1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARC HIMMELSTEIN , Plaintiff,

v. Civil Action No. 12
- 14 75 (JEB) COMCAST OF THE DISTRICT, L.L.C , et al. , Defendant s .

MEMORANDUM OPINION
D issatisfied with his cable provider, Plaintiff Marc Himmelstein terminated his service agreement with Comcas t in June 2010

. His s ervices were subsequently disconnected , and Comcast’s equipment was removed from his home . A modem was mistakenly left behin d , however, and his account was charged $220 for the unreturned equipment . Th is outstanding balance was then forwarded to a collection agency

– Defendant Credit Protection Association, L.P. (CPA)

– and was ultimately reported to the national credit

- report ing agencies . Upon discovering the mix

- up, Himmelstein returned the modem to Comcast and sought to have the company correct his account. Despite reassurances from Comcast that the issue was resolved, the mistake remained on his credit report, which ultim ately resulted in Himmelstein ’s having to pay an additional $26,000 when he sou ght to refinance the mortgage on his home. Plaintiff thus brought this suit, asserting four causes of action against Comcast and three against CPA. 1 Himmelstein asserts claim s of breach of contract (Count I), breach of the implied covenant of good faith and fair dealing (Count II), negligence (Count III), and constructive fraud

1 Although Plaintiff names two different Comcast entities as Defendants, the Court, for ease of reference, w ill simply refer to them jointly as “Comcast.”2 (Count IV) against Comcast. He sues CPA for negligence (Count V), constructive fraud (Count VI), an d violations of the Fair Credit Reporting Act (Count VII). Although CPA has filed an Answer, Comcast n ow m ove s to dismiss Counts II

- IV under Rule 12(b)(6) for failure to state a claim upon which relief may be granted

. T he Court , agreeing with some defens e arguments, will grant the Motion as to Counts II and IV, and deny it as to Count III. Because Comcast has not challenged Count I, that claim, as well as those against CPA, may also proceed

. I. Background According to the Complaint, which must be presumed true at this stage, Himmelstein was a long

- time customer of Comcast, receiving residential cable and high

- speed internet services at
h is home in Northwest Washington

. See Compl., ¶ 9. These services were provided pursuant to a service contract with Comca st. See id. , ¶ 10 & Exh. A ( Comcast Agreement for Residential Services). Himmelstein elected to terminate his contract around June 2010 , contacting Comcast to schedule a time for services to be disconnected and the equipment to be removed from his home. See id. , ¶¶ 12, 14.
A Comcast technician came to his residence on June 17, 2012, to remove the equipment, picking up the cable box, but inadvertently leaving behind a modem. See id. , ¶¶ 15, 19, 21. Himmelstein, under the impression that all equipment had been picked up by the technician and that he would be receiving a credit for $123.19 wh en his account was terminated, contacted Comcast in August 2010 to inquire about the refund

. See id. , ¶ ¶ 15

- 19. On this call, he was informed for the first time th at he owed Comcast approximately $220 for cable

- modem equipment that had not been returned. See id. “Shortly thereafter, Himmelstein received a demand letter from a collection agency [CPA] seeking to recover, on Comcast’s behalf, the alleged $220.00 outs tanding balance.” Id. , ¶ 2 1 . He then contacted Comcast again regarding the3 status of the account and was told that the charge would be removed and corrected when he returned the missing modem. See id. Himmelstein located the missing modem and returned it immediately to Comcast. See id. , ¶ 22. Despite contacting Comcast “on at least three occasions,” Himmelstein received no written confirmation from Comcast that they had received the modem, but he was told that his account balance had been correcte d and he would be issued a refund check. See id. , ¶ 23. Himmelstein never received the refund check , however, and CPA continued to pursue collection of the $220 balance. See id. , ¶ ¶ 24

- 25. The collection agency, moreover , reported the debt to the natio nal credit

- reporting agencies in December 2010

. See id. , ¶ 26. When Himmelstein
contac ted CPA to dispute the debt, it acknowledged the error , ceased collection on the account , and contacted Comcast to report the account for deletion

– but never contacted the national credit bureaus regarding the mistake. See id. , ¶ ¶ 2 7

- 28

. Later that spring, Himmelstein sought to refinance his mortgage with Citibank. See id. , ¶ 29. His credit report continued to reflect the Comcast debt, despite Himmelstein’ s repeated efforts to redress this with both Comcast and CPA. See id. Because of this outstanding debt, Citibank required Himmelstein to pay an additional $26,000 (1% of the value of the mortgage)
for the same loan

. See id. , ¶ 30. In addition to the se added financing costs, he has never received the $123.19 credit he was owed upon termination of his account. See id. , ¶ 33.

II. Legal Standard Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails t o “state a claim upon which relief can be granted.” When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in a plaintiff’s favor. Leatherman v. Tarrant4 C n ty. Narcotics & Coordination Unit , 507 U.S. 163, 164 (1993). Although the notice

- pleading rules are “not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo , 544 U.S. 336, 347 (2005), and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 6 78 (2009) (internal quotation omitted). Plaintiff must put forth “factual content that allows the court to draw the reasonable inference that the defendant is lia ble for the misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if “ recovery is very remote and unlikely,” Twombly , 550 U.S. at 55 6 (citing Scheuer v. Rhodes , 416 U.S. 232, 236 (1974) ) , the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Id. at 555.
III. Analysis In moving to dismiss, Comcast raise s putative defects in three of the four causes of action asserted against it (Counts II, III & IV). It does not, however, seek to dismiss the breach

- of

contract claim (Count I)

. The Court will addres s the three challenges in turn.
A. Count II: Breach of the Implied Covenant of Good Faith and Fair Dealing Defendant first contends that Himmelstein has failed to allege facts that would permit the Court to infer that Comcast acted with the bad faith require d to state a claim for breach of the implied covenant of good faith and fair dealing

. See Mot. at 6

- 8. Plaintiff counters that it has alleged sufficient bad faith in “Comcast’s repeated egregious behavior and misrepresentations made throughout the collec tions process , ” and the “fact that Comcast’s errors and misrepresentations occurred at least three (3) times to a single customer is sufficient to infer that Comcast’s actions were not merely a simple ‘mistake, misunderstanding, or oversight,’ . . . but5 ro se to the level of bad faith.” Opp. at 12. The Court disagrees. The accounting mistakes made by Comcast in handling Himmelstein’s account

– while unquestionably frustrating

– do not raise an inference of bad faith sufficient to state a claim for breach of the covenant. The District of Columbia recognizes that “in every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the co ntract, which means that in every contract there exists an implied covenant of good faith and fair dealing

. ” Hais v. Smith , 547 A.2d 986, 987 (D.C. 1988) (internal quotation marks and citation omitted) ; see also Allworth v. Howard Univ. , 890 A.2d 194, 201 (D.C. 2006) ( “all contracts contain an implied duty of good faith and fair dealing” ) (internal citation omitted). A party may be liable for a breach of this duty if it “ evades the spirit of the contract, willfully renders imperfect performance, or interf eres with per formance by the other party

. ” Paul v. Howard Univ. , 754 A.2d 297, 310 (D.C. 2000)

. In Allworth , the court looked to the Restatement for guidance on the meaning of “good faith” in the context of a breach of the covenant , noting : The phrase “g ood faith” is used in a variety of contexts, and its meaning varies somewhat with the context. Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the o ther party; it excludes a variety of types of conduc t characterized as involving “bad faith” because they violate standards of decency, fairness or reasonableness. Allworth , 890 A.2d at 201

- 202 (quoting Restatement (Se cond) of Contracts § 205 cmt. a ). Th e court further observed that bad faith “ ‘ may be overt or may consist of inaction, ’ ” involving

“ ‘ evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and in terference with or failure to cooperate in the other party’s performance. ’ ” Id. (quoting Restatement § 205 cmt. d ).6 Significantly, the court noted that “ ‘ [b]ad faith means more than mere negligence . . . . ’ ” Id. (quoting Gupta v. New Britain Gen. Hosp. , 687 A.2d 111, 122 ( Conn. 1996) ) ; see also Maljack Prod

. , Inc. v. Motion Picture Ass ’ n of America, Inc. , 52 F.3d 373, 375 ( D.C. Cir. 1995) (apply ing California law, but noting breach of covenant requires “ a conscious and deliberate act, which unfairly fru strates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement ,” rather than “ honest mistake, bad judgment or negligence ”) (internal quotations and citations

o mitted)

. Plaintiff has failed to allege facts here that would permit the Court to infer that Defendant acted with the requisite bad faith or willfully rendered imperfect performance

. Defendant’s actions amount to a series of mistakes and were not the r esu lt of an interested or corrupt motive.
See Burnsed Oil Co. Inc. v. Grynberg , 320 Fed. App’x 222, 230 (5 th Cir. 2009) (applying Mississippi law in holding, “ Bad faith is more than bad judgment or negligence: it is a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as
to one’ s rights or duties, but by som e interested or sinister motive and implies the conscious doing of a wrong because of dishon est purpose or moral obliquity.”) (internal quotation mark s and citation omitted)

. While Himmelstein consistently attempts to frame Comcast’s actions as “bad faith” conduct, see Compl., ¶¶ 46

- 49, the Court must look beyond “‘labels and conclusions’

or ‘ a formulaic recitation of the elements of a cause of action, ’ ” when evaluating a Rule 12(b)(6) motion. See Iqbal , 556 U.S. at 678 ( internal citation omitted ). The Court cannot infer that Comcast’s bungled handling of Himmelstein’s account was m otivated by a malevolent intent; indeed , it appears that Comcast soug ht to redress its errors, tho ugh ultimately failing to do so, since it mailed Himmelstein a shipping box for the missing modem and “informed [him] that if7 the missing modem were located and returned, the charge would be removed and corrected.” Compl., ¶ 2 1. Additionally, “Comcast notified Himmelstein that his account balance had been corrected and a refund check would be issued automatically.” Id. , ¶ 23. Thes e allegations do
not permit a sufficient inference of bad faith, even if Comcast ultimately fai led to make good on these assurances

. The Court will thus grant Defendant’s Motion as to Count II.
B. Count III: Negligence Comcast next maintains that Plaintiff’s negligence claim fails because he did not sufficiently allege that Comcast owed him any du ty of care ; without such a duty, the mere negligent breach of a contract cannot sustain an action sounding in tort. See Mot. at 9

- 10. Himmelstein disputes this, arguing that the special relationship between a creditor and a debtor gives rise to an indepe ndent duty upon which his negligence claim is based

. See Opp. at 15

- 17. After first discussing th is duty question, the Court will address two other issues related to the negligence claim: the liability

- limitation provision in the contract and the economic

- loss doctrine.
1. Duty To establish a negligence claim, a plaintiff must show “(1) a duty, owed by the defendant to the plaintiff, to conform to a certain standard of care; (2) a breach of this duty by the defendant; and (3) an injury to the plaintiff proximat ely cau sed by the defendant’s breach.” Dist

. of Columbia v. Fowler , 497 A.2d 456, 46 2 n. 13 (D.C. 1985). A negligence claim based solely on a br each of the duty to fulfill one’ s obligations under a contract , however, is duplicative and unsustainable. See , e.g. , Choharis v. State Farm Fire and Cas

. Co. , 961 A.2d 1080, 1089 (D.C. 2008) (“[T]he tort must exist in its own right independent of the contract, and any duty upon which the tort is based must flow from considerations other than the contractual relat ionship.8 The tort must stand as a tort even if the contractual relationship did not exist.”). Plaintiff must thus allege an independent duty to support his negligence claim. Whether such a duty exists is a question of law for the Court. Hedgepeth v. Wh itman Walker Clinic , 22 A.3d 789, 811 (D.C. 2011). At issue, then, is “essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Id. at 793 (internal quotatio n mar ks and citation omitted); s ee also Islam v. Option One Mortg. Corp. , 432 F. Supp. 2d 181, 195 (D. Mass. 2006) (“‘[T]he problem of duty is as broad as the whole law of negligence, and . . . no universal test for it ever has been formulated. It is a sh orthand statement of a conclusion, rather than an aid to analysis in itself . . . . [D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled t o protection. ’” ) (quoting William L. Prosser & W. Page Keeton,
Prosser & Keeton on Torts , § 53, at 357

- 58 (5th ed. 1984) ). Plaintiff maintains that District of Columbia law “expressly recognizes” a duty resulting from the special relationship between a cre ditor and debtor. See Opp. at 16. He cites no authority from this jurisdiction , however, showing that a debtor

- creditor relationship standing alone creates a n independent duty that would support a negligence claim. Instead, Plaintiff directs the Court t o dicta in a footnote in Waldon v. Covington , 415 A.2d 1070 (D.C. 1980) , which noted that certain conduct may support a claim of intentional infliction of emotional distress where there is a special relationship , such as a debtor

- creditor relationship

. Se e id. at 1076 n.21 (citation omitted). Neither Waldon

– nor the 1939 D.C. Circuit case upon which it relies

– discussed the central question identified in Hedgepe th of whether, as a matter of policy,9 the law should extend the responsibility for negligent conduct to a creditor in a simple creditor

debtor relationship. In fact , there are at least two cases from this District suggesting that the creditor

- debtor relationship may not create such a duty. In Overseas Private Inv. Corp. v. Industria de Pesca,
N. A., Inc. , 920 F. Supp. 207 (D.D.C. 1996) , Judge Paul Friedman dismissed a counterclaim against OPIC, finding that no fiduciary duty existed be tween the creditor and debtor. See i d. at 209

- 10

. The Court stated that it was not persuaded that defendants/cou nter

- plaintiffs have alleged the basis for finding a fiduciary relationship. The relationship between a debtor and a creditor in a loan transaction is “ordinarily a contractual relationship

. . . a nd is not fiduciary in nature.” Yousef v. Trustbank Sav. , FSB , 568 A.2d 1134, 1138 ( Md. 1990); see Paradise Hotel Corp. v. Bank of Nova Scotia , 842 F.2d 47, 53 (3d Cir. 1988); Reid v. Key Bank of Southern Maine , 821 F.2d 9, 16

- 18 (1st Cir. 1987). Id. at 210. The court further noted that there were “no special c ircumstances” or any provisions in the parties’ contract that supported an argument that the lender had “assumed any special relationship of trust or confidence in this particular case.” Id. S ubsequently, in Ponder v. Chase Home Finance, LLC , 666 F

. Supp

. 2d 45 (D.D.C. 2009) , another court in this District dismissed

a borrower ’s claim of negligence arising from the lender ’s alleged failure to accurately deliver loan documents, finding there was no special duty owed by the defendant to the plaintiff. Id. at 49

- 50 . In so holding, the court recognized that “[t] he relationship between a debtor and a creditor is ordinarily a contractual relationship and not a fiduciary relationship. ” Id. at 49 (citing Overseas Private Inv. Corp. , 920 F. Supp. at 210 )

. Auth ority from outside this jurisdiction only further complicates the matter, with cases reaching conflicting outcomes on the issue of whether the debtor

- creditor relationship creates an independent duty sufficient to support a negligence claim. Compare Veriz on Advanced Data v.10 Frognet, Inc. , No. 05

- 955, 2010 WL 143 3 325, at *13 (S.D. Ohio April 2, 2010) (billing disput es between contracting parties may only be resolved “ through a contract action because Verizon did not have any legal duties in this regard sepa rate and apart from those it assumed in the agreement. Without a duty owed separately from that created by the contract, FrogNet’ s claim for negligence cannot stand.” ) (internal quotat ion marks and citations omitted ); Mercado v. Bank of America, N.A. , No. 12

- 1123, 2012 WL 5629749, at *4 (D.N.J. Nov. 15, 2012) (dismissing negligence claims and noting that “‘[t]he virtually unanimous rule is that creditor

- debtor relationships rarely give rise to a fiducia ry duty ’” ) ( quoting United Jersey Bank v. Kensey , 704
A .2d 38 (N. J. App. Div. 1997 ) ) ; Muller

- Paisner v. TIAA , No. 03

- 6265, 2012 WL 3205583, at *7 (S.D.N.Y. Aug. 9, 2012) (recognizing duty does not normally arise between parties in commercial transactions

– including creditor

- debtor relationship

– unless there is a “relationship of confidence, trust, or superior knowledge or control” ) (internal quotat ion marks and citations omitted ); LaPosta v. Lyle , No. 11

- 177, 2012 WL 1752550, at *7 (N.D.W.Va. May 16, 2012) (no duty sufficient to support negligence claim unle ss plaintiffs could establish “ that the relationship between the parties was such that the creditor went above and beyond the normal relationship between debtor and creditor so as to create a ‘special relationsh ip ’” ) (internal citation omitted) ; Zaffrullah v. Countrywide Home Loans, Inc. , No. 09

- 61142, 2010 WL 503074, at *5 (S.D. Fla. Feb. 8, 2010) (dismissing negligence claim where party “failed to plead a recognizable duty in what was an arms

- length creditor/de btor relationship ”); In re Montagne , No. 08

- 1 0916, 2010 WL 271347, at *9 (Bankr. D. Vt. Jan. 22, 2010) (no duty sufficient to support negligence claim by debtor against creditor where “the sources of ‘duty’ . . . are contract claims garbed in negligence clothing and are therefore insufficient to stat e a claim. [There is no duty] owed to him, independent of its contractual duty, and thus the negligence claim fails as a matter of law ”); with11 Vickie M. Champion v. Global Credit Card Serv

. , LLC , No. 12

- 1966, 2012 WL 3542225, at *8 (N.D. Ala. Aug. 15, 20 12) (recognizing “duties owed by a creditor to individuals to whom it issues credit are, e.g. , a duty to maintain accurate records and a duty not to report false information about those individuals to third parties”); Colo. Capital v. Owens , 227 F.R.D. 181 , 188 (E.D.N.Y. 2005) (finding that creditor owed debtor “a duty of reasonable care in the handling of his account, which incl udes the collection of his debt ”); Tourgeman v. Collins Financial Serv

. , Inc. , No. 08

- 1392, 2010 WL 4817990, at *6 (S.D. Cal. Nov. 22, 2010) (cit ing Colo. Capital as support for creditor

- debtor duty).
In a lengthy analysis of whether such a duty should be recognized , a di strict court in Massachu set t s recognized the “uncertainty surrounding the existence of a negligence duty.” Isla m , 432 F. Supp. 2d at 198. The court there ultimately permitted the negligence claims to move forward, but noted that if the plaintiffs were successful on those claims, “the Court may consider it appropriate to certify this question

– and the fully develo ped record

– to the Supreme Judicial Court of Massachusetts . . . for a definitive answer.” Id. Finding the question of duty similarly unresolved here, the Court will permit Plaintiff’s claims to proceed at this stage of the litigation , pending further b riefing by the parties after some discovery

. 2. Limitation of Liability Comcast also challenges the scope of damages that Plaintiff may obtain through h is negligence claim, maintaining that he is preempted from seeking consequential damages by the limita tion

- of

- liability provision in the c ontract. See Mot. at 10. Himmelstein contends that “the actual limitation of liability clause is far narrower” than Comcast contends and thus does not bar his claims. Opp. at 5 ; see also id. at 5

- 10. The Court agrees

.12 The parameters of these limitations are set forth in Section 11 of the Comcast Agreement for Residential Services, which is entitled “Limitation of Comcast’ s Liability

. ” See Mot., Exh. A ( Agreement ) at 10

- 15. In subsection (a), entitled “App lication, ” the agreement states: The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of Comcast and its underlying third

- party service providers, agents, suppliers, distributors, licensors and business partners (and their respective officers, employees, agents, contractors or representatives) which, but for that provision , would give rise to a cause of action in contract, tort or under any other legal doctrine. Id. at 10

- 11 (emphasis added). The limitations are thu s bounded by the subsequent p rovisions identifying the acts and omissions that are covered by the clause . These subsequent subsections of (b)

– (g) set forth limitations on liability related to : “Customer Equipment,” “Other Services or Equipment ,” “Software ,” “Disruption of Services,” “Directory Li stings, ” and “Third Parties.” Id. at 11

- 14. In each of these sub sections, the a greement identifies the specific type of harms covered by the limitation provision, as well as the scope of remedies availab le to the customer pursuant to these limitations. See id. Defendant appears to acknowledge that none of these provisions expressly cover s the underlying actions here, but maintains that “[b]illing for services, and any alleged billing errors and attenda nt collection activities, plainly result directly or indirectly from or in connection with Mr. Himmelstein’s use of Comcast’s service. But f or his subscription to and use of Comcast’s services, Mr. Himmelstein would not have any dispute with Comcast.” Re ply at 4. This reasoning, however, would render the specific provisions identifying the covered actions in subs ection s 11 (b)

- (g ) meaningless, as it would limit Comcast’s liability for any act or omission of any sort, since all such acts wo uld “plainly result directly or indirectly from or in connection with Mr. Himmelstein’s use of Comcast’s service.” Because the a greement circumscribes the13 limitations on liability to specific harms , and the harm here is not covered by any of these provisi ons, Himmelstein is not barred from seeking consequential damages by the liability

limitation provision in the a greement. 3. Economic

- Loss Doctrine The Court, however, cautions that it has serious concerns that Plaintiff’s claims may alternatively be barre d by the economic

- loss doctrine

– an issue that has not been discussed by
t he parties, but should be addressed in subsequent pleadings

. The economic

- loss rule “ bars a plaintiff from recovering for purely economic losses under a tort theory of negligence .” In re Michaels Stores Pin Pad Litig

. , 830 F. S upp. 2d 518, 528 (N.D. Ill. 2011) ; see also Potomac
P laza Terraces, Inc. v. QSC Prod. , Inc. , 868 F. Supp. 346, 354 (D.D.C. 1994) (adopting economic

- loss doctrine) ; RLI Ins. Co. v. Pohl, Inc. of America , 468 F

. Supp. 2d 91, 94 (D.D.C. 2006) ( finding “the District of Columbia ‘has not authorized tort recovery for purely econom i c losses in a contract setting’ ”) ( quoting Furash & Co. v. McClave , 130 F. Supp. 2d 48, 56 (D.D.C. 2001))

. Almost all of the loss here re sult s from the higher cost of financing for Himmelstein’s mortgage. See Compl., ¶ 54 (“Himmelstein has suffered damages rel ated to: unpaid refunds of prepaid fees; fees charged by mortgage lenders on Himmelstein’s March 2011 refinance; pre

filing attorney ’s fees related to correction of the improper accounting; post

- filing attorney’s fees; and other fees and costs . . . .”) . While there do not appear to be any cases within this jurisdiction where a court has reviewed such damages under the economic

- loss d octrine, there are several cases from Texas that have rejected similar claims involving damages resulting from increased borrowing costs. In B lanche v. First Nationwide Mortg. Corp. , 74 S.W. 3d 444 (Tex. App. 2002), the court rejected a negligence claim s temming from the lender ’s handling of the14 borrower ’s account and incorrect reporting of account information to credit bureaus, where the specified damages included “the denial of various loans and the payment of higher interest
rates.” Id. at 453. Additi onally, in Belanger v. BAC Home Loans Servicing, L.P. , 839 F. Supp. 2d 873 (W.D. Tex. 2011) , relying upon Blanche , a district court held that Belanger’s negligence claim was barred where “the only damages claimed by Belanger are the increased costs of borr owing , ” due to the damage to his credit score. Id. at 877; see also Sanghera v. Wells Fargo Bank, N.A. , No. 10

- 2414, 2012 WL 555155 , at *6 (N.D. Tex. Feb. 21, 2012) ( loss of creditworthiness an economic damage arising from breach of parties’ contractual r elationship , which was barred by economic

- loss rule ); In re Thrash , 433 B.R. 585, 598

- 600 (N.D. Tex. Bankr. 2010) (court did not reach question of whether duty existed, finding negligence claims were otherwise barred b ecause parties’ inability to refinance their home and increased interest rates resulting from delinquency d efendant reported to credit bureaus were not damages that supported a negligence claim )

. While none of these cases is controlling, the Court nonetheless finds the reasoning sufficiently persuasive to require Plaintiff to explain in further submissions why his negligence claim should survive

. C. Count IV: Constructive Fraud Finally, Defendant contends that Himmelstein’s constructive

- fraud count should be dismissed as he cannot alle ge the “confidential relationship” essential for such a claim. See Mot.
at 11

- 12

. Himmelstein’s relationship with Comcast is limited to that of a cable subscriber to his cable

- services provider, Defendant argues, and there are no facts suggesting the rel ationship extended beyond the terms of their contract. See id. at 12. Plaintiff responds that no confidential relationship is required to assert a cause of action for constructive fraud and that he has alleged sufficient facts to sustain this claim based on Comcast’s breach of its legal duty to keep an15 accurate assessment of Himmelstein’s account and to accurately report the status of the account to credit agencies

. See Opp. at 14

- 15. The Court rejects Himmelstein’s attempt to eliminate the special

- rela tionship requirement from a constructive

- fraud claim . Even if this relationship were not required, the claim would nonetheless fail as Plaintiff has not allege d that he relied on Comcast’s representations. Under District of Columbia law, a plaintiff cl aiming fraud must prove “(1) the defendant made a false representation; (2) in reference to material fact; (3) with knowledge of its falsity; (4) with the intent to deceive the plaintiff; (5) the plaintiff acted in reasonable reliance on that representatio n; (6) which consequently resulted in provable damages.” Essroc Cement Corp. v. CTI/D.C., Inc. , 740 F. Supp. 2d 131, 145 (D.D.C. 2010) ; see also Schiff v. AARP , 697 A.2d 1193, 1198 (D.C. 19 97) (citing Howard v. Riggs Nat’l Bank , 432 A.2d 701, 706 (D.C.198 1)). Constructive fraud includes all the same elements as actual fraud , except the intent to deceive.
See De May v. Moore & Bruce, L.L.P. , 584 F. Supp. 2d 170, 185 (D.D.C. 2008) (“neither actual dishonesty nor intent to deceive is the essential element [ of constructive fraud]; and negligence so gross as to deceive might be such fraud”) (citing Rick v. United States , 161 F.2d 897, 899 (D.C. Cir. 1947) )

. In addition to these requirements, c onstructive fraud requires a plaintiff to demonstrate the existenc e of a confidential relationship between himself and the defendant, “by which the defendant is able to exercise extraordin ary influence over plaintiff.” McWilliams Ballard, Inc. v. Broadway Mgmt. Co. , 636 F. Supp. 2d 1, 7 n. 7 (D.D.C. 2009) ( quoting Withe rspoon v. Philip Morris , 964 F. Supp. 455, 461 (D.D.C. 1997)) (internal quotation marks omitted) ; see also Lee v.
Bos , No. 11

- 1982, 2012 WL 2852235 , at *3 (D.D.C. July 11, 2012) (citing 3D Global Solutions, Inc. v. MVM, Inc. , 552 F. S upp. 2d 1, 8 (D.D.C. 2 008))

. The requisite “special relationship”16 requires more than parties ’ transacting at arms ’ length and is one “ in which one party has gained the trust and confidence of the other, enabling the first party to exercise extraordinary influence over the oth er.” 3D Global Solutions, Inc. , 552 F. S upp. 2d at 8 (quoting Witherspoon , 964 F. Supp. a t 461) (internal quotation marks omitted); s ee also Cordoba Initiative Corp. v. Deak , No.
11

- 1541, 2012 WL 5285132, at * 5 (D.D.C . Oct. 26, 2012) (special relationship where “special
trust and confidence” based on Deak ’s “advising and suppor ting Cordoba over several years ”).
In Goldman v. Bequai , 19 F.3d 666 (D.C. Cir. 1994), this Circuit , applying District of Columbia law, provided guidance on the factors to use in de termining whether such a relationship exists: “ Mental capacity, age, education, business knowledge, and the extent to which the alleged victim entrusted her affairs to the other party are among the relevant factors in establishing the existence of such a r elation .” Id. at 6 74

. Given this high threshold , the Court declines Plaintiff’s invitation to find “constructive fraud, absent a confidential relationship, where a defendant’s conduct violates a public confidence.” Opp. at 14 (pointing to authority from outside the District of Columbia , such as “[m]any state and federal courts, including Maryland,” but acknowledging no precedent for such an interpretation in D.C. ). Holding that a confidential relationship is required , the Court finds that Plaintiff has not alleged sufficient facts to suggest its existence here

. As a court in this District noted in Witherspoon , “E stablishing a confidential relationship is a difficult burden .” 964 F. Supp. a t 461. The court there rejected the plaintiff’s argument that the manufacturer

- consumer relationship could be characterized as confidential because of its length of time

– 38 year s

– and the fact that the consumer had received “personalized mail” from the manufacturer, noting that the plaintiff was “only one of milli ons of consumers and potential consumers targeted by Defendant’s ad vertisements , ” and the personalized mail the plaintiff received from the defendant17 “is not enough to create a relationship of trust that could be likened to one with a close family member, attorney, or a priest from whom one gets personal counseling.” I d. at 461

- 62; see also Geiger v. Crestar Bank , 778 A.2d 1085, 1095 (D.C. 2001) (no special relationship where parties’ interactions were limited to contractual agreement and no facts “detaili ng a history of interaction between Mr. Geiger and Crestar which extended their relationship beyond the provisions of the account agreement ”)

. Similarly, Himmelstein’s interactions with Comcast did not create any relationship of special trust , nor do his phone contacts with various Comcast representatives subsequent to the termination of services transform this basic consumer relationship into something more. Even if Himmelstein could allege such a relationship, he cannot satisfy the detrimental

relianc e element of constructive fraud , as h e does not allege that he took any action

– or refrained from taking any

– in reliance on Comcast’ s representations. See Essroc , 740 F. Supp. 2d at 145

. The Court will thus grant Defendant’s Motion as to Count IV.
IV. Con clusion For the foregoing reasons, the Court will issue a contemporaneous Order this day granting Defendant’s Motion to Dismiss Counts II and IV and denying its Motion as to Count
III.

/s/ **James E. Boasberg** JAMES E. BOASBERG United States District Judge Date: December 10, 2012