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Himmelstein v. Comcast of the Dist., L.L.C.

United States District Court, District of Columbia

December 10, 2012

Marc HIMMELSTEIN, Plaintiff,
COMCAST OF THE DISTRICT, L.L.C., et al., Defendants.

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[Copyrighted Material Omitted]

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Nathan I. Finkelstein, Finkelstein & Goldman, P.C., Bethesda, MD, Matthew E. Feinberg, Finkelstein & Goldman, PC, Washington, DC, for Plaintiff.

Adam Shartzer Caldwell, Leslie Gallagher Moylan, Davis Wright Tremaine, LLP, Washington, DC, Ronald S. Canter, The Law Offices of Ronald S. Canter, Rockville, MD, for Defendants.


JAMES E. BOASBERG, District Judge.

Dissatisfied with his cable provider, Plaintiff Marc Himmelstein terminated his service agreement with Comcast in June 2010. His services were subsequently disconnected, and Comcast's equipment was removed from his home. A modem was mistakenly left behind, however, and his account was charged $220 for the unreturned equipment. This outstanding balance was then forwarded to a collection agency— Defendant Credit Protection Association, L.P. (CPA)— and was ultimately reported to the national credit-reporting 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 ultimately resulted in Himmelstein's having to pay an additional $26,000 when he sought 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 claims 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 (Count IV) against Comcast. He sues

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CPA for negligence (Count V), constructive fraud (Count VI), and violations of the Fair Credit Reporting Act (Count VII). Although CPA has filed an Answer, Comcast now moves to dismiss Counts II-IV under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The Court, agreeing with some defense 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 his home in Northwest Washington. See Compl., ¶ 9. These services were provided pursuant to a service contract with Comcast. 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 when 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 that 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 outstanding balance." Id., ¶ 21. He then contacted Comcast again regarding the 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 corrected 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 national credit-reporting agencies in December 2010. See id., ¶ 26. When Himmelstein contacted 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., ¶¶ 27-28.

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

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II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails to " 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. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (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, 125 S.Ct. 1627, 161 L.Ed.2d 577 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). Plaintiff must put forth " factual content that allows the court to draw the reasonable inference that the defendant is liable 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 556, 127 S.Ct. 1955 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955.

III. Analysis

In moving to dismiss, Comcast raises 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). ...

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