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Ross v. Huron Law Group West Virginia, PLLC

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

February 14, 2019

VICKI ROSS, Plaintiff,



         Pending before the Court is the Motion to Dismiss the Amended Complaint filed by Defendants Huron Law Group West Virginia, PLLC; Huron Law Group, PLLC; GRT Financial, Inc.; and Zero Debt, LLC (collectively “Named Defendants”). ECF No. 19. For the foregoing reasons, the Court GRANTS IN PART the Named Defendants' motion, DISMISSES Count One as it pertains to Named Defendants, and DENIES IN PART for the remainder.

         I. BACKGROUND

         Plaintiff filed the Class Action Complaint with the Court on January 10, 2018. Compl., ECF No. 1. Named Defendants responded on April 6, 2018 with a Motion to Dismiss. ECF No. 11. Thereafter, Plaintiff filed a First Amended Class Action Complaint on April 19, 2018. Am. Compl., ECF No. 17. In the Amended Complaint, Plaintiff alleges Named Defendants procured a consumer report on her and improperly used information in the report to determine her eligibility for debt consolidation services, and solicit her for the same. Am. Compl., ¶¶ 24-55.

         The alleged collaborative process which led to the mailers is as follows: First, Plaintiff claims Doe Corporation I (“Doe I”) allegedly prepared information which constitute a “consumer report” under the Fair Credit Reporting Act (“FCRA”). Id. ¶ 35. Doe I then sold these consumer reports to Doe Corporation II (“Doe II”), and Doe II used this information to compile lists to resell to other businesses, including Named Defendants. Id. ¶¶ 22-23. Companies, including Named Defendants, then used this information to assess the potential eligibility for debt consolidation services by identifying consumers who maintain high credit balances and targeted them in a “joint venture to advertise and sell debt consolidation services.” Id. ¶¶ 24, 29-32, 40-41.

         The Amended Complaint raises three claims under the FCRA, including that (Count 1) Doe I and Doe II furnished Plaintiff's consumer report to Named Defendants for an impermissible purpose and that (Count 2) Doe II and (Count 3) Named Defendants accessed and used Plaintiff's consumer report without properly certifying a permissible purpose, under false pretenses, and without a permissible purpose. Id. ¶¶ 77-90. Plaintiff further purports to represent a class of similarly situated persons, under Rule 23 of the Federal Rules of Civil Procedure. Id. ¶ 71.


         The motion to dismiss putative nonresident class members for lack of personal jurisdiction is evaluated under Fed.R.Civ.P. 12(b)(2). “When a district court considers a question of personal jurisdiction based on the contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima facie showing in support of its assertion of jurisdiction.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558, 560 (4th Cir. 2014). In conducting its analysis, “the district court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Id. at 558.

         “A federal district court may only exercise personal jurisdiction over a [nonresident defendant] if such jurisdiction is authorized by the long-arm statute of the state in which it sits and application of the long-arm statute is consistent with the due process clause of the Fourteenth Amendment . . . .” Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009); see also Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014). “Because the West Virginia long-arm statute is coextensive with the full reach of due process, . . . the statutory inquiry necessarily merges with the Constitutional inquiry.” In re Celotex Corp., 124 F.3d 619, 627-28 (4th Cir. 1997) (citations omitted).

         To comport with this due process requirement, a district court may exercise specific personal jurisdiction over a defendant only if he has “sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Consulting Engineers Corp., 561 F.3d at 277 (internal quotation marks omitted). This inquiry “focuses on the relationship among the defendant, the forum, and the litigation.” Walden, 134 S.Ct. at 1121 (internal quotation marks omitted). Thus, a court must focus upon “contacts that the defendant himself creates” and only such contacts “with the forum State itself, not [merely] the defendant's contacts with persons who reside there.” Id. at 1122 (internal quotation marks omitted). A court must do “more than formulaically count contacts, instead taking into account the qualitative nature of each of the defendant's connections to the forum state.” Tire Eng'g & Distribution, LLC v. Shandong Linglong Rubber Co., Ltd., 682 F.3d 292, 301 (4th Cir. 2012). Thus, “a single act by a defendant can be sufficient to satisfy the necessary quality and nature of such minimal contacts, although casual or isolated contacts are insufficient to trigger an obligation to litigate in the forum.” Id. (internal quotation marks omitted).

         The motion to dismiss for failure to state a claim is evaluated under the Fed.R.Civ.P. 12(b)(6) standard. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court stated courts must look for “plausibility” in the complaint. 550 U.S. at 555. 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. (internal quotation marks and citations 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 . . . .” Id. (citations omitted).

         In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court reiterated that Rule 8 does not demand “detailed factual allegations[.]” 556 U.S. at 678 (internal quotation marks and citations omitted). However, a mere “unadorned, the-defendant-unlawfully-harmed-me accusation” is insufficient. Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). 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 Supreme Court continued by explaining that, although factual allegations in a complaint must be accepted as true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court's own judicial experience and common sense. Id. at 679. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.


         In the Motion to Dismiss the Amended Complaint, Named Defendants state dismissal is merited on three grounds. Named Defendants argue (1) a lack of personal jurisdiction, (2) a failure to sufficiently allege any claim under the FCRA, and (3) a failure to allege any action by Named Defendants to sufficiently state a claim against them in Count One of the ...

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