MCCLELLAN v. PATENAUDE & FELIX, A.P.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIAN MCCLELLAN, et al., )

)

) 2:20-CV-678-NR

Plaintiffs, )

)

v. )

)

PATENAUDE & FELIX, A.P.C., )

)

)

Defendant. )

MEMORANDUM ORDER

Plaintiffs Brian McClellan and Michael Cockerham filed a putative class action

against Defendant Patenaude & Felix, A.P.C. (“P&F”) for alleged violations of the

Fair Debt Collection Practices Act. ECF 14. P&F now moves to dismiss Plaintiffs’

amended complaint, as well as strike Plaintiffs’ proposed class definition and

allegations. ECF 24. After careful consideration of the parties’ submissions, the

Court will deny P&F’s motion to dismiss, and will deny P&F’s motion to strike

without prejudice.

I. Plaintiffs have sufficiently pled Article III standing.1

P&F argues that Plaintiffs lack Article III standing because they did not suffer

a “concrete” and “particularized” injury. ECF 25, p. 6. The Court disagrees. Plaintiffs

assert that they suffered additional expenses, fees, and costs directly due to P&F’s

1 Article III standing requires that the plaintiff establish “(1) injury-in-fact, which is

an invasion of a legally protected interest that is (a) concrete and particularized, and

(b) actual or imminent, not conjectural or hypothetical; (2) a causal connection

between the injury and the conduct complained of; and (3) it must be likely, as

opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 290-91 (3d Cir. 2005)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). P&F only

challenges standing on the basis of a lack of a “concrete and particularized injury.”

Because there is no dispute as to the other elements of standing, and because the

Court finds that Plaintiffs meet those other requirements, the Court only addresses

the “concrete and particularized injury” requirement.

allegedly improper conduct. See ECF 14, ¶¶ 41-42, 56, 72. This is sufficient to satisfy

the “concrete and particularized injury” requirement for Article III standing. See,

e.g., Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (“While it

is difficult to reduce injury-in-fact to a simple formula, economic injury is one of its

paradigmatic forms.”); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992) (“At the pleading stage, general factual allegations of injury resulting from the

defendant’s conduct may suffice, for on a motion to dismiss we presume that general

allegations embrace those specific facts that are necessary to support the claim.”

(cleaned up)). Plaintiffs have sufficiently established standing at this stage.

II. Plaintiffs have pled plausible claims for relief.2

Plaintiffs bring two counts in their amended complaint. Count I alleges a

violation of 15 U.S.C. § 1692e, specifically § 1692e(5) & (10). ECF 14, ¶¶ 85-127; id.

at ¶ 92. Count II alleges a violation of 15 U.S.C. § 1692d. Id. at ¶¶ 128-146. P&F

argues that both claims should be dismissed under Rule 12(b)(6) because they do not

allege violations of the FDCPA. The Court finds, however, that Plaintiffs have pled

2 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). In determining whether the plaintiff

has pled a “plausible” claim for relief, the “District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard any legal conclusions.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. But the plaintiff “need only put forth allegations that raise a

reasonable expectation that discovery will reveal evidence of the necessary element.”

Fowler, 578 F.3d at 213 (cleaned up). Any reasonable inferences should be considered

in the light most favorable to the plaintiff (i.e., the non-moving party). Lula v.

Network Appliance, 255 F. App’x 610, 611 (3d Cir. 2007) (citing Rocks v. City of Phila.,

868 F.2d 644, 645 (3d Cir. 1989)). And the defendant bears the ultimate burden of

showing that its motion to dismiss should be granted. Hedges v. United States, 404

F.3d 744, 750 (3d Cir. 2005).

sufficient allegations to state a plausible claim for relief under the FDCPA, and thus

satisfy the Rule 12(b)(6) standard.

Plaintiffs’ claims generally stem from P&F’s alleged policy and practice of

seeking a continuance in a state-court debt-collection action by falsely representing,

on the day of the hearing, that it needs a continuance to procure a witness for the

hearing. See generally ECF 14; ECF 14-5. Plaintiffs allege that this request is merely

a pretext, as P&F never has any intention of procuring a witness, and simply uses

this as an excuse to delay the proceedings at Plaintiffs’ expense. E.g., ECF 14, ¶¶ 39-

40, 42, 66-67, 118-122; ECF 14-5.

As an initial matter, while P&F’s practice of requesting continuances is

directed to the state court, that does not automatically preclude FDCPA liability.

Communications made in the context of litigation, even if directed to a court, can give

rise to FDCPA liability. See, e.g., Kaymark v. Bank of Am., 783 F.3d 168, 177 (3d Cir.

2015) (abrogated on other grounds) (“Thus, except for §§ 1692e(11) and 1692g(d), the

[FDCPA] by [its] terms in fact suggest that all litigation activities, including formal

pleadings, are subject to the FDCPA.” (cleaned up)); id. at 178 (“Udren contends that

a complaint, because it is directed to the court, is not a communication to the

consumer subject to §§ 1692e and 1692f. This argument cannot be sustained.”); Simon

v. FIA Card Servs., 732 F.3d 259, 266-67 (3d Cir. 2013); Sayyed v. Wolpoff &

Abramson, 485 F.3d 226, 234 (4th Cir. 2007) (concluding that statements made in a

motion for summary judgment during a state-court debt-collection action could give

rise to FDCPA liability).

Further, Plaintiffs’ allegations that P&F never intends to procure a witness,

despite P&F representing to the contrary, state plausible claims under the plain

language of the FDCPA.3 Taking Plaintiffs’ allegations as true, P&F’s

3 To be sure, under the FDCPA, there is nothing impermissible or improper about

P&F requesting a continuance to procure a witness, or filing the debt-collection action

representations that it needs to procure a witness during the state-court debt-

collection proceedings are plausibly “false, deceptive, or misleading.” See 15 U.S.C. §

1692e. As P&F allegedly implements a policy of requesting a continuance to procure

a witness during the state-court proceeding, despite never actually intending to

procure a witness, P&F’s representation is plausibly a “threat to take an[ ] action that

. . . is not intended to be taken.” See id. at § 1692e(5); see, e.g., Brown v. Card Serv.

Cntr., 464 F.3d 450, 455 (3d Cir. 2006) (“[W]e conclude that it would be deceptive

under the FDCPA for CSC to assert that it could take an action that it had no

intention of taking and has never or very rarely taken before. . . . [W]ere it proven

that the CSC had reason to know that the legal action described in its letter to Brown

was unlikely, its statement in the CSC Letter that it was possible could be deemed

misleading.”); Wideman v. Monterey Financial Servs., No. 08–1331, 2009 WL

1292830, at *3 (W.D. Pa. May 7, 2009) (“Because Wideman has specifically alleged in

the complaint that ‘MFS did not intend to file a 1099 C with the IRS,’ she has properly

stated a claim under § 1692e(5).”); King v. Arrow Financial Servs., No. 02-0867, 2003

WL 21780973, at *3 (E.D. Pa. July 31, 2003) (“[I]n some instances . . . one-time

settlement letters state a date by which payment must be received in order to avert

the commencement of the lawsuit, when, in fact, no lawsuit is intended. This practice

has also been found to violate the FDCPA prohibitions against ‘threatening to take

any action ... that is not intended to be taken.’” (cleaned up)).

Similarly, Plaintiffs’ factual allegations, taken as true, state a plausible claim

under § 1692d. According to Plaintiffs, P&F intentionally waits until the day of the

hearing, after Plaintiffs prepare and appear for the hearing, and only then,

misleadingly requests a continuance to procure a witness it has no intention of

procuring. E.g., ECF 14, ¶¶ 131-135. Because of P&F’s alleged tactics, Plaintiffs’

in the first place. Rather, it is the alleged falsity and misleading nature of P&F’s

continuance request that gives rise to the potential FDCPA violations here.

preparation and spent resources (both financially and otherwise) is for naught, and

the process must be repeated. Under the plain language of § 1692d, the Court

concludes that Plaintiffs’ allegations, at least at this stage, plausibly allege that P&F

engaged in “conduct the natural consequence of which is to harass, oppress, or abuse

any person.” See 15 U.S.C. § 1692d; Allen ex rel. Martin v. LaSalle Bank, 629 F.3d

364, 367 (3d Cir. 2011) (“[W]e construe [the FDCPA’s] language broadly so as to effect

its purposes. . . . [Section] 1692d similarly condemns any conduct the natural

consequence of which is to harass, oppress, or abuse any person. (cleaned up)

(emphasis in original)).

Certainly, discovery will shed light on whether this claim may survive

summary judgment or succeed at trial, as the specific factual context of the

communications will be relevant in determining whether the communications were

harassing, oppressive, or abusive. Cf. Owens v. JP Morgan Chase Bank, No. 18-1421,

2020 WL 1888857, at *10 (W.D. Pa. April 16, 2020) (“Whether the conduct at issue

harassed, oppressed, or abused the debtor is generally a question for the jury.”

(citation omitted)); Regan v. Law Offices of Edwin A. Abrahamsen, No. 08–5923, 2009

WL 4396299, at *6 (E.D. Pa. Dec. 1, 2009) (“Although summary judgment may be

appropriate where the specific conduct at issue unequivocally has—or does not

have—the natural consequence of harassing, oppressing, or abusing the consumer as

a matter of law, the court cannot say as a matter of law that either is true of the

communications at issue in this case.” (citations omitted)); Hoover v. Monarch

Recovery Mgmt., 888 F. Supp. 2d 589, 598-99 (E.D. Pa. 2012) (“[I]n this judicial

district, judges lean toward giving plaintiff an opportunity to conduct discovery if

plaintiff alleges a significant volume of calls, even without alleging separate facts

supporting defendant’s intent.”). At this stage, Plaintiffs have pled sufficient facts

such that Count II states a plausible claim.

In sum, Plaintiffs’ allegations state plausible claims for relief under the plain

language of the FDCPA. This is especially so in light of the broad protections

provided by the FDCPA. See, e.g., Allen, 629 F.3d at 367 (“The FDCPA is a remedial

statute, and we construe its language broadly so as to effect its purposes.” (citation

omitted)). Details surrounding P&F’s actual motivations, the effect of P&F’s actions

on Plaintiffs, and the precise communications between Plaintiffs (and their attorneys)

and P&F, are all relevant considerations that may affect Plaintiffs’ claims. These

questions must be determined through discovery. Dismissal is thus unwarranted.4

III. P&F’s class-definition arguments are better addressed at the class-

certification stage.

Finally, P&F moves to strike Plaintiffs’ proposed class definition and

allegations under Rule 12(f). P&F argues that Plaintiffs use an improper “fail-safe”

class definition, and “the ‘competent attorney’ standard alone thwart[s] certification

in this matter.” ECF 25, pp. 14-16. The Court acknowledges that Plaintiffs’ proposed

class definition may be problematic, as the definition inherently assumes an FDCPA

violation. See, e.g., McDonald v. Wells Fargo Bank, 374 F. Supp. 3d 462, 494, n.179

(W.D. Pa. 2019) (“A ‘fail-safe’ class is one that is defined so that whether a person

4 For these same reasons, P&F’s representations in the state-court debt-collection

proceedings are plausibly a “false representation or deceptive means.” See 15 U.S.C.

§ 1692e(10). As P&F itself recognizes, the claim under § 1692e(10) is derivative of

Plaintiffs’ §§ 1692e(5) and 1692d claims. E.g., ECF 25, p. 12. Thus, given that

Plaintiffs have stated plausible claims under § 1692d and § 1692e(5), the § 1692e(10)

claim will also not be dismissed. See, e.g., Gervais v. Riddle & Associates, 479 F.

Supp. 2d 270, 276-77 (D. Conn. 2007) (“Courts have long held that after finding a

valid claim under a more specific subsection of § 1692e, such as § 1692e(5), further

analysis under § 1692e(10) is somewhat duplicative. . . . Therefore, having found that

Defendant violated § 1692e(5) . . . this Court . . . finds that defendant also used “false

representation or deceptive means” to collect a debt from a consumer in violation of §

1692e(10).” (cleaned up)); Thomas v. John A. Youderian Jr., LLC, 232 F. Supp. 3d

656, 679 (D.N.J. 2017) (same).

qualifies as a member depends on whether the person has a valid claim. Such a class

definition is improper because a class member either wins or, by virtue of losing, is

defined out of the class and is therefore not bound by the judgment.” (cleaned up));

Smith v. Vision Solar LLC, No. 20-2185, 2020 WL 7230975, at *5 (E.D. Pa. Dec. 8,

2020); see also ECF 14, ¶ 76.

However, the Court finds that P&F’s class arguments are better addressed at

the class-certification stage. See, e.g., Smith, 2020 WL 7230975, at *5 (“Nonetheless,

even if the proposed class seems fail-safe, district courts within the Third Circuit

‘have a preference for addressing the issues discussed herein at the class certification

stage. The fail-safe problem is more of an art than a science. This problem can and

often should be solved by refining the class definition rather than by flatly denying

class certification on that basis.’” (quoting Merino v. Wells Fargo & Co., No. 16-7840,

2017 WL 3908670, at *5, 6 (D.N.J. Sept. 6, 2017) (cleaned up))). The Court will

therefore deny P&F’s motion to strike without prejudice. To the extent that Plaintiffs

move to certify a class defined in the same manner as pled in the amended complaint,

P&F can raise this same argument at the class-certification stage.

***********************

Accordingly, it is ORDERED that Defendant’s motion to dismiss/strike (ECF

24) is DENIED. This is without prejudice to Defendant raising its arguments on a

more complete record at subsequent stages of this case.

DATE: March 19, 2021 BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge