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Memorandum Order PA

Memorandum Order PA

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Published by Carrieonic

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Published by: Carrieonic on May 23, 2012
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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIAMURRAY H. KIMMEL, et al. :CIVIL ACTION:v. ::PHELAN HALLINAN & :SCHMIEG, PC, et al. :NO. 11-2596MEMORANDUMDalzell, J.February 28, 2012Plaintiffs Murray H. and Dolores T. Kimmel(collectively, “the Kimmels”) bring suit against defendantsPhelan Hallinan & Schmieg, PC (“PHS”), Deutsche Bank NationalTrust Company (“Deutsche Bank”), and America’s Servicing Co.(“ASC”), alleging federal law violations of the Fair DebtCollection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.,and the Racketeering Influenced and Corrupt Organizations Act(“RICO”), 18 U.S.C. § 1961, et seq., as well as state lawviolations of the Pennsylvania Fair Credit Extension UniformitiesAct (“FCEUA”), 73 Pa. Cons. Stat. § 2270.1, et seq., thePennsylvania Unfair Trade Practices and Consumer Protection Law(“UTPCPL”), 73 Pa. Cons. Stat. § 201-1, et seq., and common lawclaims for fraud and negligent misrepresentation. The Kimmels’suit arises out of efforts by defendants to collect a debt theKimmels allegedly owed on a mortgage and note for a propertylocated in Brigantine, New Jersey.
Defendant PHS filed a motion to dismiss this action forimproper venue, to which ASC and Deutsche Bank added a motion todismiss for failure to state a claim that PHS later joined. The
Kimmels responded to these motions and we have entertainedsupplemental briefing so that the motions are now ripe fordisposition. For the reasons described below, we will deny PHS’smotion to dismiss for improper venue and grant in part ASC andDeutsche Bank’s motion to dismiss for failure to state a claim.We will afford the Kimmels a limited opportunity to amend theircomplaint to remedy some of the deficiencies we identify here.
I.Factual Backgroun
In considering a motion to dismiss for failure to statea claim under Fed. R. Civ. P. 12(b)(6), we must “‘accept all
factual allegations in the complaint as true and give the pleaderthe benefit of all reasonable inferences that can be fairly drawntherefrom.’” Ordonez v. Yost, 289 Fed. Appx. 553, 554 (3d Cir.2008) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993)). We may “‘consider only allegations in the complaint,See PHS's Supplemental Brief (docket no. 10) at 2,
note 1.We rehearse the standard applicable to a motion to
dismiss for improper venue in Section II.A below.2
exhibits attached to the complaint, matters of public record, anddocuments that form the basis of a claim,’” Brown v. Daniels, 128Fed. Appx. 910, 913 (3d Cir. 2005) (quoting Lum v. Bank ofAmerica, 361 F.3d 217, 222 n.3 (3d Cir. 2004)), where a documentforms the basis of a claim if it is “integral to or explicitlyrelied upon in the complaint.” In re Burlington Coat FactorySec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)) (emphasis andinternal quotation marks omitted). As our Court of Appeals hasexplained, this means that we may “consider an undisputedlyauthentic document that a defendant attaches as an exhibit to amotion to dismiss if the plaintiff’s claims are based on thedocument.” Pension Benefit Guar. Corp. v. White Consol. Indus.,Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).According to the Kimmels, they both reside inHuntington Valley, Pennsylvania. PHS, which handles debtcollection matters, has its headquarters in New Jersey. DeutscheBank and ASC handle debt collection matters at their headquartersin South Carolina. Pls.’ Compl. ¶¶ 6, 8-10. The Kimmels allege,conclusorily, that they are “consumers” and the defendants are“debt collectors” under the FDCPA, and that the defendants soughtto collect “consumer debt” from the Kimmels. Id. ¶¶ 7, 11.3

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