BARKER v. CAPITAL ONE (2025)

ORDER

PLAINTIFFS bring an action against Defendant Capital One, N.A., (“Capital One”) under the Florida Consumer Collection Practices Act (“FCCPA”). Plaintiffs allege that sometime during 2022 to 2024, Capital One violated the FCCPA when it sent each Plaintiff an email about their credit card balance from the hours of 10:00 PM to 11:30 PM and 6:30 AM to 8:00 AM. (1st Am. Compl., (DE [12]), ¶¶ 14, 48, 75, 109, 136) (“FAC”). Capital One only sent one email to each Plaintiff. See generally (DE [12]).

Capital One moves to dismiss Plaintiffs’ First Amended Complaint, arguing that (i) this Court lacks subject matter jurisdiction as the amount in controversy does not exceed $75,000; (ii) Plaintiffs cannot bring a claim under the FCCPA since the consumer agreements are guided by Virginia law; (iii) even if Florida law applied, the communications are not actionable under the FCCPA; and (iv) Plaintiffs lack standing to bring this action. See (Def.’s 2d Am. Mot. Dismiss Am. Compl. Lack of Subject Matter Jurisdiction and Failure State Claim (DE [24]), 3-4) (“Motion”).¹ The Court has carefully considered the Motion, the Response (DE [29]), and the various supplemental filings of authority from each Party. The matter is fully briefed and ripe for review. As outlined below, this Court finds that it lacks subject matter jurisdiction to rule on the matter, and if it had jurisdiction, this Court would find that Virginia law controls the agreement.

I. LEGAL STANDARDS

A. Motion to Dismiss under Rule 12(b)(1)

Rule 12(b)(1) applies to challenges of a court's subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Generally, the plaintiff must allege, with particularity, facts necessary to establish jurisdiction and must support his allegation if challenged to do so. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273 (11th Cir. 2000).

“A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232–33 (11th Cir. 2008) (citing McElmurray v. Consol. Gov't of Augusta–Richmond Cnty., 501 F.3d 1244, 1250, 1251 (11th Cir. 2007)). “ ‘A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.’ ” Id. “By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony.” Id.

B. Motion to Dismiss under Rule 12(b)(6)

At the pleading stage, a complaint must contain “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure (“Rule”) 8(a) does not require “detailed factual allegations,” it does require “more than labels and conclusions ․ a formulaic recitation of the cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a motion to dismiss, “factual allegations must be enough to raise a right to relief above the speculative level” and must be sufficient “to state a claim for relief that is plausible on its face.” Id. at 555, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

In considering a Rule 12(b)(6) motion to dismiss, the court's review is generally “limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002)). Courts must review the complaint in the light most favorable to the plaintiff, and must generally accept the plaintiff's well-pleaded facts as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). However, pleadings that “are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

II. DISCUSSION

In all cases, “the first and fundamental question is that of jurisdiction.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) (internal quotations omitted). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L. Ed. 264 (1868). Thus, the first question, and possibly the last, for this Court is that of subject matter jurisdiction. Plaintiffs allege diversity jurisdiction under Section 1332 of Chapter 28 of the United States Code, stating that the dispute is between citizens of different states and the amount in controversy exceeds $75,000. (FAC (DE [12]), ¶ 1). Capital One argues that the amount in controversy does not exceed $75,000 and, therefore, this Court lacks subject matter jurisdiction. (Mot., (DE [24]), 4).

Generally, this Court cannot “aggregate the value of multiple plaintiffs’ claims to satisfy the amount in controversy requirement simply because they are joined in a single lawsuit.” Leonard v. Enter. Rent a Car, 279 F.3d 967, 974 (11th Cir. 2002); see also Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1280 (11th Cir. 2001) (“Generally, if no single plaintiff can satisfy the jurisdictional amount, then there is no diversity jurisdiction.”). Plaintiffs agree that a single plaintiff needs to satisfy the jurisdictional requirement, but states that each Plaintiff is entitled to more than $75,000 in damages for the harms alleged. See (Resp. Opp. Def. Capital One's 2d Am. Mot. Dismiss (DE [29]), 7).

For each of the three counts, each Plaintiff seeks:

(a) $1,000.00 in statutory damages as provided under Fla. Stat. § 559.77(2);

(b) Actual damages of $5,000.00 as provided under Fla. Stat. § 559.77(2);

(c) Punitive damages as provided under Fla. Stat. § 559.77(2);

(d) An injunction prohibiting Capital One from engaging in further collection activities directed at Plaintiffs that are in violation of the FCCPA;

(e) Costs and reasonable attorney's fees pursuant to Fla. Stat. § 559.77(2); and

(f) Any other relief that this Court deems appropriate under the circumstances.

(FAC (DE [12]), ¶¶ 179, 188, 196).

This Court will begin by looking at statutory damages. The FCCPA provides, in relevant part, that: “Any person who fails to comply with any provision of [§] 559.72 is liable for actual damages and for additional statutory damages as the court may allow, but not exceeding $1,000, together with court costs and reasonable attorney's fees incurred by the plaintiff.” Capital One argues that “each Plaintiff is still only entitled to $1,000 in statutory damages for each email.” (Mot. (DE [24]), 6) (citing Spence v. Citicorp Credit Servs., Inc., 2017 WL 708742, at *4 (M.D. Fla. Feb. 3, 2017)) (“The foregoing provision [Fla. Stat. § 559.77(2)] has been interpreted by numerous courts to limit a plaintiff's claim for statutory damages to $1,000.00 per action, not per violation.”), report and recommendation adopted, 2017 WL 700552 (M.D. Fla. Feb. 22, 2017); see also Salvatore v. Nationstar Mortg., LLC, 2015 WL 5970707, at *4 (M.D.Fla. Oct. 13, 2015) (“In the event [p]laintiff alleges and proves more than one violation of the FCCPA, [p]laintiff is limited to a total statutory award of $1,000 in this action for violations of the FCCPA[.]”). This Court agrees. Counts I-III allege separate violations of the FCCPA, see (FAC (DE [12]), ¶¶ 173-96), and each Plaintiff can only recover $1,000 in statutory damages for all three counts.

“[T]he court can dismiss only if it is convinced ‘to a legal certainty’ that the claims of the plaintiff in question will not exceed $75,000.” McIntosh v. Royal Caribbean Cruises, Ltd., 5 F.4th 1309, 1312 (11th Cir. 2021). “While a federal court must of course give due credit to the good faith claims of the plaintiff, a court would be remiss in its obligations if it accepted every claim of damages at face value, no matter how trivial the underlying injury.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1272 (11th Cir. 2000). Plaintiffs allege each email caused their cellular phone “to emit an audible sound” that intruded upon their peace, and caused each of them to “waste[ ]” “approximately five (5) minutes of time retrieving” their phone to review the communication and to lose “approximately one (1) hour of sleep.” (FAC (DE [12]), ¶¶ 22-30, 56-64, 83-91, 117-125, 144-152). Plaintiffs do not link this alleged suffering to their requests for actual damages. Even if they had, this calculation is entirely speculative.

Courts have dismissed actions where plaintiffs only made general allegations that they suffered damages. See Bradley v. Kelly Servs., Inc., 224 Fed. Appx. 893, 895 (11th Cir. 2007) (affirming dismissal of complaint for lack of jurisdiction where plaintiff “made general allegations that she suffered damages” but “never quantified these losses with any specific dollar figures” and was merely “speculating that her damages would exceed $75,000”); Estate of Levine v. QBE First Ins. Agency, Inc., 2017 WL 4326693, at *3 (S.D. Fla. Aug. 4, 2017) (“A plaintiff cannot establish subject matter jurisdiction by alleging actual damages of under $4,000, simply by arguing that it could obtain punitive damages in excess of $70,000 based on FCCPA and common law tortious interference claims.”) (Ungaro, J.).

Plaintiffs’ requests for actual damages, attorneys’ fees and punitive damages are entirely speculative. Although each Plaintiff requests $5,000 in actual damages, see (FAC (DE [12]), ¶¶ 179, 188, 196), there are no allegations indicating that Plaintiffs suffered any actual damages as a result of Capital One's email. The same is true for Plaintiffs’ requests for punitive damages and attorneys’ fees.² Plaintiffs cannot speculate that they suffered over $74,000 in damages.

Thus, Plaintiffs are currently limited to recovering only $1,000.00 in statutory damages under Counts I-III of the First Amended Complaint, as it is currently plead. Id. In light of this limitation and the lack of any indication that Plaintiffs suffered actual damages, the undersigned finds that the First Amended Complaint is mere puffery and not an honest assessment of Plaintiffs’ damages, because there is nothing in the record that would reasonably support the portion of Plaintiffs’ demand seeking a total greater than $74,000.00 for the single email Capital One sent to each of their cellphones. Therefore, as the record stands, Plaintiffs appear to be limited to recovering $1,000.00 in statutory damages. This amount does not exceed $75,000.00. The undersigned finds to a legal certainty that the amount in controversy does not exceed $75,000.00, and, as a result, Plaintiffs have not demonstrated that the Court has subject matter jurisdiction over the case.

“The FCCPA prohibits egregious debt collection practices and provides legal remedies to protect consumers from harassing collection efforts.” Bank of Am., N.A. v. Siefker, 201 So. 3d 811, 816 (Fla.4th DCA 2016) (citation omitted). Each Plaintiff seeks over $75,000 in damages because they spent five minutes reading an email, which caused them to lose one hour of sleep. (FAC (DE [12]), ¶¶ 22-30, 56-64, 83-91, 117-125, 144-152). As the saying goes, “one rotten apple spoils the whole barrel.” The FCCPA and laws like it exist to protect consumers. When people like Plaintiffs demand more than $75,000 because they received one email, one time about their credit card balance, it makes it harder for the consumer receiving hundreds of calls from a predatory lender to obtain relief.

And critically, the amount in controversy is not the First Amended Complaint's only deficiency. The customer agreements Plaintiffs signed are “governed by applicable federal and Virginia law.” (Mot. (DE [24]), 10); see (FAC (DE [12]), ¶¶ 38, 99, 160). Even if Plaintiffs met the amount in controversy requirement, they could not bring a claim under the FCCPA because Virginia law governs the action. See Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73, 80 (Fla. 2012) (“An agreement between parties to be bound by the substantive laws of another jurisdiction is presumptively valid, and this Court will enforce a choice-of-law provision unless applying the chosen forum's law would contravene a strong public policy of this State.”). Further amending this pleading before this Court is futile given the choice of law provisions. Accordingly, it is hereby

ORDERED AND ADJUDGED that Capital One's Amended Motion to Dismiss First Amended Complaint (DE [24]) is GRANTED. The First Amended Complaint (DE [12]) is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to CLOSE this case, and any pending motions are DENIED AS MOOT.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 25th day of September 2025.

FOOTNOTES

1.   Dismissing for lack of subject matter jurisdiction, this Court declines to address arguments ii, iii, and iv.

2.   Plaintiffs also request injunctive relief. “The value of injunctive or declaratory relief for amount in controversy purposes is the monetary value of the object of the litigation that would flow to the plaintiffs if the injunction were granted.” Leonard v. Enter. Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002). Plaintiffs have not alleged any facts indicating that any monetary value would flow to Plaintiffs if their requests for injunctive relief were granted. As it relates to the amount in controversy, Plaintiffs’ requests for injunctive relief are irrelevant.

RAAG SINGHAL, UNITED STATES DISTRICT JUDGE