IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

Joseph Anger, 

Plaintiff, on behalf of all 

others similarly situated 

v. 

Accretive Health, Inc. d/b/a 

Medical Financial Solutions, 

Defendant. 

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Case No. 2:14-cv-12864 

District Judge Victoria A. Roberts 

Magistrate Judge Mona K. Majzoub 

DEFENDANT’S REPLY IN SUPPORT OF ITS 

MOTION TO DISMISS 

 Plaintiff’s Brief in Opposition does nothing to change the simple and 

dispositive fact that the allegations contained within the four corners of Plaintiff’s 

Complaint do not sufficiently allege that Accretive Health, Inc. was operating as a 

“debt collector” within the meaning of the Fair Debt Collection Practices Act when it 

attempted to secure payment on Plaintiff’s active account. Plaintiff likewise fails to 

sufficiently state a claim under the multiple state laws that he invokes, and fails to 

acknowledge that under well-established precedent, he lacks standing to assert most 

of those claims. Accordingly, Plaintiff’s Complaint should be dismissed. 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 1 of 27 Pg ID 286
TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS ........................................................................................................ i

TABLE OF AUTHORITIES ................................................................................................. ii

CONTROLLING OR MOST APPROPRIATE AUTHORITIES .............................. vii

INTRODUCTION .................................................................................................................. 1

ARGUMENT ............................................................................................................................ 2

I. Plaintiff’s FDCPA Claim (Count I) Must Be Dismissed. ........................................ 4

A. Accretive Health Is Not a “Debt Collector” Under the FDCPA. ........... 4 

B. Plaintiff’s Section 1692e and 1692f Claims Must Be Dismissed As 

Insufficiently Pled. .................................................................................. 8 

II. Plaintiff’s Michigan-Law Claims (Counts II & IV) Should Be Dismissed. ........ 10

III. Plaintiff Does Not Have Standing To Bring—And Has Not Adequately 

Pled—Claims Under the Laws of States and Municipalities Outside of 

Michigan (Counts III-V). ............................................................................................ 11

CONCLUSION ...................................................................................................................... 17

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 2 of 27 Pg ID 287
 ii 

TABLE OF AUTHORITIES 

Page(s) 

Cases

Alibrandi v. Fin. Outsourcing Servs., Inc., 

333 F.3d 82 (2d Cir. 2003) (per curiam) ................................................................... 1, 3, 5, 8 

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997) ..................................................................................................... passim 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) .............................................................................................. 2, 8, 10, 17

Berry v. GMAC-Residential Funding Corp., 

No. 01-2713, 2002 WL 1797779 (W.D. Tenn. July 31, 2002)....................................... 14 

Bridge v. Ocwen Fed. Bank, 

681 F.3d 355 (6th Cir. 2012) ........................................................................................... 4, 6 

Church v. Accretive Health, Inc., 

No. 14-0057, 2014 WL 7184340 (S.D. Ala. Dec. 16, 2014) ................................... 1, 7, 8 

Davidson v. Worldwide Asset Purchasing, LLC, 

914 F. Supp. 2d 918 (N.D. Ill. 2012) ................................................................................ 14 

Easter v. Am. West Fin., 

381 F.3d 948 (9th Cir. 2004) ....................................................................................... 13, 15 

Fed. Home Mortg. Corp. v. Lamar, 

503 F.3d 504 (6th Cir. 2007) ................................................................................................ 8

Gervais v. Riddle & Assocs., 

479 F. Supp. 2d 270 (D. Conn. 2007) ............................................................................... 17 

Glazer v. Chase Home Fin. LLC, 

704 F.3d 453 (6th Cir. 2013) ................................................................................................ 5

Gnesin v. Am. Profit Recovery, 

No. 12-CV-12595, 2012 WL 5844686 (E.D. Mich. Nov. 19, 2012) ............................ 11 

Grden v. Leikin Ingber & Winters PC, 

643 F.3d 169 (6th Cir. 2011) ................................................................................................ 8

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 3 of 27 Pg ID 288
 iii 

Hoving v. Transnation Title Ins. Co., 

545 F. Supp. 2d 662 (E.D. Mich. 2008) ..................................................................... 14, 15 

In re Checking Account Overdraft Litig., 

694 F. Supp. 2d 1302 (S.D. Fla. 2010) .............................................................................. 14 

In re Ditropan XL Antitrust Litig., 

529 F. Supp. 2d 1098 (N.D. Cal. 2007) ............................................................................ 15 

In re Eaton Vance Corp. Sec. Litig., 

220 F.R.D. 162 (D. Mass. 2004) ........................................................................................ 14 

In re Enron Corp. Sec., Derivative & ERISA Litig., 

Nos. MDL-1446, CIVA.H-01-3624, 2004 WL 405886 (S.D. Tex. Feb. 25, 2004) .... 14 

In re Flonase Antitrust Litig., 

610 F. Supp. 2d 409 (E.D. Pa. 2009) ................................................................................ 15 

In re Graphics Processing Units Antitrust Litig., 

527 F. Supp. 2d 1011 (N.D. Cal. 2007) ............................................................................ 15 

In re Lorazepam & Clorazepate Antitrust Litig., 

289 F.3d 98 (D.C. Cir. 2002) .............................................................................................. 14 

In re Packaged Ice Antitrust Litig., 

779 F. Supp. 2d 642 (E.D. Mich. 2011) .......................................................... 2, 14, 15, 16 

In re Potash Antitrust Litig., 

667 F. Supp. 2d 907 (N.D. Ill. 2009) ................................................................................ 15 

In re Refrigerant Compressors Antitrust Litig., 

No. 2:09-MD-02042, 2012 WL 2917365 (E.D. Mich. July 17, 2012) .......................... 15 

In re Salomon Smith Barney Mut. Fund Fees Litig., 

441 F. Supp. 2d 579 (S.D.N.Y. 2006) ............................................................................... 14 

In re Terazosin Hydrochloride Antitrust Litig., 

160 F. Supp. 2d 1365 (S.D. Fla. 2001) .............................................................................. 16 

In re Uplinger, 

No. 1:11CV1270, 2012 WL 7150435 (E.D. Va. Feb. 8, 2012) ....................................... 9 

In re Wellbutrin XL Antitrust Litig., 

260 F.R.D. 143 (E.D. Pa. 2009) .................................................................................. 12, 15 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 4 of 27 Pg ID 289
 iv 

Kirkeby v. JP Morgan Chase Bank, 

No. 13cv377, 2014 WL 7205634 (S.D. Cal. Dec. 17, 2014) .......................................... 16 

Larobina v. Wells Fargo Bank, 

No. 10-cv-01279, 2014 WL 3419534 (D. Conn. July 10, 2014) ................................... 17 

Lewis v. ACB Bus. Servs., Inc., 

135 F.3d 389 (6th Cir. 1998) ................................................................................................ 3

Lewis v. Casey, 

518 U.S. 343 (1996) ............................................................................................................. 11 

Linsley v. FMS Inv. Corp., 

No. 11cv961, 2012 WL 1309840 (D. Conn. Apr. 17, 2012) ......................................... 17 

Lopez-Flores v. Resolution Trust Corp., 

93 F. Supp. 2d 834 (E.D. Mich. 2000) .............................................................................. 13 

Lovelace v. Stephens & Michaels Assocs., Inc., 

No. 07-10956, 2007 WL 3333019 (E.D. Mich. Nov. 9, 2007) ...................................... 10 

Madigan v. Messerli & Kramer, P.A., 

No. CIV. 11-2667, 2011 WL 6760354 (D. Minn. Dec. 23, 2011) .................................. 9 

Mahon v. Ticor Title Ins. Co., 

683 F.3d 59 (2d Cir. 2012) .................................................................................................. 13 

Matte v. Sunshine Mobile Homes, Inc., 

270 F. Supp. 2d 805 (W.D. La. 2003) ............................................................................... 14 

Moon v. Harrison Piping Supply, 

465 F.3d 719 (6th Cir. 2006) .............................................................................................. 10 

Munoz v. Fed. Nat’l Mortg. Ass’n, 

2014 WL 3418426 (D. Ariz. July 14, 2014) ...................................................................... 16 

Ortiz v. Fibreboard Corp., 

527 U.S. 815 (1999) ......................................................................................... 12, 13, 14, 15 

Parks v. Dick’s Sporting Goods, Inc., 

No. 05-cv-6590, 2006 WL 1704477 (W.D.N.Y. June 15, 2006) ................................... 16 

Perry v. Se. Boll Weevil Eradication Found., Inc., 

154 F. App’x 467 (6th Cir. 2005) ....................................................................................... 10 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 5 of 27 Pg ID 290
 v 

Pollice v. Nat’l Tax Funding, L.P., 

225 F.3d 379 (3d Cir. 2000) .................................................................................................. 9 

Rivera v. Wyeth-Ayerst Labs., 

283 F.3d 315 (5th Cir. 2002) .............................................................................................. 13 

Sanford v. Portfolio Recovery Assocs., LLC, 

No. 12-CV-11526, 2013 WL 5476272 (E.D. Mich. Oct. 2, 2013) ............................... 11 

Scheuer v. Jefferson Capital Sys., LLC, 

No. 14-cv-11218, 2014 WL 4435874 (E.D. Mich. Sept. 9, 2014) .................................. 8 

SFS Check, LLC v. First Bank of Del., 

774 F.3d 351 (6th Cir. 2014) .............................................................................................. 16 

Smith v. Lawyers Title Ins. Corp., 

No. 07-12124, 2009 WL 514210 (E.D. Mich. Mar. 2, 2009) ......................................... 15 

South v. Midwestern Audit Servs., Inc., 

No. CIV. A. 09-14740, 2010 WL 5088765 (E.D. Mich. Aug. 12, 2010), 

report and recommendation adopted, 

No. CIV. 09-14740, 2010 WL 5089862 (E.D. Mich. Dec. 8, 2010) ............................ 11 

Steel Co. v. Citizens For a Better Envt., 

523 U.S. 83 (1998) ................................................................................................................ 12 

Stone v. Crispers Rests., Inc., 

No. 06-cv-1086, 2006 WL 2850103 (M.D. Fla. Oct. 3, 2006) ...................................... 16 

Temple v. Circuit City Stores, Inc., 

Nos. 06CV5303 & 06CV5304, 2007 WL 2790154 (E.D.N.Y. Sept. 25, 2007) ... 14, 15 

Thomas v. Metro. Life Ins. Co., 

540 F. Supp. 2d 1212 (W.D. Okla. 2008) ......................................................................... 15 

Thunander v. Uponor, Inc., 

887 F. Supp. 2d 850 (D. Minn. 2012) ............................................................................... 14 

United Mine Workers of Am. v. Gibbs, 

383 U.S. 715 (1966) ............................................................................................................. 11 

Vill. of Oakwood v. State Bank & Trust Co., 

539 F.3d 373 (6th Cir. 2008) .............................................................................................. 13 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 6 of 27 Pg ID 291
 vi 

Walker v. Gallegos, 

167 F. Supp. 2d 1105 (D. Ariz. 2001) ............................................................................... 17 

Wallace v. Washington Mut. Bank, F.A., 

683 F.3d 323 (6th Cir. 2012) ................................................................................................ 8

Wise v. Cavalry Portfolio Servs. LLC, 

No. 09-cv-86, 2010 WL 1286884 (D. Conn. Mar. 30, 2010) ........................................ 17 

Statutes, Rules and Regulations

15 U.S.C. § 1692 ........................................................................................................................ 2 

15 U.S.C. § 1692a.............................................................................................................. 1, 2, 3 

15 U.S.C. § 1692d ...................................................................................................................... 3 

15 U.S.C. § 1692e ................................................................................................................. 8, 9 

15 U.S.C. § 1692f .............................................................................................................. 3, 8, 9 

Fed. R. Civ. P. 23 ..................................................................................................................... 14 

Fed. R. Civ. P. 9(b) .................................................................................................................. 16 

S. REP. 95-382 (1977) ................................................................................................................ 2 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 7 of 27 Pg ID 292
 vii 

CONTROLLING OR MOST APPROPRIATE AUTHORITIES 

Page(s) 

Cases

Alibrandi v. Fin. Outsourcing Servs., Inc., 

333 F.3d 82 (2d Cir. 2003) (per curiam) ................................................................... 1, 3, 5, 8 

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997) ..................................................................................................... passim 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) .............................................................................................. 2, 8, 10, 17

Bridge v. Ocwen Fed. Bank, 

681 F.3d 355 (6th Cir. 2012) ........................................................................................... 4, 6 

In re Packaged Ice Antitrust Litig., 

779 F. Supp. 2d 642 (E.D. Mich. 2011) .......................................................... 2, 14, 15, 16 

In re Refrigerant Compressors Antitrust Litig., 

No. 2:09-MD-02042, 2012 WL 2917365 (E.D. Mich. July 17, 2012) .......................... 15 

In re Wellbutrin XL Antitrust Litig., 

260 F.R.D. 143 (E.D. Pa. 2009) .................................................................................. 12, 15 

Lewis v. Casey, 

518 U.S. 343 (1996) ............................................................................................................. 11 

Ortiz v. Fibreboard Corp., 

527 U.S. 815 (1999) ......................................................................................... 12, 13, 14, 15 

Smith v. Lawyers Title Ins. Corp., 

No. 07-12124, 2009 WL 514210 (E.D. Mich. Mar. 2, 2009) ......................................... 15 

Steel Co. v. Citizens For a Better Envt., 

523 U.S. 83 (1998) ................................................................................................................ 12 

Statutes, Rules and Regulations

15 U.S.C. § 1692a.............................................................................................................. 1, 2, 3 

15 U.S.C. § 1692f .............................................................................................................. 3, 8, 9 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 8 of 27 Pg ID 293
INTRODUCTION 

Plaintiff’s Opposition (“Opp’n”) only reinforces the conclusion that Defendant 

falls outside the FDCPA’s reach: Plaintiff’s own allegations establish that his account 

simply “was not in default at the time it was obtained” by Accretive Health. 15 U.S.C. 

§ 1692a(6)(F)(iii). As an initial matter, Plaintiff appears to concede that his debt was 

not objectively “in default” when Accretive Health obtained it. Compl. ¶¶ 15, 16, 18 

19. In order to invoke the FDCPA, Plaintiff instead relies on the conclusory 

allegation that Accretive Health “treated” his debt as defaulted. Opp’n 8-12. But that 

allegation is belied by the very letter Accretive Health sent, which described the 

account as having an “active balance . . . with St. Mary’s.” Id. ¶¶ 6, 16. Not until 

several weeks later did Accretive Health’s communications begin to classify Plaintiff’s 

account as “past due.” Id. ¶ 19. It is well-established that debt is not yet “in default” 

for purposes of the FDCPA when it is newly “past due”—much less when it is not 

yet past due. See Alibrandi v. Fin. Outsourcing Servs., Inc., 333 F.3d 82, 87 (2d Cir. 2003) 

(per curiam). The recent decision in Church v. Accretive Health, Inc., is not to the contrary: 

in determining that Church had adequately pled that her account was in default, the 

Church court placed primary emphasis on the nearly 13-month delay between Church’s 

treatment and her account’s transfer to Accretive Health. No. 14-0057, 2014 WL 

7184340, at *4 (S.D. Ala. Dec. 16, 2014). There is no such delay here—by Plaintiff’s 

own allegations, Accretive Health began servicing his account within 90 days of his 

incurring the debt at issue. See Compl. Ex. A. 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 9 of 27 Pg ID 294
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Plaintiff’s state-law claims fare no better, as they fail to provide even the 

“formulaic recitation of the elements of a cause of action” that the Supreme Court has 

deemed insufficient to satisfy a Plaintiff’s pleading burden. Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555 (2007). Moreover, Plaintiff lacks standing to assert claims under the 

laws of states in which he has suffered no injury. As most interpreting courts have 

held, the Supreme Court precedents upon which Plaintiff relies do not apply when a 

named plaintiff’s standing is at issue. See, e.g., In re Packaged Ice Antitrust Litig., 779 F. 

Supp. 2d 642, 654 (E.D. Mich. 2011). Plaintiff’s Complaint must be dismissed. 

ARGUMENT 

The Fair Debt Collections Practices Act (“FDCPA”) was enacted to “eliminate 

abusive debt collection practices by debt collectors,” 15 U.S.C. § 1692(e), “without 

imposing unnecessary restrictions on ethical debt collectors.” S. REP. 95-382, at 1 

(1977). To walk that narrow line, Congress carefully targeted a specific class of debt 

collector it saw as the “prime source of egregious collection practices.” Id. at 2. That 

class of debt collector is utterly “independent” from the original creditor; as nonrepeat players, such debt collectors “often are unconcerned with the consumer’s 

opinion of them.” Id. These debt collectors collect bad debt—defaulted debt that 

creditors have already written off as uncollectable—and, thus, “generally operate on a 

50-percent commission,” which creates “the incentive to collect by any means.” Id. 

And, these debt collectors engage in abusive practices like “obscene or profane 

language, threats of violence [and] telephone calls at unreasonable hours.” Id. 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 10 of 27 Pg ID 295
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The FDCPA is carefully crafted to selectively target these rogue debt collectors. 

To that end, it excludes creditors and in-house collectors from its reach. See Alibrandi 

333 F.2d at 85; 15 U.S.C. § 1692a(6)(B)&(F). Moreover, it covers only those debt 

collectors who pursue defaulted debt, the debt whose difficult and lucrative collection 

is mostly likely to spark the use of unconscionable means. See id. § 1692a(6)(F)(iii). 

Finally, it imposes liability for the use of harassment, false misrepresentation, or unfair 

practices in debt collection, 15 U.S.C. §§ 1692d-1692f, but permits those practices 

which facilitate the work of “honest debt collectors seeking a peaceful resolution,” 

Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 399 (6th Cir. 1998). 

Accretive Health differs starkly from the debt collectors Congress sought to 

regulate through the FDCPA. While not formally a creditor or in-house collections 

agency, Accretive Health is—and represents itself as—the functional equivalent of an 

“‘extended billing office for St. Mary’s.’” Compl. ¶ 23; see also id. at Exs. A & B 

(stating, in letter to Plaintiff, that Accretive Health “works directly with St. Mary’s of 

Michigan Standish Hospital”). Far from pursuing bad or defaulted debt, Accretive 

Health contacted Plaintiff when his balance with St. Mary’s was still “active.” Id. 

And, the most egregious collection practice Plaintiff alleges is the sending of two 

polite, accurate letters and the leaving of one voicemail “to discuss ‘an account.’” 

Compl. ¶¶ 16, 19, 28. Upon the facts alleged in the Complaint, Accretive Health falls 

outside the FDCPA’s reach. 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 11 of 27 Pg ID 296
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I. Plaintiff’s FDCPA Claim (Count I) Must Be Dismissed. 

A. Accretive Health Is Not a “Debt Collector” Under the FDCPA. 

In the Sixth Circuit, the definition of “debt collector” has both an objective and 

a subjective component: it “includes any non-originating debt holder that either 

acquired a debt in default or has treated the debt as it if were in default at the time of 

acquisition.” Bridge v. Ocwen Fed. Bank, 681 F.3d 355, 362 (6th Cir. 2012). Plaintiff 

appears to concede that he has alleged no facts from which this Court could infer that 

his debt was objectively “in default”—as opposed to merely “due” or “past due”—

when it was transferred to Accretive Health. Indeed, the Complaint leads to the 

opposite inference. See Compl. ¶ 18 (“Plaintiff was, therefore, at all times in 

compliance with both his original agreement with St. Mary’s Hospital and his 

subsequent agreement with Defendant debt collector.”); Opp’n 4 n.2 (“During all 

relevant times, Plaintiff’s payments were either current or paid ahead of schedule.”). 

Instead, Plaintiff shifts the discussion to whether Accretive Health “treated” his 

debt as “in default.” Opp’n 8-12. That strategy is unavailing: no fair reading of 

Plaintiff’s Complaint permits the inference that Accretive Health subjectively 

“treated” Plaintiff’s debt as if it were ever in default—let alone in default at the time 

of acquisition. Most tellingly, the opening line of Accretive Health’s first letter 

describes Plaintiff as having an “active balance.” See Compl. ¶¶ 6, 16 & Ex. A (“You 

have an active balance of $219.01 with St. Mary’s of Michigan Standish Hospital.”). 

The significance of that language is highlighted by the similar letter Plaintiff allegedly 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 12 of 27 Pg ID 297
 5 

received from Accretive Health four weeks later, which replaces the word “active” 

with the words “past due.” See Compl. ¶ 19 & Ex. B (“You have a balance of $169.01 

with St. Mary’s of Michigan Standish Hospital that is past due . . . ”). 

The inference is clear: if Plaintiff’s account was not “past due” until Accretive 

Health sent its second letter, it must have been current (“active”) at the time of the 

initial letter (i.e., when Accretive Health first took over Plaintiff’s account). It is wellestablished that a debt that is newly past due—as Plaintiff’s was by the second letter—

is not in default: “[i]n applying the FDCPA, courts have repeatedly distinguished 

between a debt that is in default and a debt that is merely outstanding, emphasizing 

that only after some period of time does an outstanding debt go into default.” 

Alibrandi, 333 F.3d at 87 (collecting authorities). A fortiori, it is beyond cavil that 

Defendant’s first letter did not treat Plaintiff’s debt as being in default: no federal 

court has ever held a debt that is not yet past due to be “in default” for purposes of 

the FDCPA. Cf. Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 457 (6th Cir. 2013) (the 

“not in default” exception “applies to a person collecting a debt asserted to be owed 

or due [ ] another when the efforts concern a debt that was current when first 

obtained by the person”) (internal quotation omitted). 

That Accretive Health’s letters did not “treat” Plaintiff’s debt as “in default” is 

reinforced by the fact that each letter specified that Plaintiff’s balance was “due . . . 

upon receipt.” See Compl. Exs. A & B. Plaintiff implicitly concedes the significance 

of that language. He faults Accretive Health’s letters for “falsely stat[ing] that $219.01 

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 6 

[was] ‘due . . . upon receipt’” when, he claims, only the $50 he was scheduled to pay as 

part of his payment plan was actually “due.” Compl. ¶ 16. By equating the status of 

the debt Accretive Health sought to collect and the status of the debt Plaintiff 

concedes he owed, Plaintiff makes clear that Accretive Health was not treating his 

debt as if it were in default; Plaintiff repeatedly asserts that his scheduled payment 

plan payments were always “current or paid ahead of schedule.” See Opp’n 4 n.2; 

Compl. ¶ 18.

In that respect, this case could not present a stronger contrast with Bridge, upon 

which Plaintiff places heavy reliance. In Bridge, there was no question that the 

defendant had treated the plaintiff’s debt as in default: the defendant had “engaged in 

years of collection activity claiming [Plaintiff’s] mortgage [wa]s in default.” 681 F.3d 

at 361. Moreover, “unremitting collection activity was undertaken, foreclosure 

proceedings were instituted, and the credit of two consumers was seriously impaired.” 

Id. at 356. Here, by contrast, Plaintiff alleges that he received two (polite) letters and 

one phone call from Accretive Health over a period of six weeks, Compl. ¶¶ 16, 17, 

19, 28, and that Accretive Health repeatedly reiterated that it—unlike collectors of bad 

debt or defaulted debt—was “non-credit reporting.” Compl. ¶ 22 & Exs. A & B. 

In his haste to shoehorn this case into Bridge, Plaintiff now claims that 

Accretive Health “used scare tactics against Plaintiff” and that the language of 

Accretive Health’s letters “suggests that [Plaintiff’s] account is already in default.” 

Opp’n 10-11. In his Complaint, however, he suggested the opposite, faulting 

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Accretive Health for “creat[ing] the impression that . . . Defendant is not acting as a 

debt collector or collection agency with respect to Plaintiff’s family.” Compl. ¶ 23. In 

short, Plaintiff’s Complaint makes clear that his debt, unlike Bridge’s, was not treated 

as “in default.” 

Plaintiff’s reliance on the recent decision in Church v. Accretive Health is similarly 

misplaced, for three reasons. First, the Church court found Church to have sufficiently 

alleged that her account was in default when transferred to Accretive Health primarily 

because the debt was then “more than 12 months past due.” 2014 WL 7184340, at 

*4. Here, that extended time period was simply not present; Plaintiff’s debt was 

incurred on February 7, 2014, and he was contacted by Accretive Health on May 1, 

2014—less than 90 days later. See Compl. Ex. A. Second, Plaintiff overreads Church’s 

analysis of the form letter both Anger and Church received. The Church Court did no 

more than decide that the letter, when “considered in conjunction with the pleading’s 

other factual allegations,” could be consistent with the collection of either defaulted 

or undefaulted debt. See 2014 WL 7184340, at *6 (emphasis added). That conclusion 

was understandable in light of both the extended age of the account (which is not 

present here) and the limited materials before the Church court: because Church had 

received only one letter—an “active balance” letter—from Accretive Health, the 

Church court lacked the interpretive foil of the later “past due” letter to clarify that 

Anger’s “active” account was not yet “past due” at the legally significant moment it 

was transferred to Accretive Health. Finally, Church rejected the only standard under 

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 8 

which Anger’s account could possibly be in default: “[o]f course, Accretive Health is 

correct that case law rejects the proposition ‘that default occurs immediately after a 

debt becomes due.”’ Id. at *5 (quoting Alibrandi, 333 F.3d at 87). 

B. Plaintiff’s Section 1692e and 1692f Claims Must Be Dismissed As 

Insufficiently Pled. 

Plaintiff’s Opposition also confirms that he has not carried his burden in 

pleading his Section 1692e and 1692f claims.1

 Plaintiff now attempts to bolster the 

“formulaic recitation” of the statute in his Complaint, Twombly, 550 U.S. at 555, by 

alleging that his real claim under 15 U.S.C. § 1692f’s “unfair or unconscionable means” 

provision is not merely a generalized grievance duplicative of his Section 1692e claims, 

but rather is premised on Defendant’s failure to honor his alleged payment plan. That 

failure, Plaintiff alleges, runs afoul of Section 1962f(1)’s prohibition on “[t]he 

 1

 With respect to Section 1692e, Plaintiff spends the bulk of his Response 

down a rabbit hole, discussing the “subtle” difference between the “unsophisticated” 

and the “least sophisticated” consumer. Opp’n 14. The relevant case law describes 

both an unsophisticated and least sophisticated consumer. See Wallace v. Washington 

Mut. Bank, F.A., 683 F.3d 323, 326-27 (6th Cir. 2012); Grden v. Leikin Ingber & Winters 

PC, 643 F.3d 169, 172 (6th Cir. 2011); Scheuer v. Jefferson Capital Sys., LLC, No. 14-cv11218, 2014 WL 4435874, at *5 (E.D. Mich. Sept. 9, 2014). That distinction is 

immaterial here: the statement that Plaintiff had “an active balance of $219.01 with 

St. Mary’s,” was accurate both with respect to the “amount” owed ($219.01) and the 

debt’s “character” and “legal status” (an active debt on the books of St. Mary’s 

Hospital). See Compl. ¶ 16 & Ex. A; 15 U.S.C. § 1692e(2)(A). And, it strains credulity 

to argue that even the least sophisticated consumer could misinterpret Accretive 

Health’s letters, which instruct the debtor to “remit payment using the payment 

coupon above,” as being sent by a consumer advocacy group; even the least 

sophisticated consumer is presumed to have “a basic level of understanding.” Fed. 

Home Mortg. Corp. v. Lamar, 503 F.3d 504, 510 (6th Cir. 2007). 

2:14-cv-12864-VAR-MKM Doc # 18 Filed 02/09/15 Pg 16 of 27 Pg ID 301
 9 

collection of any amount . . . unless such amount is expressly authorized by the 

agreement creating the debt or permitted by law.” Opp’n 18. 

 That claim must fail. Plaintiff does not deny that the $219.01 (and, later 

$169.01) Accretive Health sought to collect accurately reflected the amount he was 

initially charged by St. Mary’s in the “agreement creating the debt.” See Compl. ¶ 16, 

19. Any attempt to collect that authorized amount more quickly than envisioned by a 

payment plan is not cognizable as a violation of Section 1692f(1). See Madigan v. 

Messerli & Kramer, P.A., No. CIV. 11-2667, 2011 WL 6760354, at *2 (D. Minn. Dec. 

23, 2011) (dismissing Section 1692f claim because, even if Defendant’s 

representations were “contrary to the . . . agreed upon payment plan, the FDCPA 

does not require compliance with an informal arrangement”); In re Uplinger, No. 

1:11CV1270, 2012 WL 7150435, at *1 (E.D. Va. Feb. 8, 2012), aff’d sub nom. Uplinger v. 

Rees Broome, P.C., 475 F. App’x 28 (4th Cir. 2012) (per curiam) (affirming summary 

judgment in favor of Defendant on Section 1962f(1) claim because “there was no 

enforceable agreement that [Plaintiff’s] payment of the amount she had proposed to 

pay, which was less than her total outstanding debt, would extinguish her delinquency, 

[so] it cannot be said that [Defendant] attempted to collect an amount other than the 

one expressly authorized by the agreement creating [her] debt”); cf. Pollice v. Nat’l Tax 

Funding, L.P., 225 F.3d 379, 408 (3d Cir. 2000) (in seeking to collect interest and 

penalties from Plaintiff, Defendant could not “rely on the [provision for such fees in 

Plaintiff’s] payment plans, as the plans are not the ‘agreement creating the debt’”). 

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II. Plaintiff’s Michigan-Law Claims (Counts II & IV) Should Be Dismissed. 

 Plaintiff’s allegations that Accretive Health violated Michigan’s Fair Debt 

Collection Practices Act (MFDCPA) similarly fail. In one breath, Plaintiff seeks to 

save his Complaint by suggesting that his Michigan state-law claims are similar to the 

FDCPA and ‘“need not be addressed separately.”’ Opp’n 29 (quoting Lovelace v. 

Stephens & Michaels Assocs., Inc., No. 07-10956, 2007 WL 3333019, at *2 (E.D. Mich. 

Nov. 9, 2007)). And in another, he contends that the MFDCPA’s requirements differ 

so significantly that the analysis should not be the same. See Opp’n 22-23 (suggesting 

that the MFDCPA’s scope differs from the FDCPA’s). Plaintiff is correct that the 

MFDCPA does not have the FDCPA’s explicit statutory exception for “defaulted 

debt.” But Plaintiff has not even provided “a formulaic recitation of the elements” of 

his MFDCPA claim, much less “enough facts to state a claim to relief that is plausible 

on its face.” Twombly, 550 U.S. at 555, 570. 

 In any event, because Plaintiff has failed to state a claim under the FDCPA, the 

“clear rule of this circuit” is that this Court should refuse to exercise supplemental 

jurisdiction over his state-law claims. Perry v. Se. Boll Weevil Eradication Found., Inc., 154 

F. App’x 467, 478 (6th Cir. 2005) (internal quotation omitted). “[A] federal court that 

has dismissed a plaintiff’s federal-law claims should not ordinarily reach the plaintiff’s 

state-law claims.” Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) 

(citation omitted). Instead, “[n]eedless decisions of state law should be avoided both 

as a matter of comity and to promote justice between the parties, by procuring for 

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them a surer-footed reading of applicable law.” United Mine Workers of Am. v. Gibbs, 

383 U.S. 715, 726 (1966); see also ibid. (“Certainly, if the federal claims are dismissed 

before trial . . . the state claims should be dismissed as well.”). 

 Accordingly, courts in this district routinely dismiss claims brought under the 

MFDCPA once they have dismissed a plaintiff’s related FDCPA claims. See, e.g., 

Gnesin v. Am. Profit Recovery, No. 12-CV-12595, 2012 WL 5844686, at *4 (E.D. Mich. 

Nov. 19, 2012); Sanford v. Portfolio Recovery Assocs., LLC, No. 12-CV-11526, 2013 WL 

5476272, at *1 (E.D. Mich. Oct. 2, 2013); South v. Midwestern Audit Servs., Inc., No. CIV. 

A. 09-14740, 2010 WL 5088765, at *7 (E.D. Mich. Aug. 12, 2010), report and 

recommendation adopted, No. CIV. 09-14740, 2010 WL 5089862 (E.D. Mich. Dec. 8, 

2010). The same result is appropriate here. 

III. Plaintiff Does Not Have Standing To Bring—And Has Not Adequately 

Pled—Claims Under the Laws of States and Municipalities Outside of 

Michigan (Counts III-V). 

 It is black-letter law that, in order to demonstrate standing, “named plaintiffs 

who represent a class must allege and show that they personally have been injured, 

not that injury has been suffered by other, unidentified members of the class to which 

they belong and which they purport to represent.” Lewis v. Casey, 518 U.S. 343, 357 

(1996) (internal quotation omitted). Accordingly, Plaintiff lacks standing to assert 

claims under the laws of any state other than Michigan. 

 Plaintiff argues that a standing determination is premature prior to class 

certification, citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. 

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Fibreboard Corp., 527 U.S. 815 (1999), for the broad proposition that class certification 

issues are “logically antecedent” to questions of standing. But, as most federal courts 

have recognized, Amchem and Ortiz’s “logical antecedence” holding is limited to the 

unusual procedural posture of those cases. In both cases, the standing of a subset of 

putative class members—not the standing of named plaintiffs—was questioned 

during a pre-class-certification global settlement proceeding. See Amchem, 521 U.S. at 

597, 612; Ortiz, 527 U.S. at 825-827, 830-31. Accordingly, in each case, class 

certification issues would determine whether the parties whose standing was suspect 

were even before the court. As such, the court did not need to address standing in 

order to ensure its jurisdiction: the standing issues simply “would not exist but for the 

[class-action] certification.” Amchem, 521 U.S. at 612 (alteration in original); see also In 

re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 153 (E.D. Pa. 2009) (“To rule on the 

issue of standing at that point in the case would have required the [Ortiz] Court to 

make a determination as to the standing of persons who were not actually parties to 

the case, but who were only proposed parties to the case.”). 

 Here, by contrast, it is the named plaintiff who lacks standing with respect to 

his own claims. As that plaintiff is already before the court, the court bears its usual 

obligation to ensure its own jurisdiction before proceeding to any merits 

determinations. See Steel Co. v. Citizens For a Better Envt., 523 U.S. 83, 88-89 (1998). 

Indeed, the Supreme Court was careful to limit its holdings in Amchem and Ortiz to the 

unique circumstances under which those cases arose, reaffirming the principle that 

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“[o]rdinarily, of course, this or any other Article III court must be sure of its own 

jurisdiction before getting to the merits.” Ortiz, 527 U.S. at 831.2

 Unsurprisingly, nearly every court of appeals to consider the question has read 

Amchem and Ortiz’s “logical antecedence” holding as establishing only a narrow 

exception to the bedrock legal principle that jurisdiction must be assured before 

merits may be considered. See, e.g., Easter v. Am. West Fin., 381 F.3d 948, 962 (9th Cir. 

2004) (“Although the court in [Ortiz] examined class issues before the question of 

Article III standing, it did so in the very specific situation of a mandatory global 

settlement class. [Ortiz] does not require courts to consider class certification before 

standing.”); Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 64-65 (2d Cir. 2012) (“We do not 

read [Amchem and Ortiz’s ‘logical antecedent’ language] as instructing courts to always 

treat class certification first and to treat the class as the relevant entity for Article III 

purposes.”); Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 & n.6 (5th Cir. 2002) 

(finding the Amchem/Ortiz “exception” inapplicable because, “[i]n the instant case, in 

contrast to Ortiz and Amchem . . . class certification did not create the jurisdictional 

issue.”); cf. In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 108 (D.C. Cir. 

 2 The Supreme Court further cabined its rulings by clarifying that the class 

certification issues in Amchem and Ortiz had special claims to priority since they 

“themselves pertain to statutory standing, which may properly be treated before 

Article III standing.” Ortiz, 527 U.S. at 831; see Lopez-Flores v. Resolution Trust Corp., 93 

F. Supp. 2d 834, 838 n.12 (E.D. Mich. 2000) (glossing Ortiz as establishing that “if the 

merits are bound up with issues of statutory standing that are ‘logically antecedent’ to 

issues of justiciability, statutory standing should be addressed first”), overruled on other 

grounds by Vill. of Oakwood v. State Bank & Trust Co., 539 F.3d 373 (6th Cir. 2008). 

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2002) (“[t]he question of constitutional standing [ ] is a prerequisite to Rule 23 class 

certification because it goes to the court’s jurisdiction”). A significant majority of 

district courts have come to the same conclusion. See, e.g., In re Packaged Ice Antitrust 

Litig., 779 F. Supp. 2d 642, 654 (E.D. Mich. 2011) (“[N]either Ortiz nor Amchem

requires that Article III standing issues be deferred until a class has been certified.”).3

 No court of appeals has addressed the precise situation here, in which a named 

plaintiff brings claims under state statutes under which he himself has no standing but 

that could afford standing to putative class members.4

 However, in this district—as in 

most others—consensus has emerged that such claims are properly dismissed. To be 

sure, the first court to address the question permitted a named plaintiff to bring claims 

under state statutes that afforded standing only to members of his putative class. See 

Hoving v. Transnation Title Ins. Co., 545 F. Supp. 2d 662, 666 (E.D. Mich. 2008). But, it 

 3 See also, e.g., Davidson v. Worldwide Asset Purchasing, LLC, 914 F. Supp. 2d 918, 

922 (N.D. Ill. 2012); Thunander v. Uponor, Inc., 887 F. Supp. 2d 850, 863 (D. Minn. 

2012); In re Checking Account Overdraft Litig., 694 F. Supp. 2d 1302, 1324–25 (S.D. Fla. 

2010); Temple v. Circuit City Stores, Inc., Nos. 06CV5303 and 06CV5304, 2007 WL 

2790154, at *8 (E.D.N.Y. Sept. 25, 2007); In re Salomon Smith Barney Mut. Fund Fees 

Litig., 441 F. Supp. 2d 579, 606 (S.D.N.Y. 2006); In re Eaton Vance Corp. Sec. Litig., 220 

F.R.D. 162, 166–70 (D. Mass. 2004); In re Enron Corp. Sec., Derivative & ERISA Litig., 

Nos. MDL-1446, CIVA.H-01-3624, 2004 WL 405886, at *23 (S.D. Tex. Feb. 25, 

2004); Matte v. Sunshine Mobile Homes, Inc., 270 F. Supp. 2d 805, 822 (W.D. La. 2003); 

Berry v. GMAC-Residential Funding Corp., No. 01-2713, 2002 WL 1797779, at *9 (W.D. 

Tenn. July 31, 2002). 

4

 Contrary to Anger’s suggestion, the Sixth Circuit has not directly addressed 

this issue. See Opp’n 23. Rather, the district court precedent he cites as establishing 

Sixth Circuit law squarely states the contrary. See Hoving v. Transnation Title Ins. Co., 

545 F. Supp. 2d 662, 666 (E.D. Mich. 2008) (“The Sixth Circuit has not addressed the 

issue directly.”).

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did so without the benefit of In re Wellbutrin, 260 F.R.D. at 152-56, the leading case on 

this question, and without addressing the court of appeals cases recognizing that Ortiz

and Amchem govern only the very specific context in which they were decided. 

Accordingly, every subsequent court in this district to decide the issue has rejected 

Hoving as unpersuasive. See, e.g., In re Packaged Ice, 779 F. Supp. 2d at 654 (noting 

Hoving’s contrary position before following Wellbutrin and dismissing named plaintiff’s 

claims under state statutes other than his own for lack of standing); In re Refrigerant 

Compressors Antitrust Litig., No. 2:09-MD-02042, 2012 WL 2917365, at *1, *5-6 (E.D. 

Mich. July 17, 2012) (finding In re Packaged Ice and Wellbutrin “persuasive” and 

dismissing named plaintiff’s claims under state statutes other than his own for lack of 

standing); Smith v. Lawyers Title Ins. Corp., No. 07-12124, 2009 WL 514210, at *3 (E.D. 

Mich. Mar. 2, 2009) (citing Easter in rejecting Hoving; “after a review of the relevant 

case law, the Court is persuaded that the ‘logical antecedent’ language should be 

construed in a manner that permits consideration of the standing issue now, prior to 

class certification”).5

 The same result is appropriate here. The alternative would allow 

 5

 This district’s consensus is also the strong majority position among other 

federal courts. See, e.g., In re Potash Antitrust Litig., 667 F. Supp. 2d 907, 920–923 (N.D. 

Ill. 2009) (named plaintiffs in putative class action did not have standing to assert 

claims under state statutes which would afford standing only to members of putative 

class), vacated on other grounds, 657 F.3d 650 (7th Cir. 2011); In re Flonase Antitrust Litig., 

610 F. Supp. 2d 409, 418–19 (E.D. Pa. 2009) (same); Thomas v. Metro. Life Ins. Co., 540 

F. Supp. 2d 1212, 1224-25 (W.D. Okla. 2008) (same); In re Graphics Processing Units 

Antitrust Litig., 527 F. Supp. 2d 1011, 1026–1027 (N.D. Cal. 2007) (same); Temple, 

2007 WL 2790154, at *8 (same); In re Ditropan XL Antitrust Litig., 529 F. Supp. 2d 

1098, 1106–07 (N.D. Cal. 2007) (same); Stone v. Crispers Rests., Inc., No. 06-cv-1086, 

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a plaintiff with no injuries under the laws of nearly every state to “piggy-back” on the 

claims of the class members he claimed to represent in order “to embark on lengthy 

class discovery with respect to injuries in potentially every state in the Union.” In re 

Packaged Ice, 779 F. Supp. 2d at 655-56. 

 In any event, to the extent the dozens of state and municipal laws Plaintiff cites 

also mirror the FDCPA, see Opp’n 28-29, those claims should be dismissed for failure 

to meet basic pleading obligations, see supra Part I.A, including failure to plead any 

specific conduct outside the state of Michigan.6

 “[A] plaintiff’s obligation to provide 

 

2006 WL 2850103 (M.D. Fla. Oct. 3, 2006) (same); Parks v. Dick’s Sporting Goods, Inc., 

No. 05-cv-6590, 2006 WL 1704477 (W.D.N.Y. June 15, 2006) (same); In re Terazosin 

Hydrochloride Antitrust Litig., 160 F. Supp. 2d 1365, 1371 (S.D. Fla. 2001) (same). 

6 Tellingly, Plaintiff fails to even address the fatal flaws Accretive Health 

highlighted with respect to his claims under Alabama, Minnesota, Iowa, and Nevada 

law. Compare Motion to Dismiss at 18 with Opp’n at 26-28. Nor are Plaintiff’s smokeand-mirrors attempts to save his claims under California, Arizona, and Connecticut 

law successful. For example, Plaintiff suggests that the facts he has pled would satisfy 

the heightened Rule 9(b) pleading burden required by California law. Opp’n 26-27. 

But, “to satisfy Rule 9(b), a plaintiff must generally . . . identify the fraudulent scheme 

and the fraudulent intent of the defendant; and [ ] describe the injury resulting from 

the fraud.” SFS Check, LLC v. First Bank of Del., 774 F.3d 351, 358 (6th Cir. 2014) 

(emphasis added); see also Kirkeby v. JP Morgan Chase Bank, No. 13cv377, 2014 WL 

7205634, at *7 (S.D. Cal. Dec. 17, 2014) (dismissing claim where Plaintiff failed to 

show that she had relied on Defendants’ representations). Here, Plaintiff has not 

alleged injury, and does not even claim to have alleged fraudulent intent or reliance. 

 Similarly, the cases Plaintiff cites in support of his Arizona-law claim 

demonstrate only that Arizona has read its Consumer Fraud Act, which prohibits 

fraud “in connection with the sale or advertisement of any merchandise,” to cover 

fraudulent inducement to enter into or modify a loan. See Munoz v. Fed. Nat’l Mortg. 

Ass’n, 2014 WL 3418426, at *3 (D. Ariz. July 14, 2014) (“the money in a loan is 

merchandise, the loan itself is a sale, and an oral inducement to take a loan is an 

advertisement”). Unlike money lending, debt collection does not fall within the 

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the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 

conclusions.” Twombly, 550 U.S. at 555. And, for the reasons discussed above, see 

supra Part II, to the extent this Court dismisses Plaintiff’s FDCPA claim, it should 

refrain from exercising supplemental jurisdiction over any ancillary state-law claims. 

CONCLUSION 

 For the reasons set out above and in Accretive Health’s opening memorandum, 

Plaintiff’s Complaint should be dismissed with prejudice. 

 

statute’s reach: “[a]llegations made in a complaint to repossess collateral are too 

attenuated from the underlying loan sale/advertisement to come within the statute’s 

purview.” Walker v. Gallegos, 167 F. Supp. 2d 1105, 1108 (D. Ariz. 2001). 

 Finally, Plaintiff’s arguments regarding Connecticut law are simply incorrect: he 

quotes from Gervais v. Riddle & Assocs. for the proposition that ‘“a violation of the 

FDCPA constituted the denial of an implied contractual benefit, which in turn 

satisfied CUTPA’s ‘ascertainable loss’ requirement.”’ See Opp’n 28 (quoting 479 F. 

Supp. 2d 270, 279 (D. Conn. 2007)). But, Plaintiff neglects to clarify that Gervais 

quoted the cited language in order to disparage it as “Plaintiff’s novel argument,” 

which the Court had previously adopted only in the very opinion Gervais vacated. 479 

F. Supp. 2d at 279; Larobina v. Wells Fargo Bank, No. 10-cv-01279, 2014 WL 3419534, 

at *3 n.1 (D. Conn. July 10, 2014) (“The decision in Gervais I was later vacated . . . 

[and the court] cast doubt on the relevant conclusion.”). Indeed, courts routinely cite 

Gervais for the proposition that a CUTPA claim requires ascertainable damages 

beyond the mere violation of the implied contractual benefit assured by the FDCPA. 

See Larobina, 2014 WL 3419534, at *3 n.1; Linsley v. FMS Inv. Corp., No. 11cv961, 2012 

WL 1309840, at *7 (D. Conn. Apr. 17, 2012); Wise v. Cavalry Portfolio Servs. LLC, No. 

09-cv-86, 2010 WL 1286884 (D. Conn. Mar. 30, 2010). 

 More fundamentally, Plaintiff’s efforts prove the point: his Complaint falls far 

short of Twombly’s pleading requirements with respect to the 40-plus state laws he 

cites. It is not incumbent on this court to parse the language of each statute, where 

plaintiff has neither recited their basic elements nor pled facts sufficient to show that 

he can plausibly state a claim under each one. Under such circumstances, neither the 

Court nor Defendant “has fair notice of what [each of the claims are] and the grounds 

upon which [they] rest[].” Twombly, 550 U.S. at 555 (internal quotations omitted). 

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Dated: February 9, 2014 Respectfully Submitted, 

/s/ Claire M. Murray

Leonid Feller (P73639) 

Kirkland & Ellis LLP 

300 North LaSalle 

Chicago, IL 60654 

Telephone: (312) 862-2000 

Fax: (3012) 862-2200 

leonid.feller@kirkland.com 

Jennifer G. Levy 

Claire M. Murray 

Kathleen A. Brogan 

Kirkland & Ellis LLP 

655 Fifteenth St., N.W. 

Washington, D.C. 20005 

Telephone: (202) 879-5000 

Fax: (202) 879-5200 

jlevy@kirkland.com 

claire.murray@kirkland.com 

kathleen.brogan@kirkland.com 

Attorneys for Defendant 

 

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CERTIFICATE OF SERVICE

 I hereby certify that on February 9, 2014, I electronically filed the foregoing 

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS with the 

Clerk of the Court by using the CM/ECF system, which will send a notice of 

electronic filing to all counsel of record in this action. 

Dated: February 9, 2014 /s/ Claire M. Murray

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