United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
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.
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.
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.
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).
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).
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.
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.”
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).
Count II: Intentional Infliction of Emotional
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