United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION
H. Hennessy United States Magistrate Judge
me by way of referral, see Docket #29, is the motion
of Defendant Cavalry SPV I, LLC (“Cavalry”) to
dismiss the complaint in this action for lack of
subject-matter jurisdiction, Docket #19. Cavalry argues that
Plaintiff Abigail Oyola lacks standing to pursue her claims
and also contends this case is moot. See Docket #20.
Plaintiff has opposed the motion, see Docket #28,
and Cavalry has submitted a reply, see Docket #31.
In light of the parties' submissions, and for the reasons
that follow, I find that Plaintiff has standing to prosecute
this action, find that the case is not moot, and RECOMMEND
that the Court DENY Cavalry's motion to dismiss.
accuses Cavalry and five unknown individuals named as John
Does 1-5 of violating the federal Fair Debt
Collection Practices Act (the “FDCPA”),
Massachusetts Debt Collection Practices Act, and
Massachusetts Consumer Protection Act, as well as committing
conversion. See generally Docket #1. Her complaint
alleges as follows.
contends that Cavalry is a “debt collector” as
defined in the federal and Massachusetts Debt Collection
Practices Acts. Id. ¶ 6. In December 2007,
Cavalry purchased a defaulted debt that Plaintiff owed on a
personal credit card. Id. ¶¶ 12-13. In
April 2009, Cavalry filed a collection action against
Plaintiff in Worcester District Court in an effort to collect
this debt, id. ¶ 14; but Cavalry was not
legally entitled to file that lawsuit because it had failed
to register with the Secretary of the Commonwealth, as all
limited liability companies foreign to Massachusetts must do
to access the Massachusetts courts, id. ¶¶
15-17 (citing Mass. Gen. Laws ch. 156C §§ 48,
54(a)). Further, Cavalry was not (and still is not) licensed
to operate as a debt collector in Massachusetts. Id.
to Plaintiff, Cavalry “purported to serve her”
with process of this first debt collection suit at an address
from which Plaintiff had been evicted six months earlier.
Id. ¶ 21. Plaintiff never received process and
thus defaulted in December 2009, resulting in a default
judgment of $14, 947.30 in Calvary's favor. Id.
¶ 22. Cavalry later filed a second, post-judgment
proceeding in February 2010 in an effort to collect that
judgment. Id. ¶ 23. Cavalry again served
process at Plaintiff's former address, this time around
eighteen months after Plaintiff's eviction. Id.
When Plaintiff, who again did not know about Cavalry's
legal action, failed to appear, a civil warrant for her
arrest issued. Id.
in April 2014, Cavalry filed a third action against
Plaintiff, this time a post-judgment trustee process action.
Id. ¶ 24. Again Cavalry served process on
Plaintiff's former address, at this point obsolete by
around three years, and again Plaintiff did not receive
process and thus did not know about the suit. Id.
After Plaintiff failed to appear in this third action, a
judge entered an order authorizing Cavalry to garnish
Plaintiff's wages. Id. Plaintiff did not learn
of Cavalry's three lawsuits until 2017 and retained
counsel at that time. Id. ¶ 26.
to the garnishment order, Cavalry garnished Plaintiff's
wages from August 2014 through April 2017 in a total amount
of $6, 498.21. Id. ¶ 25. Further,
Plaintiff's opposition brief accuses Cavalry of
continuing to garnish Plaintiff's wages after the instant
federal lawsuit was filed in a total additional amount of $1,
064.34. See Docket #26 at 2; see also
Docket #1 ¶ 29. Plaintiff's paystubs offered no
information about these subtractions aside from a general
notation that they effected a “garnishment.”
Docket #1 ¶ 26. Plaintiff did not know what the
garnishment was for or to whom it was being paid, and she
incorrectly assumed that one of around five other creditors
who also had obtained judgments against her was responsible
for it. Id.
explicitly alleges that she “has incurred actual
damages as a result of Cavalry's actions.”
Id. ¶ 27. These actual damages include the
default judgment against her and the civil warrant for her
arrest, both of which issued without her knowledge, as well
as the loss of significant income throughout the multi-year
period when Cavalry garnished her wages. Id. The
complaint elaborates that Calvary's garnishment rendered
Plaintiff too destitute to afford food: “If she was
unable to obtain supplies from a local food pantry, then she
and her family went hungry.” Id. Plaintiff
also often could not afford to pay her bills; her credit
score decreased; and creditors repossessed her car, leaving
her without transportation. Id. Cavalry's
actions also allegedly caused Plaintiff emotional distress
including lost sleep and significant stress and anxiety.
has responded to Plaintiff's allegations with factual
representations of its own. According to a declaration
appended to Cavalry's opening brief,  the 2009 default
judgment against Plaintiff was vacated in April 2017, at
which time Cavalry's counsel voluntarily dismissed
Cavalry's garnishment action and “promptly issued a
refund to Plaintiff on Cavalry's behalf for the full
amount that had been garnished.” Docket #20 at 4;
see Docket #22-1 ¶¶ 4-6; see also
Docket #20-1 at 4-5 (Cavalry's refund check and
accompanying paperwork). The declaration further states that
Cavalry's attorney contacted Plaintiff's employer and
its payroll company to alert them of the garnishment
action's voluntary dismissal. Docket #22-1 ¶ 7.
Despite this, Plaintiff's wages continued to be
garnished-but Cavalry's attorney immediately forwarded to
Plaintiff's counsel any garnishment checks from
Plaintiff's wages that Cavalry received. Id.
¶ 7. While Cavalry admits to having garnished a total of
$7, 532.55 from Plaintiff's wages, it submits that this
sum already has been returned to Plaintiff and that Plaintiff
therefore already has been made whole. Id. ¶ 8;
Docket #20 at 4.
response, Plaintiff's opposition brief avers that
Cavalry's efforts to fully repay Plaintiff were
unsuccessful. On Plaintiff's telling, Cavalry has sent
her only $6, 498.21 in depositable funds of the $7, 562.55
it has taken from her wages, leaving an unpaid balance of $1,
064.34. Docket #26 at 2. Checks totaling this amount that
were forwarded from Cavalry to Plaintiff's attorney after
this lawsuit began allegedly have arrived unendorsed and made
payable only to Cavalry's own attorneys. Id.
Plaintiff says she therefore has proven unable to negotiate
those checks and her bank has instructed that the checks
would have to be reissued in her attorney's name in order
for her attorney to deposit them into his IOLTA account.
Id.; see id. at 16.
offers three legal arguments for dismissing this case for
lack of subject-matter jurisdiction. First, it submits that
it has fully repaid Plaintiff all the money it garnished from
her wages, rendering Plaintiff without standing and mooting
this case. Docket #20 at 5. Second, Cavalry casts
Plaintiff's allegations of emotional and consequential
damages as “threadbare” and thus insufficient to
confer standing to maintain this action. Id. And
third, Cavalry urges that Plaintiff's federal statutory
causes of action also do not confer standing here.
motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) is appropriate when the plaintiff
lacks standing to bring the claim.” Oum v. Wells
Fargo, N.A., 842 F.Supp.2d 407, 411 (D. Mass. 2012),
abrogated on other grounds by Culhane v. Aurora Loan
Servs. of Neb., 708 F.3d 282 (1st Cir. 2013) (quoting
Edelkind v. Fairmont Funding, Ltd., 539 F.Supp.2d
449, 453 (D. Mass. 2008)). Courts assess such motions using
the familiar standard applicable to motions filed under
Federal Rule of Civil Procedure 12(b)(6): a complaint's
well-pleaded facts must be credited as true, and all
reasonable inferences from the complaint must be drawn in the
plaintiff's favor. See, e.g., Kerin v.
Titeflex Corp, 770 F.3d 978, 981 (1st Cir. 2014);
Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir.
2012) (citing Nisselson v. Lernout, 469 F.3d 143,
150 (1st Cir. 2006)); Igartua v. United States, 86
F.Supp.3d 50, 53 (D.P.R. 2015) (citing Negron-Gaztambide
v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994)).
However, a party's “bald assertions, unsupportable
conclusions, periphrastic circumlocutions, and the
like” merit no assumption of truth. Centro Medico
del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
5-6 (1st Cir. 2005) (quoting Aulson v. Blanchard, 83
F.3d 1, 3 (1st Cir. 1996)); see Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). Unlike in a Rule 12(b)(6) motion,
when determining whether subject-matter jurisdiction lies,
the Court may look beyond the pleadings to “whatever
evidence has been submitted.” Aversa v. United
States, 99 F.3d 1200, 1210 (1st Cir. 1996). “The
party seeking to invoke the federal court's
jurisdiction-normally, the plaintiff- bears the burden”
of establishing it. Osediacz v. City of Cranston,
414 F.3d 136, 139 (1st Cir. 2005) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Article III Standing
Constitution constrains the federal courts' jurisdiction
to “cases and controversies” only. U.S. Const.
Art. III, § 2. Within this limitation lies the concept
of standing, which requires a plaintiff to satisfy certain
requirements in order for a federal court to hear his or her
case. Article III standing includes both constitutional and
prudential criteria; but Cavarly's arguments focus only
on its constitutional components. See Docket #20 at
5. Those components are: first, the plaintiff must allege an
“injury in fact”; second, that injury must be
fairly traceable to the defendant; and third, the injury must
likely be redressable by a favorable judicial decision.
E.g., Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (citing Lujan, 504 U.S. at 560-61;
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
528 U.S. 167, 180-81 (2000)).
party asserting standing, here the plaintiff, bears the
burden of establishing it. E.g., id.
(citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231
(1990)). And when, as here, a standing challenge arises at
the pleading stage, “the plaintiff must ‘clearly
. . . allege facts demonstrating'” each of
standing's elements. Id. (quoting Warth v.
Seldin, 422 U.S. 490, 518 (1975)). This means
“[t]he facts necessary to support standing must clearly
appear in the record and ‘cannot be inferred
argumentatively from averments in the pleadings.'”
United States v. AVX Corp., 962 F.2d 108, 115 (1st
Cir. 1992) (quoting FW/PBS, 493 U.S. at 231) (noting
that “where standing is at issue, heightened
specificity is obligatory at the pleading stage”). That
said, standing typically poses a low bar and is
“readily found” when challenged. 13A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3531.4 (3d ed. 1998) (Apr.
2017 Supp.) (collecting cases).
Article III standing arguments implicate the first two
constitutional requirements, namely, injury in fact and
causation. The first prong-injury in fact-requires
“‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Spokeo, 136 S.Ct. at 1548
(quoting Lujan, 504 U.S. at 560). More precisely, to
demonstrate standing, “a plaintiff need only show that
she has ‘a colorable claim'” of such an
invasion-anything more goes to the merits of the
plaintiff's claim, not the plaintiff's standing to
raise the claim in the first place. Merrimon v. Unum Life
Ins. Co., 758 F.3d 46, 52-53 (1st Cir. 2014) (quoting
Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d
1018, 1024 (7th Cir. 2006)). The U.S. Supreme Court has
described a sufficiently “particularized” injury
using labels including “personal, ”
“distinct, ” and “not
‘undifferentiated.'” Spokeo, 136
S.Ct. at 1548 (first quoting Lujan, 504 U.S. at 560
n.1, and DiamlerChrysler Corp. v. Cuno, 547 U.S.
332, 342 (2006); then quoting Whitmore v. Arkansas,
495 U.S. 149, 155 (1990); and then quoting United States
v. Richardson, 418 U.S. 166, 177 (1974)). And a
“concrete” injury is one that is “de facto,
” meaning that it “actually exist[s]” and
is thus “‘real, ' and not
‘abstract.'” Id. (quoting
Webster's Third New International Dictionary 472 (1971))
(citing Black's Law Dictionary 479 (9th ed. 2009)). A
plaintiff's injury must be both particularized and
concrete in order for the injury in fact requirement to be
satisfied. E.g., id. at 1548.
economic injury is a paradigmatic injury in fact typically
sufficient to establish Article III standing. See
Czyzewski v. Jevic Holding Corp., 137 S.Ct. 973, 983
(2017) (citing McGowan v. Maryland, 366 U.S. 420,
430-31 (1961)) (“For standing purposes, a loss of even
a small amount of money is ordinarily an
‘injury.'”); Danvers Motor Co. v. Ford
Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (Alito, J.)
(quoted by 13A Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure
§ 3531.4 (3d ed.) (Apr. 2017 Supp.)) (“While it is
difficult to reduce injury-in-fact to a simple formula,
economic injury is one of its paradigmatic forms.”);
San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d
1121, 1130 (9th Cir. 1996) (“Economic injury is clearly
a sufficient basis for standing.”); Katz, 672
F.3d at 76 (quoting Adams v. Watson, 10 F.3d 915,
924 (1st Cir. 1993)) (“It is a bedrock proposition that
‘a relatively small economic loss-even an
‘identifiable trifle'-is enough [to be an injury in
fact] . . . .”). Additionally, “emotional upset
is a relevant consideration” when assessing standing
“in a damages action.” City of Los Angeles v.
Lyons, 461 U.S. 95, 107 n.8 (1983).
a plaintiff's injury also must be “fairly traceable
to the defendant” in order to establish standing.
E.g., Spokeo, 136 S.Ct. at 1547 (citations
omitted). In general terms, this means a plaintiff must
“show a sufficiently direct causal connection, which
‘cannot be overly attenuated, ' between the
challenged action and the identified harm.”
Williams v. Puerto Rico, 910 F.Supp.2d 386, 390
(D.P.R. 2012) (quoting Donahue v. City of Boston,304 F.3d 110, 115 (1st Cir. 2002)). The causal chain on which
a plaintiff's allegations rest must amount to
“something more than an ingenious academic exercise in
the conceivable.” Adams, 10 F.3d at 922
(quoting United States v. Students Challenging Regulatory
Agency Procedures, 412 U.S. 669, 689 ...