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Alper v. Select Portfolio Servicing, Inc.

United States District Court, D. Massachusetts

July 19, 2019

ALLEN ALPER and DONNA HERNANDEZ, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SELECT PORTFOLIO SERVICING, INC., Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiffs Allen Alper (“Alper”) and Donna Hernandez (“Hernandez”) (collectively, “Plaintiffs”) have filed this putative class action lawsuit against Defendant Select Portfolio Servicing, Inc. (“SPS”) alleging violations of Mass. Gen. L. c. 93A, § 2 and 940 C.M.R. § 7.04. D. 9. Plaintiffs have moved to remand the matter to state court, D. 12, and SPS has moved for partial dismissal as to Plaintiff Alper, D. 14. For the reasons stated below, the Court DENIES Plaintiffs' motion for remand, D. 12, and DENIES SPS's partial motion to dismiss, D. 14.

         II. Standard of Review

         A. Motion to Dismiss

         On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole, ” the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” García-Catalán, 734 F.3d at 103 (citation omitted).

         B. Motion for Remand

         Upon the filing of a motion to remand, the Court must assess whether it “would have had original jurisdiction of the case had it been filed in [this] court.” BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., IAMAW Dist. Lodge 4, 132 F.3d 824, 832 (1st Cir. 1997) (quoting Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702 (1972)) (internal quotation mark omitted). When a plaintiff files an action in state court and the defendant responds by invoking federal jurisdiction through removal, the defendant has the burden of establishing that removal to the district court is proper. Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). The defendant “must . . . make a ‘colorable' showing that a basis for federal jurisdiction exists.” Id. (quoting BIW Deceived, 132 F.3d at 832). “Generally, [d]oubts about the propriety of removing an action should be resolved in favor of remand.” Miara v. First Allmerica Fin. Life Ins. Co., 379 F.Supp.2d 20, 26 (D. Mass. 2005) (citation omitted).

         III. Factual Background

         A. Motion to Dismiss

          The following facts are drawn from Plaintiffs' amended complaint, D. 9, and are taken as true for the purposes of resolving the motion to dismiss.

         Alper incurred debt in the form of a home mortgage loan at some point during or prior to 2017. D. 9 ¶ 8; see D. 9 ¶¶ 11, 13. In or around 2017, SPS began calling Alper's cellular telephone in an attempt to collect Alper's debt. D. 9 ¶ 11. Alper's debt was more than thirty days past due at that time. D. 9 ¶ 13. Throughout 2017 and the beginning of 2018, on average, SPS called Alper eight times over a seven-day period to try to collect his debt. D. 9 ¶ 14. Alper found the calls to be an invasion of his privacy and caused him to suffer anger, anxiety, emotional distress, fear, frustration and embarrassment. D. 9 ¶¶ 16-17. He wasted time and energy tending to SPS's calls. D. 9 ¶ 18.

         Hernandez incurred debt in the form of a home mortgage loan, either during or prior to 2015. D. 9 ¶ 19; see D. 9 ¶¶ 22, 25. Throughout 2015, SPS called Hernandez's residential telephone in an attempt to collect her debt. D. 9 ¶ 22. At the time of the calls, Hernandez's debt was more than thirty days past due. D. 9 ¶ 25. SPS called Hernandez more than twice within a seven-day period. D. 9 ¶ 26. For example, in 2015, SPS called Hernandez more than twice during the last week of March 2015 and during each week of April 2015. D. 9 ¶ 27. The calls continued despite Hernandez's request to SPS that they cease calling her. D. 9 ¶ 28. Hernandez, like Alper, found the calls to be an invasion of her privacy and caused her to suffer anger, anxiety, emotional distress, fear, frustration and embarrassment. D. 9 ¶¶ 30-31. She wasted time and energy tending to SPS's calls. D. 9 ¶ 32.

         B. Mot ...


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