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Watson v. Ciconte, Wasserman, Scerba & Kerrick, LLC

United States District Court, D. Delaware

August 10, 2017

RENEE S. WATSON, Plaintiff,
v.
CICONTE, WASSERMAN, SCERBA & KERRICK, LLC,, Defendants.

          Renee S. Watson, Newark, Delaware, Pro Se Plaintiff.

          Adam F. Wasserman, Esquire, Ciconte, Wasserman, Scerba & Kerrick, LLC, Wilmington, Delaware. Counsel for Defendant Ciconte, Wasserman, Scerba & Kerrick, LLC.

          Ana Marina McCann, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware. Counsel for Defendant Portfolio Recovery Associates, LLC.

          MEMORANDUM OPINION

          STARK, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Renee S. Watson ("Plaintiff or "Watson") filed this action on September 20, 2013. She proceeds pro se and was granted in forma pauperis status. The Court dismissed the complaint and gave Watson leave to amend. (See D.I. 21, 22) The Court dismissed the amended complaint and gave Plaintiff leave to file a second amended complaint, and she did so on October 21, 2016. (See D.I. 28, 29, 31) Presently before the Court is Defendant Portfolio Recovery Associates, LLC's ("PRA") motion to dismiss the second amended complaint.[1] (D.I. 32) Watson did not file an opposition to the motion.

         II. BACKGROUND

         With few exceptions, Counts I, II, and III of the second amended complaint are identical to Counts I, II, and III of the amended complaint. (Compare D.I. 23 with D.I. 31) The second amended complaint omits Counts IV, V, and VI that were found in the amended complaint.

         The second amended complaint alleges that: (1) on October 10, 2010, PRA initiated a hard pull of Watson's credit report from a credit reporting agency without permission; (2) in August 2011, Plaintiff was contacted by CWSK requesting payment; (3) on April 18, 2012, PRA initiated a hard pull of Watson's credit report from a reporting agency without a permissible purpose; (4) on September 16, 2012, Plaintiff sent a notice of dispute to CWSK; (5) on September 26, 2012, Watson received a default letter without proper validation as required by statute; (5) on October 8, 2012, Watson sent a notice of dispute to PRA; and (6) on November 20, 2012, Plaintiff received another default letter without proper validation from CWSK. (D.I. 31 at ¶¶ 7-16) Watson alleges that PRA is a debt collector. (Id. at ¶ 6)

         The claims are as follows: Counts I and II allege that PRA, as a furnisher of information, violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681b(f), when it willfully (Count I) and negligendy (Count II) obtained Watson's consumer report without a permissible purpose, pursuant to 15 U.S.C. §§ 1681n and 1681o. Count I of the second amended complaint adds a paragraph that alleges Plaintiffs constitutional rights were violated under 42 U.S.C. § 1983 and seeks recovery under 42 U.S.C. § 1988. (D.I. 31 at¶¶ 28, 29) Count II of the second amended complaint adds a paragraph that alleges PRA violated Plaintiffs rights under the Privacy Act of 1964.[2] (Id. at ¶34)

         Count III alleges that PRA and CWSK, as debt collectors, violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, when they willfully: (a) misrepresented the character, amount, or legal status of an alleged debt (§ 1692e(2)); (b) took action that cannot legally be taken or is not intended to be taken (§ 1692e(5)); (c) used false representation or deceptive means to collect an alleged debt (§ 1692e(10); and (d) willfully continued collection efforts without validating the alleged debt (§ 1692g(b)). Count III adds a paragraph that Defendants willfully violated the Delaware Uniform Deceptive Trade Practices Act ("DTPA"). This claim was previously raised as Count V in the amended complaint and Count VII of the original complaint and was dismissed by the Court. Watson seeks actual, statutory, and punitive damages.

         PRA moves for dismissal on the grounds that the second amended complaint fails to state claims upon which relief may be granted. More particularly, PRA argues that the second amended complaint does not cure the pleading defects of the original complaint and amended complaint. Plaintiff did not file an opposition to the motion. CWSK, who is named in Count III, filed an answer to the amended complaint, but has not answered or otherwise filed a responsive pleading to the second amended complaint. (See D.I. 25)

         III. LEGAL STANDARDS

         Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis,372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Turlington Coat Factory Sec. Utig.,114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc.,221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted). However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman,499 F.3d 227, 234 (3d Cir. 2007) (quoting BellAtl. Corp. v. Twombly,550 U.S. 544, 555 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,556 U.S. 662, 678 ...


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