Defs.’ Reply, Ex. 1, Motion of
Defendant Verizon Communications Inc. to Set Aside Default and
Dismiss Statement of Claim, Ex. C, Declaration of Alexander
Shekhter (“Shekhter Decl.”), at ¶ 6 (“Verizon Communications
Inc. does not have offices in the District of Columbia, does not
own or lease any real property in the District of Columbia, and
does not advertise, solicit or conduct business in the District
of Columbia.”).
As noted above, it is plaintiff’s burden to make a prima
facie showing of personal jurisdiction over the defendants. See
First Chi. Int’l, 836 F.2d at 1378. In the D.C. Circuit,
personal jurisdiction “must be determined by reference to
District of Columbia law.” United States v. Ferrara, 54 F.3d
825, 828 (D.C. Cir. 1995). To determine whether the court may
exercise so called “specific” jurisdiction over a non-resident
defendant,10 the court engages in a two-part inquiry. First, the
10
It is undisputed that Verizon Communications is a
Delaware company with its principal place of business in New
York. Compl. ¶ 6. Therefore, Verizon Communications does not
fall within the scope of D.C. Code Section 13-422. See D.C.
22
court must determine whether there is a basis for personal
jurisdiction under the District of Columbia’s long-arm statute,
D.C. Code § 13-423. See GTE New Media Servs., Inc. v. BellSouth
Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). The long-arm
statute provides that a District of Columbia court may exercise
jurisdiction over any person who, acting directly or through an
agent,11 engages in the following conduct:
(1) transacting any business in the District of
Columbia;
(2) contracting to supply services in the District of
Columbia;
(3) causing tortious injury in the District of
Columbia by an act or omission in the District of
Columbia;
(4) causing tortious injury in the District of
Columbia by an act or omission outside the
District of Columbia if he regularly does or
solicits business, engages in any other
persistent course of conduct, or derives
substantial revenue from goods used or consumed,
or services rendered, in the District of
Columbia;
(5) having an interest in, using, or possessing real
property in the District of Columbia[.]
D.C. Code § 13-423(a). Where jurisdiction is based solely on
D.C. Code Section 13-423, “only a claim for relief arising from
acts enumerated in this section may be asserted against [the
Code § 13-422 (“A District of Columbia court may exercise
personal jurisdiction over a person domiciled in, organized
under the laws of, or maintaining his or its principal place of
business in, the District of Columbia as to any claim for
relief.”).
11
Mazza nowhere alleges that either VZDC or Verizon
Wireless is an agent of Verizon Communications.
23
defendants].” D.C. Code § 13-423(b) (emphasis added). Second,
a court must determine whether the exercise of personal
jurisdiction comports with the requirements of due process. See
GTE, 199 F.3d at 1347. This portion of the analysis turns on
whether a defendant’s “minimum contacts” with the District of
Columbia establish that “the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (internal citation and quotation marks omitted).
The Court finds that Mazza has not met his burden of
establishing a basis for specific jurisdiction under any of the
relevant categories set forth in the long-arm statute. Mazza
alleges that Verizon Communications “is responsible for
establishing revenue targets, operational goals and guidelines,
customer acquisition and support strategies for [defendants VZDC
and Verizon Wireless] . . . [and] is responsible for the
infrastructure and client databases for [defendants VZDC and
Verizon Wireless].” Compl. ¶¶ 7-10. With respect to the
instant claims, Mazza states only that he made multiple
inquiries of all of the defendants, including Verizon
Communications, in an effort to dispute the charges owed and
demand reversal of any negative credit reporting. Compl. ¶ 28.
According to Mazza, defendant Verizon Communications
“continually denied culpability,” but later “pledged to address
24
the matter promptly” and did not resolve it. Compl. ¶¶ 32-33,
35. The Court finds that these allegations do not demonstrate
that Verizon Communications directed any activity into the
District of Columbia related to Mazza’s claims. Because the
Court finds that Mazza cannot establish specific jurisdiction
under the long-arm statute, the Court need not reach the
question of whether exercising jurisdiction over Verizon
Communications would comport with due process.
In his Opposition, Mazza argues that, because Verizon
Communications is the holding company for VZDC and Verizon
Wireless, which do not contest jurisdiction, the business
contacts of VZDC and Verizon Wireless should be imputed to
Verizon Communications in order to subject it to jurisdiction.12
Pl.’s Opp’n at 11-13. However, because Mazza has not met his
burden of demonstrating that Verizon Communications is the alter
ego of either VZDC or Verizon Wireless, the Court cannot
exercise personal jurisdiction over Verizon Communications on
that basis either.
Ordinarily, a corporation’s contacts with a forum may not
be attributed to affiliated corporations. See Material Supply
12
Mazza also contends that Verizon Communications is
subject to personal jurisdiction because it is a party to
lawsuits before this Court. See Pl.’s Opp’n at 11. Mazza
offers no support for this assertion and has not demonstrated
that it is a proper basis for this Court’s exercise of personal
jurisdiction over Verizon Communications.
25
Int’l, Inc. v. Sunmatch Indus. Co., 62 F. Supp. 2d 13, 19
(D.D.C. 1999). An exception exists, however, “where affiliated
parties are ‘alter egos’ of a corporation over which the Court
has personal jurisdiction; in that case the corporation’s
contacts may be attributed to the affiliated party for
jurisdictional purposes.” Diamond Chem. Co. v. Atofina Chems.,
Inc., 268 F. Supp. 2d 1, 7 (D.D.C. 2003) (internal quotation
omitted). Courts will impute personal jurisdiction under an
alter ego theory in cases where the parent company “so dominated
the [subsidiary] corporation as to negate its separate
personality.” Material Supply, 62 F. Supp. 2d at 20 (internal
quotation omitted). The alter ego test thus analyzes “(1)
whether there is such unity of interest and ownership that the
separate personalities of [the companies] no longer exist; and
(2) whether an inequitable result will follow if the court
treats [the subsidiary’s] allegedly wrongful acts as those of
[the subsidiary] alone.” Id. (quoting Smith v. Washington
Sheraton Corp., 135 F.3d 779, 786 (D.C. Cir. 1998)). The first
prong requires a showing that Verizon Communications’ control
over VZDC and/or Verizon Wireless is “active and substantial.”
Id. (citation omitted). To assess whether there is a unity of
interest and ownership, the court may consider the following
factors: (1) the nature of the corporate ownership and control;
(2) failure to maintain corporate minutes or records; (3)
26
failure to maintain corporate formalities; (4) commingling of
funds and assets; (5) diversion of one corporation’s funds to
the other’s uses; and (6) use of the same office or business
location. See id. (citing Labadie Coal Co. v. Black, 672 F.2d
92, 97-99 (D.C. Cir. 1982)). Disregarding the separate
identities of a corporate parent and its subsidiary is, however,
a “rare exception grounded in equity considerations,” Adm’rs of
the Tulane Educ. Fund v. Ipsen Pharma, S.A.S., 770 F. Supp. 2d
24, 28 (D.D.C. 2011), and is only to be applied when “adherence
to the fiction of the separate existence of the corporation
would sanction a fraud or promote injustice,” Diamond Chem., 268
F. Supp. 2d at 9 (internal quotation omitted); see also In re
Baan Co. Secs. Litig., 245 F. Supp. 2d 117, 129 (D.D.C. 2003).
In his Opposition, Mazza states only that, “given Verizon
Communications’ relationship with its subsidiaries/investments
in [the] District of Columbia[,] this Court should find that
Plaintiff has clearly proffered evidence beyond the requirements
of a prima facie showing of personal jurisdiction over Verizon
Communications.” Pl.’s Opp’n at 13. These mere conclusory
statements, without more, do not demonstrate that Verizon
Communications exercises “active and substantial control” over
the other Verizon defendants. Defendants assert, on the other
hand, that Verizon Communications “is separate and distinct from
other Verizon entities and maintains all corporate formalities.”
27
Shekhter Decl. at ¶ 4. Mazza offers no evidence to demonstrate
that Verizon Communications is the alter ego of either VZDC or
Verizon Wireless. Therefore, the Court finds that Mazza has not
met his burden of demonstrating that the Court may exercise
personal jurisdiction over Verizon Communications.13
Accordingly, the Court hereby GRANTS defendants’ Motion to
Dismiss Verizon Communications.
13
In addition to “specific,” case-linked jurisdiction, a
court may also exercise “general” or all-purpose jurisdiction
over a non-resident defendant. Goodyear Dunlop Tires Operations
v. Brown, --- U.S. ----, 131 S. Ct. 2846, 2851, 2853 (2011).
General jurisdiction permits a court to hear any claims against
a defendant when its contacts with the forum are “so ‘continuous
and systematic’ as to render them essentially at home in the
forum.” Id. at 2851 (quoting International Shoe, 326 U.S. at
318); see also FC Inv. Group LC v. IFX Mkts., Ltd., 529 F.3d
1087, 1091-92 (D.C. Cir. 2008). Under District of Columbia law,
a court may exercise “general” personal jurisdiction over a non-
resident corporate defendant when it is “doing business in the
District.” D.C. Code § 13-334(a); see also Gorman v. Ameritrade
Holding Corp., 293 F.3d 506, 509-10 (D.C. Cir. 2002). Here,
plaintiff merely alleges that all of the defendants “are []
corporations conducting business within the District of Columbia
or have significant commercial ties to Washington, DC.” Compl.
¶ 2. However, as noted above, Verizon Communications has
proffered evidence that it does not conduct business in the
District of Columbia or have any commercial ties here. See
generally Defs.’ Mem. at 8-9; Shekhter Decl. ¶¶ 5-6. Moreover,
as discussed above, Mazza cannot show that Verizon
Communications has availed itself of this jurisdiction based on
an alter ego theory. Mazza has thus not met his burden of
demonstrating that Verizon Communications has “continuous and
systematic” business contacts with this forum. Accordingly, the
Court concludes that it cannot assert general personal
jurisdiction over defendant Verizon Communications.
28
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART defendants’ Motion to Dismiss. Specifically, the
Court will GRANT defendants’ Motion to Dismiss the FDCPA claims
as to VZDC and will GRANT defendants’ Motion to Dismiss as to
Verizon Communications. In addition, the common law claims
contained in Counts I and II of the Complaint are sua sponte
DISMISSED WITHOUT PREJUDICE. In all other respects, the Motion
to Dismiss is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Court Judge
March 29, 2012
29