United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
filed the present Complaint in the Circuit Court of Cabell
County, West Virginia on April 13, 2017. ECF No. 1-1. After
it was served on October 30, 2017, Defendant removed this
action to this Court on November 17, 2017. ECF No. 1. Now
pending before the Court is Defendant's Motion to
Dismiss. ECF No. 7. For reasons specified herein,
Defendant's Motion is DENIED.
case arises out of an alleged debt owed by Plaintiffs to
Defendant. ECF No. 1-1. Plaintiffs allege that, after they
fell into arrears upon that alleged debt, Defendant attempted
to collect on the debt by placing telephone calls and sending
letters to Plaintiffs. Id. Plaintiffs allege that,
in addition to the written communications, Defendant often
called Plaintiffs multiple times per day. Id.
allege that, “[a]s a result of the high volume of
collection activities by Defendant, ” they retained
legal counsel on or around March 25, 2013. Id.
Plaintiffs further allege that they notified Defendant on or
around April 16, 2013 that they had retained legal counsel
and provided Defendant with the name and contact information
for their attorney. Id. Despite this notification,
however, Plaintiffs allege that Defendant continued to call
them directly to collect on the debt. Id. Plaintiffs
allege that, as a result of Defendant's continued
contact, they suffered annoyance, worry and aggravation.
result of this alleged conduct, Plaintiffs' Complaint
identifies three legal claims for relief: (1) violations of
the West Virginia Consumer Credit and Protection Act
(“WVCCPA”), (2) intentional infliction of
emotional distress (“IIED”), and (3) common law
invasion of privacy. ECF No. 1-1. Defendant now asks the
Court to dismiss all three claims in their entirety, arguing
that Plaintiffs have failed to satisfy the federal pleading
standards as to their WVCCPA claims and that the statutes of
limitations have expired as to their IIED and invasion of
privacy claims. ECF No. 8. Defendant further argues that
defective service should render Plaintiffs' claims
survive a motion to dismiss, a plaintiff's complaint must
contain “a short and plain statement of the claim
showing that [he] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The facts contained in the statement need not be
probable, but the statement must contain “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In
considering the plausibility of a plaintiff's claim, the
Court must accept all factual allegations in the complaint as
reasons specified herein, the Court finds that all three of
Plaintiffs' claims are sufficiently plead such that they
should not be dismissed at this time.
Plaintiffs first claim that Defendant violated the WVCCPA,
Sections 128(e), 125, and 125(d). The Court will address each
alleged violation in turn.
claim that Defendant violated West Virginia Code Section
46A-2-128(e) “by communicating with the Plaintiffs
after the Defendant[ ] knew the Plaintiffs were represented
by an attorney . . .” ECF No. 1-1, at 6. Defendant
argues that this claim should be dismissed because, pursuant
to the statute as it is currently written, Plaintiffs were
required to provide Defendant with written notice that they
were represented by counsel. ECF No. 8, at 5. In their
Complaint, Defendant argues, Plaintiffs only allege that they
provided Defendant with verbal notice. ECF No. 8, at 5.
Defendant asserts that because Plaintiffs do not allege that
they provided Defendant with written notice of legal
representation, their claims must fail. Id.
allege that they provided Defendant with notice of
representation on April 16, 2013. At ...