UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF TEXAS 

BEAUMONT DIVISION 

Dajore J. Marks, 

 Plaintiff, 

 v. 

Javitch Block LLC, 

 Defendant. 

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CASE NO. 1:23-cv-00431-MJT-CLS 

JUDGE: Michael J. Truncale 

MAGISTRATE JUDGE: Christine L. Stetson 

DEFENDANT JAVITCH BLOCK LLC’S 

REPLY IN SUPPORT OF 

MOTION TO DISMISS PLAINTIFF DAJORE J. MARKS’ COMPLAINT 

 Now comes Defendant Javitch Block LLC (“Javitch”), by and through the undersigned 

counsel, and for its reply to Plaintiff Dajore Marks’ (“Marks”) Response (ECF No. 6) to Javitch’s 

motion to dismiss (ECF No. 5), states as follows. 

I. INTRODUCTION 

 Javitch’s motion attached three letters referred to in the complaint, all of which were central 

to Marks’ claims, the same are undisputed and may be considered when ruling on Javitch’s motion. 

ECF Nos. 5-1 (9/29/23 Javitch letter to Marks), 5-2( 10/17/23 Marks letter to Javitch), 5-3 

(10/30/23 Javitch letter to Marks). Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 

(5th Cir. 2004). 

Javitch’s motion asserted that Marks lacked Article III standing because Marks failed to 

show a causal connection between the claimed injury and the conduct complained of, and the only 

alleged injury Marks claims to have suffered as a result of Javitch mailing its October 30 

verification response (as opposed to emailing it) appeared as a conclusory assertion in paragraph 

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15, that Javitch “caused injury in fact, by causing among other things, mental and emotional 

distress... [and] invasion of personal privacy....” ECF No. 5, PageID#21-23; ECF No. 1 ¶ 15. 

 Javitch further argued that Marks’ claim under 15 U.S.C. § 1692c(a)(1) failed as a matter 

of law because: 

 (a) Marks’ October 17 letter disputing the debt, requesting verification and stating that the 

“only convient [sic] way to contact me is via email,” did not identify a time or place or 

time or place known to be inconvenient to the consumer, and instead concerned a preferred 

medium of communication (which falls under 15 U.SC. § 1692d and 12 C.F.R. § 

1006.14(h)), but even if it was an expression of a time or place, the October 30 letter was 

allowed to be mailed in response to a consumer-initiated mailing, pursuant to the CFPB 

official interpretation of 12 C.F.R. § 1006.6(b)(1); ECF No. 5, PageID# 23-24; 

(b) Marks’ October 17 letter disputed the debt and requested verification, and 15 U.S.C. 

§1692g(b) statutorily required Javitch to mail the verification response; ECF No. 5, 

PageID# 24-25; 

(c) The October 30 letter Javitch sent to Marks was not a collection attempt, but provided 

requested verification without containing any demand for payment; ECF No. 5, PageID# 

25-26; and 

(d) 12 C.F.R. § 1006.14(h), which governs consumer-driven restrictions on the medium of 

communication, contains two exceptions under 12 CFR § 1006.14(h)(2)((ii) and (iii), both 

of which apply here. The first, authorizing one response using the same medium as the 

sender used to convey the restriction, and second, when the medium used is required by 

law. ECF No. 5, PageID# 26-27. 

Marks spends nearly all of his response in opposition arguing that Javitch’s position on 

standing, present a “fundamental misapplication of legal principles when applied to the present 

case under 15 U.S.C. § 1692c(a)(1) of the FDCPA” ECF No. 6, PageID# 52. He asserts Perez and 

TransUnion do not apply here because his claim under § 1692c(a)(1) concerns an invasion of 

privacy, “intruding upon his seclusion. This intrusion resulted in Mr. Marks experiencing 

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frustration, anger, and anxiety. The unwanted communication directed at Mr. Marks exemplify the 

type of actions that Congress intended to prohibit when enacting the FDCPA.” ECF No. 6, 

PageID# 56, 62. Marks argues that the intangible harm he seeks to remedy for the October 30 letter 

concern an “unwanted contact” and is similar to the privacy tort of intrusion upon seclusion as 

outlined in Restatement (Second) of Torts § 652A(2)(a) and § 652B(1977). ECF No. 6, PageID# 

57. Marks concludes by arguing “unwanted” calls and texts are sufficient to confer standing under 

the FDCPA, relying on Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020), DiNaples v. 

MRS BPO, LLC, 934 F.3d 275 (3d Cir. 2019), and Lupia v Medicredit, 8 F.4th 1184(10th Cir. 

2021). ECF No. 6, PageID 57-61. 

Marks does not directly respond to Javitch’s arguments above as to the merits; he presents 

a dictionary definition of the word “place” as used in 1692c(a)(1), but doesn’t explain how mailing 

a letter rather than emailing it falls within his definition; ECF No. 6, PageID# 50; he concedes he 

has made no claim under 15 U.S.C. § 1692g(b), but does not address the cases cited explaining the 

relationship between § 1692c(a)(1) § 1692g(b); ECF No. 6, PageID# 62 (ECF No. 5, pageID # 

25)(citing Marino, Clark, and Schultz); he acknowledges 12 C.F.R. § 1006.14(h), the regulation 

governing the medium of communications exists, but does not explain why he believes the 

exceptions to that restriction are inapplicable here, ECF No. 6, PageID# 51; and he maintains the 

October 30 letter was a collection attempt, but he does not point to anything in the October 30 

verification response qualifying as a demand for payment. ECF No. 6, PageID# 57. 

II. ARGUMENT 

A. Marks lacks Article III standing to maintain this action 

 The primary fallacy in Marks’ arguments on standing emanates from his selective reading 

of only the third sentence in his October 17 letter, as if it were the only sentence. See ECF No. 5-

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2, PageID #34. Beyond repeating what the complaint alleged, Marks opposition does not 

acknowledge that his October 17 letter to Javitch actually contained language in the first two 

sentences disputing the debt and requesting verification: “I am disputing the alleged debt” and “I 

need validation of the debt.” ECF No. 5-2, PageID #34. Because his letter is referred to in the 

complaint, ECF No. 1 ¶ 9, it is central to his claim, and Marks did not make any objection to the 

submission of the letters, nor submit any other materials, the court may consider the letters 

undisputed in resolving Javitch’s motion. Morris v. United States, No. 1:22-CV-227, 2023 WL 

8699378, at *3 (E.D. Tex. Dec. 14, 2023); Copeland v. U.S. Bank Nat'l Ass'n, No. 3:19-CV-02110-

L-BT, 2020 WL 4007129, at *2 (N.D. Tex. Apr. 6, 2020), R &R adopted, 2020 WL 1969313 (N.D. 

Tex. Apr. 24, 2020). 

Marks’ generalized assertion of injury in the complaint are overcome here by the factual 

showing made by the documents attached to Javitch’s motion, showing that the injury complained 

of was invited by Marks’ dispute and request for verification of the debt under 15 U..S.C. § 

1692g(b), and therefore any injury he suffered was self-inflicted. Clapper v. Amnesty Int'l USA,

568 U.S. 398, 418 (2013); Zimmerman v City of Austin, 881 F3d 378, 389 (5th Cir 2018)(“standing 

cannot be conferred by a self-inflicted injury.”). A self-inflicted injury is not fairly traceable to the 

conduct of the defendant. Kinetica Partners, LLC v. U.S. Dep't of the Interior, 505 F. Supp. 3d 

653, 668 (S.D. Tex. 2020) (collecting cases). 

Marks’ October 17 letter announcing that he disputed the debt and ‘I need validation of the 

debt,” invited Javitch to send him verification pursuant to 15 U.S.C. § 1692g(b). Marks’ common 

law analog to intrusion upon seclusion under Restatement (Second) of Torts § 652B, falls flat here 

because the common law only afforded a remedy for intrusion upon seclusion when “One ... 

intentionally intrudes...” and the word “intrude” means “to thrust oneself in without invitation, 

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permission, or welcome.”1

 Restatement (Second) of Torts § 652B; Amin v. United Parcel Serv., 

Inc., 66 F.4th 568, 577 (5th Cir. 2023)(“§ 652B makes ‘the intrusion itself’ the basis for 

liability....”). An invitation negates the very concept of an intrusion under § 652B. See Lingar v. 

Live-In Companions, Inc., 300 N.J. Super. 22, 35, 692 A.2d 61, 67 (App. Div. 1997)(“Here, 

plaintiffs invited Mack into their home. No evidence was presented supporting the claim of an 

unlawful intrusion”); Acacia on the Green Condo. Assoc., Inc. v. Gottlieb, 2009 WL 2964373, 

2009-Ohio-4878, ¶ 61, 63 (“The contractor then invited Jevnikar inside the unit. ... Jevnikar did 

not enter without the consent of the occupant....Finding that Gottlieb could not provide sufficient 

evidence to establish there was an unauthorized entrance, we conclude summary judgment was 

properly granted.”).

The cases relied on by Marks are no help either. Gadelhak, which found standing for 

“unwanted text messages” under the TCPA, is distinguishable because Javitch’s October 30 

response was not “unwanted;” instead, it was specifically requested by Marks. Gadelhak v. AT&T 

Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020). DiNaples, which concerned protected information 

made accessible to the public, is also inapt because here, there was no information made accessible 

to the public. DiNaples v. MRS BPO, LLC, 934 F.3d 275, 280 (3d Cir. 2019). Lupia is likewise 

inapplicable because it concerned “continuing to call her after ...[the defendant] received her 

cease-and-desist letter” and there was no directive to cease communications in this case. Lupia v. 

Medicredit, Inc., 8 F.4th 1184, 1191 (10th Cir. 2021). 

As argued in Javitch’s motion, here, Marks requested verification, and his request 

distinguishes this case from those involving a cease communication directive under 15 U.S.C. § 

1692c(c). Indeed, Courts have found a request for verification gives rise to a waiver of the cease 

1

 https://www.merriam-webster.com/dictionary/intrude 

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communication directive. Clark v. Cap. Credit & Collection Servs., Inc., 460 F.3d 1162, 1172 

(9th Cir. 2006); see also Mammen v. Bronson & Migliaccio, LLP, 715 F. Supp. 2d 1210, 1217 

(M.D. Fla. 2009). The request for verification likewise makes this case distinguishable from those 

cases finding an analog between common law privacy/intrusion upon seclusion claims and cease 

communication directives under 15 U.S.C. § 1692c(c). ECF No. 5, at n. 1, PageID #22. 

B. Marks has no support for the proposition that his October 17 letter is governed by 

15 U.S.C. § 1692c(a)(1). 

Marks’ October 17 letter does not include any reference to an inconvenient time or place, 

nor any instruction to cease communicating with him, and he offers no support for his novel theory 

that § 1692c(a)(1) includes a consumer’s preference for emails. To the extent Marks argues the 

definition of “place” in the statute refers to “a building, part of a building, or area occupied as a 

home,” Opposition, p. 3, his October 17 letter does not identify any building, or area occupied of 

a building or home that would be inconvenient to receive communications. Instead, in light of the 

plain meaning of “email,” as “a means or system for transmitting messages electronically (as 

between computers on a network),”2

 one would generally understand that an email sent to Marks 

at his designated email address would likely be received by him on a computer kept at his home 

or on his phone, which goes with him from place to place, undermining the notion that a preference 

for emails is tantamount to a convenient “place.” 

A more natural reading of Marks’ October 17 letter is that it contains a preferred medium

of communication, which is not governed by 15 U.S.C. § 1692c(a)(1) at all. See 12 C.F.R. § 

1006.2(d), Official Interpretation of 2(d)(1).3

 A “medium” is, plainly defined, as a “a means of 

2

 https://www.merriam-webster.com/dictionary/email. 

3

 “1. Any medium. Section 1006.2(d) provides, in relevant part, that a communication can occur 

through any medium. ‘Any medium’ includes any oral, written, electronic, or other medium. For 

example, a communication may occur in person or by telephone, audio recording, paper document, 

mail, email, text message, social media, or other electronic media.” 

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effecting or conveying something” or a “channel or system of communication.”4

 Failing to notify 

Javitch of any time or place that was inconvenient is fatal to his claim. Lindley v. TRS Recovery 

Assocs., Inc., No. 2:12-CV-109, 2012 WL 6201175, at *4 (S.D. Tex. Dec. 12, 2012)(“Regular 

United States Mail to a last known residential address is not on its face “unusual” or 

“inconvenient.”). 

C. Marks abandoned his claim by failing to address Javitch’s motion to dismiss for 

failure to state a claim 

A plaintiff's failure to address arguments in a dispositive motion to dismiss constitutes 

abandonment of that claim. See, e.g., Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 

2006) (claim abandoned by plaintiff when she failed to defend it in response to motion to dismiss); 

Terry Black's Barbeque, LLC v. Sate Auto. Mut. Ins. Co., 22 F.4th 450, 459 (5th Cir. 2022) (“A 

plaintiff abandons claims when it fails to address the claims or oppose a motion challenging those 

claims.”). 

Marks does not address Javitch’s argument that it was entitled to mail the verification 

response pursuant to 15 U.S.C. § 1692g(b) and the Official Interpretation of 12 C.F.R. § 

1006.6(b)(1) ¶ 2,5

 12 C.F.R. § 1006.14(h)(2)((ii) and (iii).6 

4

 https://www.merriam-webster.com/dictionary/medium 

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 “2. Consumer-initiated communication. If a consumer initiates a communication with a debt 

collector at a time or from a place that the consumer previously designated as inconvenient, the debt 

collector may respond once at that time or place through the same medium of communication used 

by the consumer.” 

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 “(2) Exceptions. Notwithstanding the prohibition in paragraph (h)(1) of this section:...(ii) If a person 

initiates contact with a debt collector using a medium of communication that the person previously 

requested the debt collector not use, the debt collector may respond once through the same medium 

of communication used by the person; or (iii) If otherwise required by applicable law, a debt collector 

may communicate or attempt to communicate with a person in connection with the collection of any 

debt through a medium of communication that the person has requested the debt collector not use to 

communicate with the person.” 

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For the reasons previously set forth by Javitch and not opposed by Marks, grounds exist to 

dismiss for failure to state a claim. See supra, ¶ I (a)-(d). 

III. CONCLUSION 

For all the foregoing reasons, Defendant Javitch Block LLC respectfully prays that the 

Court grant its motion to dismiss, find Marks lacks Article III standing to maintain this action, or 

alternatively dismiss this action for failure to state a claim, and for such other and further relief 

that the Court deems just and proper under the circumstances. 

Dated: December 28, 2023 Respectfully Submitted 

/s/ Michael D. Slodov 

Michael D. Slodov, OH SCR #0051678 

JAVITCH BLOCK LLC

1100 Superior Ave., 19th Floor 

Cleveland, OH 44114 

(866) 881-2400 ext. 2781 

Direct (440) 318-1073 

(fax) (216) 685-3039 

mslodov@jbllc.com 

 Attorneys for Defendant 

Javitch Block LLC 

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CERTIFICATE OF SERVICE 

 I certify that on December 28, 2023, a copy of the foregoing was filed electronically in the 

ECF system. Notice of this filing will be sent to the parties of record by operation of the Court’s 

electronic filing system, including plaintiff’s counsel as described below. Parties may access this 

filing through the Court’s system. A true copy was also sent on December 28, 2023 by email to: 

Dajore J Marks 

3760 Broadmoor Drive 

Beaumont, TX 77707 

Dmarks2011grad@gmail.com 

 

s/ Michael D. Slodov 

 Michael D. Slodov 

 

 

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