The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GINGER BROWN,
Plaintiff,
MEMORANDUM & ORDER
- against - 24-CV-1184 (PKC) (RML)
MIDLAND CREDIT MANAGEMENT,
Defendant.
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PAMELA K. CHEN, United States District Judge:
On February 15, 2024, Plaintiff Ginger Brown (“Plaintiff”) initiated this action, alleging
that Defendant Midland Credit Management (“Defendant”) violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, by not honoring her preferred form of communication
selection. (See generally Dkt. 1.) On February 16, 2024, the Court ordered Plaintiff to show cause
why this case should not be dismissed for lack of standing based on the Supreme Court’s decision
in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021). (2/16/24 Order to Show Cause.) Plaintiff
and Defendant both filed responses to the Court’s Show Cause Order. (Dkts. 7, 8.) Having
reviewed the Parties’ submissions and the relevant law, the Court finds that Plaintiff lacks standing
to bring suit in federal court and dismisses the complaint.
BACKGROUND
In her complaint, Plaintiff alleges that she is a consumer and has debt as defined by the
FDCPA, 15 U.S.C. § 1692a. (Compl., Dkt. 1, ¶¶ 8, 10.) Defendant “is a post-default purchaser of
consumer debts” and is a licensed debt collector as defined by 15 U.S.C. § 1692a. (Id. ¶¶ 11, 17–
18.) As a debt collector, Defendant is “engaged in the collection of debt from consumers”
(including debts due to other companies) through the United States Postal Service (“USPS”) and
over the telephone. (Id. ¶ 19.)
On or about December 2023, Plaintiff noticed on her credit report that she had a balance
of $523 due to Comenity Bank. (See id. ¶¶ 21–22.) Then, on or about January 2, 2024, Plaintiff
mailed a letter to Defendant explaining that “the only convenient way [for Defendant] to contact
her was via electronic mail.” (Id. ¶¶ 23–24.) Plaintiff provided her email address within the letter.
(Id. ¶ 24.)
On or about January 12, 2024, Plaintiff received a letter, via regular mail, from Defendant
indicating that it had received Plaintiff’s letter and that Defendant understood that Plaintiff was
“inquiring about or requesting documentation about the accuracy of [its] records concerning [her]
account.” (Id. ¶¶ 26–27.) Plaintiff alleges that Defendant violated the FDCPA’s communication
provisions, 15 U.S.C. § 1692c(a), by contacting Plaintiff through the USPS, a method of
communication that Plaintiff had already informed Defendant was “inconvenient.” (See Compl.
¶¶ 31–32.) Plaintiff further alleges that as a result of the inconvenient communication, she “has
suffered actual damages . . . in the form of invasion of privacy, intrusion upon seclusion, personal
embarrassment, loss of productive time, emotional distress, frustration, anger, humiliation
and . . . other negative emotions.” (Id. ¶ 28.)
DISCUSSION
Plaintiff argues that she has standing to bring her claim in federal court because the
inconvenient communication she received “intruded upon her seclusion and invaded her
privacy . . . which upset, distressed and alarmed her.” (Dkt. 7 at 7.) Defendant’s cryptic response
seems to simply acknowledge the possibility that Plaintiff might have standing to bring her FDCPA
claim in this court, (see Dkt. 8 at 2 (“At this early stage in the litigation, . . . it appears Plaintiff is
claiming she suffered a concrete injury for which she now seeks to be compensated that could give
rise to Article III standing.”)), without actually taking a position on whether Plaintiff has
sufficiently alleged injury for purposes of Article III standing, id.
To establish Article III standing, a plaintiff “must have (1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). An injury in fact must be
“‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at
339 (quoting Lujan, 504 U.S. at 560). If a plaintiff lacks Article III standing, a federal court has
no subject matter jurisdiction to hear their claim. Cent. States Se. & Sw. Areas Health & Welfare
Fund v. Merck–Medco Managed Care, LLC, 433 F.3d 181, 198 (2d Cir. 2005).
As this Court explained in its Order to Show Cause on February 16, 2024:
[In] 2021, . . . the Supreme Court decided TransUnion LLC v. Ramirez, clarifying
that, even where a defendant violates a statute such as the FDCPA, the plaintiff has
not necessarily suffered an injury-in-fact sufficient to establish Article III standing.
[594 U.S. 413, 425–27] (2021)[ ] (“[A]n important difference exists between (i) a
plaintiff’s statutory cause of action to sue a defendant over the defendant’s violation
of federal law, and (ii) a plaintiff’s suffering concrete harm because of the
defendant’s violation of federal law.”). Since TransUnion, courts in this Circuit,
including this one, have applied that principle to the types of facts alleged here and
found that plaintiffs had not suffered injuries-in-fact and thus did not have standing
to sue in federal court. See, e.g., Nojovits v. Ceteris Portfolio Servs., LLC, No. 22-
CV-2833 (PKC) (CLP), 2022 WL 2047179, at *2 (E.D.N.Y. June 7, 2022) (finding
no standing where plaintiff alleged “fear, anxiety, stress, increased heartrate, and
difficulty with sleep” from receiving a debt collection letter); Kola v. Forster &
Garbus LLP, No. 19-CV-10496 (CS), 2021 WL 4135153, at *1, 7 (S.D.N.Y. Sept.
10, 2021) (explaining that merely receiving a misleading or confusing letter under
the FDCPA does not establish an injury-in-fact).
As the Court explained at that time, FDCPA cases that are dismissed from federal court for
lack of standing can still “be brought in state courts, which have jurisdiction to enforce the FDCPA
and are not bound by the injury-in-fact requirement of Article III of the Constitution.” (2/16/2024
Order to Show Cause (citing Cavazzini v. MRS Assocs., 574 F. Supp. 3d 134, 145 (E.D.N.Y. 2021);
Ciccone v. Cavalry Portfolio, No. 21-CV-2428 (JS) (JMW), 2021 WL 5591725, at *3 (E.D.N.Y.
Nov. 29, 2021)).).
Plaintiff lacks standing to bring her FDCPA claim in federal court. “Only those plaintiffs
who have been concretely harmed by a defendant’s statutory violation may sue . . . in federal
court.” TransUnion, 594 U.S. at 427. While TransUnion recognized that intangible harms such
as “disclosure of private information, and intrusion upon seclusion”—which Plaintiff alleges here,
(Compl., Dkt. 1, ¶ 28)—can be concrete, TransUnion, 594 U.S. at 425, the Court finds that
Plaintiff’s alleged privacy injuries do not constitute concrete harms. For a privacy harm to rise to
the level of stating a claim for intrusion upon seclusion, the alleged intrusion must “be highly
offensive to a reasonable person.” Salazar v. Nat’l Basketball Assoc., No. 22-CV-7935 (JLR),
2023 WL 5016968, at *6 (S.D.N.Y. Aug. 7, 2023) (citing Restatement (Second) of Torts § 652B
(1977)). Similarly, common law invasion of privacy claims typically require a disclosure of
private information that “would be highly offensive to a reasonable person.” Cavazzini, 574 F.
Supp. 3d at 141–42 (citing Restatement (Second) of Torts § 652D (1977)). Plaintiff, however, has
not pleaded any injury that would be highly offensive to a reasonable person. Indeed, here, there
is no alleged disclosure of private information, and the Court cannot conclude that Defendant’s
transmission of the January 2, 2024, letter to Plaintiff via USPS as opposed to via email, would be
highly offensive to a reasonable person.
In addition, Plaintiff’s “perfunctory allegation[s] of emotional distress” alone are
“insufficient to plausibly allege constitutional standing.” Maddox v. Bank of N.Y. Mellon Tr. Co.,
N.A., 19 F.4th 58, 66 (2d Cir. 2021). Here, Plaintiff pleads no facts that “make it plausible that
[she] did indeed suffer the sort of [emotional] injury that would entitle [her] to relief.” See id. at
65–66 (quoting Harry v. Total Gas & Power N. Am., Inc., 889 F.3d 104, 110 (2d Cir. 2018)
(internal quotation marks omitted)).
CONCLUSION
Because Plaintiff has failed to allege any concrete injury, she does not have Article III
standing, and the Court therefore lacks jurisdiction over this matter. The complaint is dismissed
without prejudice. The Clerk of Court is respectfully directed to enter judgment and close this
case.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: April 15, 2024
Brooklyn, New York