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Waugh v. Elan Financial Service

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

June 13, 2018

THOMAS WAUGH and KIMBERLY WAUGH, Plaintiffs,
v.
ELAN FINANCIAL SERVICE and/or CARDMEMBER SERVICES, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         I. Background

         This 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.

         Plaintiffs 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. Id.

         As a 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 dismissed. Id.

         II. Legal Standard

         To 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 true. Id.

         III. Discussion

         For 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.

         a. WVCCPA Claims

          Plaintiffs first claim that Defendant violated the WVCCPA, Sections 128(e), 125, and 125(d). The Court will address each alleged violation in turn.

         i. Section 128(e)

         Plaintiffs 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.

         Plaintiffs allege that they provided Defendant with notice of representation on April 16, 2013. At ...


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