Gross v. Weinstein, Weinburg & Fox, LLC

123 F. Supp. 3d 575, 2015 U.S. Dist. LEXIS 111518, 2015 WL 5012309
CourtDistrict Court, D. Delaware
DecidedAugust 24, 2015
DocketC.A. No. 14-786-LPS
StatusPublished
Cited by7 cases

This text of 123 F. Supp. 3d 575 (Gross v. Weinstein, Weinburg & Fox, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gross v. Weinstein, Weinburg & Fox, LLC, 123 F. Supp. 3d 575, 2015 U.S. Dist. LEXIS 111518, 2015 WL 5012309 (D. Del. 2015).

Opinion

MEMORANDUM OPINION

STARK, District Judge

Pending before the Court are:- (1) a motion to dismiss for failure to state a claim, filed by Defendants Darren- Tillison, Tyra Tillison, and Weinstein, Weinburg & Fox LLC (“the Weinstein Defendants”) (D.I.12); (2) a motion to strike or, in the alternative, a motion for more definitive statements, filed by Plaintiffs Claire Champagne and Randall Gross (“Plaintiffs”) (D.I.13) in response to the answer filed by Defendant Delaware Modem Dental (“DMD”) (D.I.10); and (3) a motion for default judgment as to Weinstein, Wein-burg, & Fox LLC (“WWF”) (D.I.20). For the reasons below, the Court will deny the Weinstein Defendants’ motion to dismiss, grant in part and deny in part Plaintiffs’ motion to strike, and will deny without prejudice to renew Plaintiffs’ motion for default judgment as to WWF.

BACKGROUND

Plaintiffs filed this action on June 20, 2014, alleging that Defendants -violated provisions of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and Plaintiffs’ contractual rights. (D.I.1) All of Plaintiffs’ claims arise “out of the commission of torts by the Defendants against the Plaintiffs when these Defendants and their agents used illegal methods to collect a consumer debt from the Plaintiffs.” (Id. at ¶ 2)

Specifically, Plaintiffs allege that, beginning in January 2013, Plaintiff Gross received dental services at DMD on ’several occasions, and incurred a debt which has never been paid. (See id. at ¶¶ 15, 16) Gross has dental insurance through Delta Dental, with respect to which DMD is an “in-network provider.” (Id. at ¶ 17) Plain[578]*578tiffs allege that under the contract between Delta Dental and DMD, “DMD (because it is an in-network provider with Delta) may not ‘balance bill’ members such .as Mr. Gross ‘for the difference between the Delta Dental Plan payment and DMD’s = submitted fee.’” (Id.; see also D.I. 1-1 Ex. C) According to the Complaint, Gross’ January 2013 appointment was properly billed under the Delta Dental plan. (D.1.1 at ¶ 20)

Gross visited DMD for additional dental services three times during September 2018 — but, unlike with his January visit, DMD recorded fees over and above the estimated insurance payment for each of the September visits. (See id. at ¶¶ 22-24) As alleged in the Complaint:

On September 30, 2013 DMD received payment of $448.80 from Delta— Néverthéless, in breach of its contract with Delta for Mr. Gross’s benefit) DMD did not apply this insurance payment as payment in full for services— Instead, DMD continued to record the $91.20 balance bill that was not covered ■by insurance as a fee still owed by Mr. Gross for service on September 18.

(Id. at 25) (emphasis in original) Plaintiffs further allege: “No statements were' provided to Mr. Gross regarding any-of his treatment bills or insurance payments for services provided by DMD.” (Id. at ¶26)

Gross last visited DMD on October 17, 2013, for a routine cleaning. (Id, at ¶ 29) The day before, on October 16,2013, Delta Dental notified DMD that Grbss’ annual maximum insurance benefit had been reached. (Id. at 28) However, DMD did not inform Gross at his appointment on October. 17 that the visit would not be covered by his insurance plan. (Id. at ¶ 30) “As a result of DMD’s actions, ■ Mr. Gross unknowingly incurred a fee of $103.00 on October 17, 2013, for unnecessary services that would have been free to him in three (3) months [i.e., had he delayed the appointment until 2014].” (Id.)

On November 11, 2013, Gross received a billing invoice which itemized the October 17, 2013 teeth cleaning, and included a non-itemized $1,023.60 balance forward. (Id. at ¶ 31; D.I. 1-1 Ex. F) The bill also stated: “Your Account is 30 Days Overdue.” (D.I. 1-1 Ex. F) Plaintiffs allege that this is the first' billing invoice Gross ever received. (D.1.1 at ¶ 31) Gross asked DMD to resubmit his bill to Delta, believing that his insurance had not yet been exhausted. (Id.)

Also in November 2013, Plaintiffs moved their residence and filed a change of address form with t the Newark, Delaware Main Post Office. (Id. at ¶ 32) Although DMD issued two more billing invoices (in December 2013 and January 2014), Gross never received those bills. (Id. at ¶¶ 33-34) On January 14, 2014, DMD added a $337.98 collection agency fee to Gross’ bill. (Id. at ¶ 37; D.I. 1-1 Ex. D)

On January 16, 2014, DMD sent Gross’ account to WWF for collection of the $1,464.58 debt owed. (D.I. 1 at ¶¶ 38-39) Plaintiffs allege: “All of these charges were unethical, because they occurred in violation of DMD’s agreement with its patients to obtain insurance availability prior to service— At the very least $742.18 of these charges were illegal fees under the Delta contract ($404.20) and the FDCPA ($337.98).” (Id. at ¶ 39) (emphasis in original)

On April 1, 2014, Gross received a telephone call on his cell phone from Antonio Right, who “introduced himself as a lawyer with the law firm of Weinstein, Weinburg & Fox, LLC, and stated that he was calling to collect a delinquent debt in the amount of $1,509.08' on behalf of DMD.” (Id. at ¶ 40) Gross received a letter, dated April 8, 2014, from ■“The Firm Weinstein, Weinburg & Fox, LLC” demanding pay[579]*579ment in full of $1509.58, signed by Antonio Right, Senior Negotiator. (Id. at ¶ 67; D.I. 1-1 Ex. H) The Complaint contains further details regarding Plaintiffs’ interactions with Right. (See D.I. 1 at ¶¶ 41-66)1

MOTION TO DISMISS

Legal Standards

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all allegations of a complaint. See Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991). “The issue is not whether a plaintiff will ultimately prevail but whéther the claimant is entitled to offer evidence to support the claims.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir.1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after “accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief.” Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000).

However, “[t]o survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).’ ” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir.2007) (quoting

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123 F. Supp. 3d 575, 2015 U.S. Dist. LEXIS 111518, 2015 WL 5012309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-weinstein-weinburg-fox-llc-ded-2015.