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Baldwin v. Wells Fargo Financial National Bank

United States District Court, S.D. West Virginia, Huntington Division

January 5, 2017




         Pending before the Court is Defendant's Motion to Dismiss the First Amended Complaint (ECF No. 25). Defendant argues that Counts II and III fail as a matter of law and should be dismissed for failure to state a claim under Federal Rule 12(b)(6). See Def.'s Mem. in Supp., ECF No. 26. The Court agrees with Defendant that Plaintiffs cannot maintain a cause of action for Negligent Infliction of Emotional Distress in Count II, but the Court finds the other common law claims actionable at this stage of litigation. Therefore, Defendant's motion to dismiss is GRANTED IN PART AND DENIED IN PART.

         I. Background

          According to Plaintiffs' complaint, Plaintiffs fell into arrears over an alleged debt owed to Defendant. Pls.' First Am. Compl., ECF No. 22, at ¶ 5. Defendant called Plaintiffs to collect on the debt, allegedly making multiple calls per day. Id. at ¶¶ 5-6. Plaintiffs retained legal counsel on or around May 22, 2015. Id. at ¶ 7. During one of the phone calls, Plaintiffs allegedly alerted Defendant to their legal retainer and provided Defendant the contact information for the attorney. Id. at ¶ 8. After this interaction, Defendant allegedly continued to call Plaintiffs “on an almost daily basis and often multiple times a day.” Id. at ¶ 9.

         Plaintiffs filed suit on April 21, 2016 in the Circuit Court of Cabell County. ECF No. 1-2. Defendant timely removed the case to federal court on May 27, 2016. ECF No. 1. Plaintiffs' first amended complaint includes three separate causes of action. The first alleges violations of the West Virginia Consumer Credit and Protection Act (WVCCPA), specifically listing § 46A-2-128(e), § 46A-2-125, and § 46A-2-125(d). Pls.' First Am. Compl., ECF No. 22, at ¶ 12. Plaintiffs claim that Defendant used “unfair or unconscionable means to collect a debt, ” engaged in “unreasonable, oppressive, or abusive conduct” by the number of phone calls placed, and called Plaintiffs “with the intent to annoy, abuse, or oppress.” Id. The second cause of action alleges “Intentional and/or Negligent Infliction of Emotional Distress” (IIED or NIED). Id. at ¶¶ 15-17. Here, Plaintiffs allege that Defendant's conduct was egregious and extreme by Defendant making a large number of phone calls to Plaintiffs, contacting Plaintiffs after knowing about attorney representation, adopting policies that violated West Virginia law, and adopting policies that have the effect of causing consumers emotional distress. Id. at ¶ 15. Plaintiffs assert that they “have been annoyed, inconvenienced, harassed, bothered, upset, threatened, and were otherwise caused indignation and distress.” Id. at ¶ 17. Plaintiffs' last cause of action is for Invasion of Privacy, alleging that Defendant's continuous calling invaded Plaintiffs' expectation of privacy. Id. at ¶ 20. As a result, Plaintiffs have suffered the same list of emotional distress. Id. at ¶ 22. For the three claims, Plaintiffs request actual and statutory damages, general and punitive damages, and attorneys' fees and costs.

         II. Legal Standard

         Federal Rule 8(a) requires a complaint to include “a short and plain statement of the claim … showing entitle[ment] to relief.” Fed.R.Civ.P. 8(a)(2). To overcome a motion to dismiss under Federal Rule 12(b)(6), a complaint must also be plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546 (2007). This standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotations and citations omitted). 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) (internal quotations and citation omitted). Facial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

         Accepting the factual allegations in the complaint as true (even when doubtful), the allegations “must be enough to raise a right to relief above the speculative level ….” Twombly, 550 U.S. at 555 (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should … be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal quotations and citations omitted). Finally, “[a]lthough for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted).

         III. Discussion

         In its motion to dismiss, Defendant argues that the common law tort causes of action must be dismissed because they merely recite the same allegations contained within the claimed violations of the WVCCPA. See Def.'s Mem. in Supp., ECF No. 26, at 3. Defendant requests this Court to dismiss Counts II and III based on the Supreme Court of Appeals of West Virginia's analysis in Casillas v. Tuscarora Land Co., 412 S.E.2d 792 ( W.Va. 1991). In Casillas, the defendant asserted that the WVCCPA barred the allegations of common law negligence and fraud. 412 S.E.2d at 793. The trial judge agreed and granted a directed verdict for the defendant. Id. The state supreme court held that the WVCCPA “does not preclude claims brought at common law against assignees, holder, or lenders.” Id. at 795. Rather, a plaintiff can make a separate common law tort claim against a defendant as long as the cause of action “exist[s] separate from the Act.” Id.

         Courts in the Southern District of West Virginia have interpreted the Casillas holding to mean that a plaintiff must make a common law tort claim separate from the WVCCPA in the complaint. See Bailey v. Branch Banking & Tr. Co., Civ. No. 3:10-0969, 2011 WL 2517253, at *3 (S.D. W.Va. June 23, 2011) (“In Casillas, the court made it abundantly clear that a plaintiff may maintain both claims both under the WVCCPA and common law.”). This does not mean, however, that the causes of action must be based upon different facts. In Pemberton v. U.S. Bank, District Judge Irene C. Berger reaffirmed Casillas's requirement that common law claims must be separate from the WVCCPA claims but also determined that “a plaintiff's WVCCPA and common law claims can clearly be based on the same or similar facts.” Civ. No. 5:11-cv-00630, 2012 WL 37113, at *3 (S.D. W.Va. Jan. 5, 2012); see also Bailey, 2011 WL 2517253, at *3 (“Indeed, this Court appreciates that the factual predicate for both WVCCPA and common law claims involving debt collection practices will likely be substantially similar in most cases.”). The fact that the separate causes of action rely on the same factual allegations does not prevent both claims from being brought. “Neither the WVCCPA nor Casillas makes a consumer choose between the two” causes of action. Bailey, 2011 WL 2517253, at *3. “The words ‘direct' and ‘separate' [in Casillas] … merely mean[] the plaintiff must make ‘direct' and ‘separate' claims in the complaint.” Id.

         Therefore, this Court follows the line of cases from this district that analyze the alleged causes of action to determine whether they state a claim separate from the WVCCPA. This analysis does not preclude a common law claim if it involves the same underlying facts as a WVCCPA violation. Rather, this Court must determine whether the common law tort states a separate cause of action based on the factual allegations and elements required under each tort. See, e.g., Rabel v. Huntington Nat'l Bank, Civ. No. 2:14-cv-25818, 2015 WL 3540660, at *15 (S.D. W.Va. June 4, 2015) (IIED claim failed to claim defendant's conduct as outrageous but invasion of privacy claim could be sustained); Wrenn v. Bank of Am. Home Loans, LP, Civ. No. 5:12-cv-01169, 2013 WL 369611, at *5-6 (S.D. W.Va. Jan. 30, 2013) (sustaining IIED and invasion of privacy claims but dismissing NIED for lack of factual allegations); Blackburn v. Consumer Portfolio Servs., Inc., Civ. No. 2:11-cv-00401, 2012 WL 1679796, at *3 (S.D. W.Va. May 14, 2012) (finding no duty alleged to sustain claim for negligence but enough factual allegations to support IIED claim); Nowlan v. JP Morgan Chase Bank, N.A., Civ. No. 2:11-cv-00404, 2012 WL 1029315, at *6 (S.D. W.Va. Mar. 26, 2012) (dismissing negligence claim for failing to allege special relationship to satisfy duty element); and Daniels v. JP Morgan Chase & Co., Civ. No. 2:11-cv-00045, 2011 WL 2489938, at *3 (S.D. W.Va. June 21, 2011) (analyzing negligence elements separately from WVCCPA claim).

         a. Count II: Intentional Infliction of Emotional Distress

          In West Virginia, the tort for IIED or outrage was first recognized in Harless v. First National Bank in Fairmont. 289 S.E.2d 692 ( W.Va. 1982). A claim for IIED allows a plaintiff to recover damages “for emotional distress arising out of extreme and outrageous conduct intentionally or recklessly caused by the defendant.” Id. at 703. A defendant's conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” for liability to be found. Tanner v. Rite Aid of West Virginia, Inc., 461 S.E.2d 149, 157 ( W.Va. 1995) (quoting Rest. (Second) of Torts § 46(1) Comment (d) (1965)). To allege a successful IIED claim, the plaintiff must establish four elements: (1) that the defendant's conduct was atrocious and intolerable; (2) “that the defendant acted with the intent to inflict emotional distress, or acted recklessly”; (3) that the plaintiff ...

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