Raphiel v. Haley Residential Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

DECALVIN SHUNTRELL RAPHIEL CIVIL ACTION NO. 22-0427

VERSUS JUDGE S. MAURICE HICKS, JR.

HALEY RESIDENTIAL INC., ET AL. MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Before the Court is a Motion to Dismiss (Record Document 18) filed by Defendant,

Hans Vestberg (“Vestberg”), seeking dismissal of all claims filed by Plaintiff, Decalvin

Shuntrell Raphiel (“Raphiel”), pursuant to Federal Rules of Civil Procedure 12(b)(2) and

12(b)(6). Raphiel filed an opposition (Record Document 23), and Vestberg filed a reply

(Record Document 24). For the following reasons, Vestberg’s Motion to Dismiss is

GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

On February 9, 2022, Raphiel filed suit in this Court against seven named

defendants, alleging a violation of his consumer rights and the use of abusive debt

collection procedures under the Fair Debt Collection Practices Act (“FDCPA”). See

Record Document 1. The Complaint seeks relief in the form of $100,000 and requests

that Raphiel’s accounts “be zero [sic] out.” See id. at 4. Raphiel does not specify which

debts the defendants were seeking to collect, other than to list potential debts owed to

companies for “lighting, Cell [sic] phone, apartment, and Wi-Fi.” See id. at 1. With respect

to abusive trade practices, Raphiel alleges that the defendants generally have been

violating the following: “15 U.S.C. 1692C Communication in connection with debt

collection. Calling, sending bill”; “15 U.S.C. 1692D Harassment or abuse, Demanding I

pay a debt”; and “21 U.S.C. 3718 Contract for collection services, without presenting a

contract to collect.” See id. at 3.

In his Motion to Dismiss, Vestberg, the Chairman and Chief Executive Officer of

Verizon, argues that Raphiel’s claims should be dismissed because (1) this Court lacks

personal jurisdiction over Vestberg, who is a citizen of New York, and (2) Raphiel fails to

plead any factual allegations that could state a claim under the FDCPA. See Record

Document 18-1 at 2. Vestberg further states that the Complaint “is devoid of any specific

allegation concerning the debts at issue, how those debts relate to the individual

defendants, and what acts were undertaken by the individual defendants to collect on

these debts.” See id. at 3. Raphiel’s opposition does not contest the arguments in

Vestberg’s Motion to Dismiss, but rather lists various interrogatories and generally states

that his Complaint is sufficient. See Record Document 23. In his reply, Vestberg argues

that his Motion to Dismiss is essentially unopposed and should be granted under Rule

12(b)(2) or Rule 12(b)(6). See Record Document 24 at 1.

LAW AND ANALYSIS

I. Legal Standard under FRCP 12(b)(2)

A motion pursuant to Rule 12(b)(2) allows a party to move to dismiss for lack of

personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). “Where a defendant challenges

personal jurisdiction, the party seeking to invoke the power of the court bears the burden

of proving that jurisdiction exists.” Luv N'Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469

(5th Cir. 2006) (citing Wyatt v. Laplan, 686 F.2d 276, 280 (5th Cir. 1982)). When a court

rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary

hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. See

Rd. Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO v. CCR Fire Prot., LLC, Civil

Action No. 16-448-JWD-EWD, 2018 WL 3076743, at *4 (M.D. La. June 21, 2018).

“Moreover, on a motion to dismiss for lack of jurisdiction, uncontroverted allegations in

the plaintiff's complaint must be taken as true, and conflicts between the facts contained

in the parties' affidavits must be resolved in the plaintiff's favor for purposes of determining

whether a prima facie case for personal jurisdiction exists.” Bullion v. Gillespie, 895 F.2d

213, 217 (5th Cir. 1990) (quoting D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent

Gregg, Inc., 754 F.2d 542, 546 (5th Cir. 1985)).

II. Legal Standard under FRCP 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the pleading standard

to state a claim for relief, requiring that a pleading contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” While some specific causes of

action have a heightened pleading standard imposed on them by the Rules or statute,

that is not the case for claims under Title VII. See Swierkiewicz v. Sorema N.A., 534 U.S.

506, 508 (2002). The standard for the adequacy of all complaints under Rule 8(a)(2) is

now the “plausibility” standard found in Bell Atlantic Corp. v. Twombly and its progeny.

550 U.S. 544 (2007). Under this standard, “[f]actual allegations must be enough to raise

a right to relief above the speculative level . . . on the assumption that all the allegations

in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). If a

pleading only contains “labels and conclusions” and “a formulaic recitation of the elements

of a cause of action,” the pleading does not meet the standards of Rule 8(a)(2). Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a

party’s pleading for “failure to state a claim upon which relief can be granted.” Courts must

accept all factual allegations in the complaint as true. See Iqbal, 556 U.S. at 678.

However, courts do not have to accept legal conclusions as facts. See id. A court does

not evaluate a plaintiff’s likelihood for success, but instead determines whether a plaintiff

has pleaded a legally cognizable claim. See Thompson v. City of Waco, 764 F.3d 500,

503 (5th Cir. 2014). Courts considering a motion to dismiss under Rule 12(b)(6) are only

obligated to allow those complaints that are facially plausible under the Iqbal and

Twombly standard to survive such a motion. See Iqbal, 556 U.S. at 679. If the complaint

does not meet this standard, it can be dismissed for failure to state a claim upon which

relief can be granted. See id. Such a dismissal ends the case “at the point of minimum

expenditure of time and money by the parties and the court.’” Twombly, 550 U.S. at 558

(citations omitted).

III. Analysis

a. Personal Jurisdiction

In his Motion to Dismiss, Vestberg first argues that this Court lacks personal

jurisdiction over Vestberg, and thus, Raphiel’s claims should be dismissed under Rule

12(b)(2). See Record Document 18-1 at 3. Vestberg asserts that Raphiel has failed to

carry his burden of making a prima facie showing that this Court may exercise personal

jurisdiction over Vestberg. See id. at 6.

Under Fifth Circuit precedent, personal jurisdiction over a defendant exists if (1)

the state's long-arm statute extends to the defendant, and (2) the exercise of such

jurisdiction is consistent with due process. See Johnston v. Multidata Sys. Int'l Corp., 523

F.3d 602, 609 (5th Cir. 2008). The Louisiana long arm statute extends as far as is

permitted by due process. See Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640

(5th Cir. 2002). The exercise of personal jurisdiction over a defendant comports with due

process only if (1) the defendant has purposefully availed himself of the benefits and

protection of Louisiana by establishing “minimum contacts” with Louisiana, and (2) the

exercise of personal jurisdiction over the defendant does not offend traditional notions of

fair play and substantial justice. See Allred v. Moore & Peterson, 117 F.3d 278, 285 (5th

Cir. 1997).

Under the minimum contacts test, a defendant may be subject to either “general

jurisdiction” or “specific jurisdiction.” See Ford v. Mentor Worldwide, LLC, 2 F. Supp. 3d

898, 903 (E.D. La. 2014). General jurisdiction arises when a defendant maintains

“continuous and systematic” contacts with the forum state, even when the cause of action

has no relation to those contacts. See Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 414–16 (1984). “The Fifth Circuit has characterized the ‘continuous and

systematic contacts’ test as a ‘difficult one to meet.’” Ford, 2 F. Supp. 3d at 903 (citing

Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008)). “[E]ven repeated

contacts with forum residents by a foreign defendant may not constitute the requisite

substantial, continuous and systematic contacts required for a finding of general

jurisdiction.” Johnston, 523 F.3d at 609 (quoting Revell v. Lidov, 317 F.3d 467, 471 (5th

Cir. 2002)). “For an individual, the paradigm forum for the exercise of general jurisdiction

is the individual’s domicile[.]” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 924, 131 S. Ct. 2846 (2011).

Specific jurisdiction exists where a nonresident defendant “has ‘purposefully

directed its activities at the forum state and the litigation results from alleged injuries that

arise out of or relate to those activities.’” Panda Brandywine Corp. v. Potomac Elec. Power

Co., 253 F.3d 865, 868 (5th Cir. 2001) (quoting Alpine View Co. v. Atlas Copco A.B., 205

F.3d 208, 215 (5th Cir. 2000)). “The non-resident’s ‘purposeful availment’ must be such

that the defendant ‘should reasonably anticipate being haled into court’ in the forum

state.” Ruston Gas Turbines Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir. 1993)

(quoting World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 580

(1980)). The Fifth Circuit has formulated a three-step analysis for specific jurisdiction:

(1) whether the defendant has minimum contacts with the

forum state, i.e., whether it purposely directed its activities

toward the forum state or purposefully availed itself of the

privileges of conducting activities there; (2) whether the

plaintiff's cause of action arises out of or results from the

defendant's forum-related contacts; and (3) whether the

exercise of personal jurisdiction is fair and reasonable.

Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006) (citations

omitted).

Here, Raphiel has made neither a showing of general jurisdiction nor specific

jurisdiction over Vestberg. First, there is no allegation within the Complaint that would

satisfy the test for general jurisdiction. Notably, Vestberg resides in New York, and there

is no allegation that he maintains a domicile in Louisiana. See Record Document 18-1 at

7; see also Brown, 564 U.S. at 924 (noting that “the paradigm forum for the exercise of

general jurisdiction is the individual’s domicile”). Further, there are no allegations that

would demonstrate “continuous and systematic” contact by Vestberg in this jurisdiction.

In fact, none of the allegations relate to or even mention Vestberg, beyond the inclusion

of his name among the other defendants. See Record Document 1 at 1.

Additionally, there is no allegation that would demonstrate specific jurisdiction over

Vestberg. As Vestberg succinctly puts it in his motion,

Nothing in the Complaint can reasonably allow this Court to

find that Defendant purposefully directed any activity at this

forum state. Nor does Plaintiff allege any facts to show that

Defendant’s specific contacts with this forum state caused him

any injuries. In fact, there is no allegation at all that Defendant

had any contact with Plaintiff or the forum state, let alone any

contact with Plaintiff inside the forum state.

Record Document 18-1 at 7. This Court agrees with Vestberg’s assertions and finds that

Raphiel has failed to make a prima facie showing of either general or specific jurisdiction

over Vestberg.

Further, rather than address these deficiencies in his opposition to the Motion to

Dismiss, Raphiel merely posed interrogatories and seemingly challenged another

defendant’s Motion to Dismiss. See Record Document 23. The burden was on Raphiel to

come forward with a prima facie case for this Court’s exercise of personal jurisdiction, yet

Raphiel failed to do so. See Luv N'Care, Ltd., 438 F.3d at 469. Thus, because Raphiel

has not made any allegations that would demonstrate this Court’s ability to exercise

personal jurisdiction over Vestberg, the Motion to Dismiss is GRANTED pursuant to Rule

12(b)(2).

b. Claim Under FDCPA

Vestberg argues that, even if this Court could exercise personal jurisdiction over

Vestberg, Raphiel’s claims fail as a matter of law under Rule 12(b)(6) for failure to state

a claim upon which relief can be granted. See Record Document 18-1 at 7. Vestberg

asserts that Raphiel “fails to allege any specific facts against any defendant, much less

legally cognizable facts.” See id. at 9. Further, Vestberg argues that Raphiel cannot meet

any of the elements of an FDCPA claim. See id. at 10.

The FDCPA regulates “abusive, deceptive, and unfair debt collection practices” by

limiting the type and number of contacts a “debt collector” may make with a

debtor. See 15 U.S.C. § 1692. To state a claim under the FDCPA, a plaintiff must allege

that “(1) he has been the object of collection activity arising from [a] consumer debt, (2)

the defendant is a ‘debt collector’ as defined by the Act, and (3) the defendant has

engaged in an act or omission prohibited by the Act.” Saragusa v. Countrywide, No. CV

14-2717, 2016 WL 1059004, at *5 (E.D. La. Mar. 17, 2016), aff'd sub nom. Saragusa v.

Countrywide Home Loans, Inc., 707 F. App'x 797 (5th Cir. 2017).

This Court agrees with Vestberg that Raphiel has failed to plead sufficient facts to

state a claim under the FDCPA. First, Raphiel did not specify any consumer debt that was

the subject of a collection activity. See Blount v. Cap. One Fin. Corp., No. CV 20-675-

JWD-EWD, 2021 WL 3912540, at *6 (M.D. La. Aug. 13, 2021), report and

recommendation adopted, No. CV 20-675-JWD-EWD, 2021 WL 3909664 (M.D. La. Aug.

31, 2021) (“Plaintiff must allege enough facts to make a threshold showing that the

FDCPA applies, including that there is a covered ‘debt’ and that [the defendant] is a ‘debt

collector.’”). Second, Raphiel has not alleged that Vestberg is a “debt collector” as defined

in the FDCPA. And, as Vestberg points out, the FDCPA expressly excludes from the

definition of “debt collector” “any officer or employee of a creditor” who “in the name of

the creditor, collect[s] debts for such creditor.” See 15 U.S.C. § 1692a; Roberts v. Am.

Bank & Tr. Co., 835 F. Supp. 2d 183, 197 (E.D. La. 2011) (finding that “bank employee”

does not qualify as a debt collector under the FDCPA); Dixon v. Gen. Motors Fin. Corp.,

No. CV 17-4492, 2018 WL 4701540, at *4 (E.D. La. Oct. 1, 2018) (finding that “Individual

Defendants are employees of GM Financial . . . not subject to the FDCPA”). Thus,

Vestberg, as an officer of Verizon, is likely excluded from the definition of “debt collector.”

Third, Raphiel fails to allege what activity Vestberg engaged in that violated the FDCPA.

In fact, Raphiel does not allege that any interaction occurred between Vestberg and

himself at all. See Record Document 18-1 at 11. Raphiel’s conclusory allegations that he

received phone calls and was the subject of some harassment is insufficient to state a

claim against Vestberg specifically. A generalized billing dispute with various companies

does not rise to the level of a viable FDCPA complaint against Vestberg. Thus, because

Raphiel failed to plead a plausible claim for relief against Vestberg under the FDCPA, or

any other law, the Motion to Dismiss is GRANTED pursuant to Rule 12(b)(6), regardless

of this Court’s finding as to personal jurisdiction over Vestberg.

CONCLUSION

Based on the reasons outlined above,

IT IS ORDERED that Vestberg’s Motion to Dismiss (Record Document 18) is

GRANTED. All claims filed by Raphiel against Vestberg are DISMISSED WITH

PREJUDICE.

An order consistent with this ruling shall issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 7th day of February,

2023. SO

UNITED STATES DISTRICT COURT