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Marino v. Ocwen Loan Servicing LLC

United States District Court, D. Nevada

August 25, 2017

VALERIE MARGARET MARINO, individually and on the behalf of others similarly situated, Plaintiff,




         This case concerns a loan servicer's alleged violations of the Telephone Consumer Privacy Act (“TCPA”). Before the Court is Defendant's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim (“Motion”). (ECF No. 19.) The Court has reviewed Plaintiff's response (ECF No. 27), as well as Defendant's reply (ECF No. 31).

         For the reasons discussed below, Defendant's Motion is denied.


         Plaintiff Valerie Margaret Marino filed her class action Complaint on September 8, 2016 against Defendant Ocwen Loan Servicing LLC. (ECF No. 1.) The following facts are taken from the Complaint.

         Plaintiff filed Chapter 7 bankruptcy on March 15, 2013 in the bankruptcy court for the District of Nevada. Her debt, including a home loan serviced by Defendant, was discharged on June 18, 2013. (Id. at 2.) Plaintiff generally alleges that Defendant violated the TCPA by making calls to her cellular telephone number (“cell phone”) using an automatic telephone dialing system (“autodialer”) and did so without her consent by making these calls after the bankruptcy court issued its order discharging her mortgage debt (“discharge order”). She brings this action on behalf of other individuals who have also had home loans serviced by Defendant discharged through bankruptcy proceedings only to have Defendant subsequently call these individuals without their prior express consent. (Id. at 4-5.) Plaintiff states that she and the class members were damaged by Defendant's TCPA violations because “their privacy was improperly and illegally invaded, ” and because these calls were annoying and interrupting, and required them to take time and effort to receive the calls or retrieve them from voicemail, which also made their cell phones unavailable during the time these calls occurred. (Id. at 3.)

         Plaintiff, on behalf of herself and class members, requests both injunctive relief and statutory damages, as well as treble damages under 47 U.S.C. § 227(b)(3). (ECF No. 1 at 7.)


         Defendant seeks dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that this Court lacks subject matter jurisdiction because Plaintiff fails to meet the requirements of constitutional standing and that Plaintiff's claims are barred by the doctrine of res judicata. The Court disagrees as to both arguments.

         A. Standing

         A motion to dismiss under Rule 12(b)(1) challenges the district court's subject matter jurisdiction. A district court lacks subject matter jurisdiction where the plaintiff fails to meet the requirements of Article III standing. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121-22 (9th Cir. 2010).

         “Article III of the Constitution limits federal-court jurisdiction to ‘Cases' and ‘Controversies.'” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). The party invoking federal jurisdiction bears the burden of establishing these elements. FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990). On a motion to dismiss under Rule 12(b)(1), “general factual allegations of injury resulting from the defendant's conduct may suffice, ” as the court presumes that general allegations in the complaint “embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (internal quotation marks and citation omitted).

         Defendant argues that the Complaint “makes clear” Plaintiff's alleged injuries were not caused by Defendant's conduct because her alleged injuries would have occurred had Defendant dialed her manually as opposed to with an autodialer. (ECF No. 19 at 8-11.) Plaintiff alleges that after her loan was discharged in bankruptcy, Defendant continued to call her without her prior express consent through the use of an autodialer. (ECF No. 1 at 2-3.) She contends that she and other class members were injured because these calls invaded their privacy and caused a loss of use of their cell phones, the loss of time it ...

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