Ferrari v. U.S. Equities Corp. et al

Filing 59

ORDER Dismissing Complaint Without Prejudice. Defendant's motion for judgment on the pleadings (Doc. # 18 ) is granted in part, and the complaint is dismissed without prejudice to plaintiff re-filing an amended complaint. If plaintiff wishes to file an amended complaint, she must do so within 30 days, by November 14, 2014. Following the filing of an amended complaint, the parties should promptly contact chambers for a telephonic conference to set an expeditoius schedule for further pleading s and motions. Defendants' motion for judicial notice (Doc. # 20 ) and plaintiff's motion for summary judgment (Doc. # 53 ) are denied as moot in light of the dismissal of the complaint. Signed by Judge Jeffrey A. Meyer on 10/14/2014. (Ramesh, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LIZ FERRARI,
Plaintiff,
v.
No. 3:13-cv-00395 (JAM)
U.S. EQUITIES CORP.,
LINDA STRUMPF, and
OLGA MOISES,
Defendants.

ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE
Plaintiff Liz Ferrari brings this action against defendants U.S. Equities Corp. and its
agents Linda Strumpf and Olga Moises for violations of the Fair Debt Collection Practices Act
(―FDCPA‖), the Connecticut Creditor‘s Collection Practices Act (―CCPA‖), and the Connecticut
Unfair Trade Practices Act (―CUTPA‖). Plaintiff complains that defendants engaged in unlawful
debt collection relating to a Connecticut small claims court proceeding. Defendants have moved
pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings, both on grounds of res judicata
and collateral estoppel as well as on grounds that the complaint fails to state a claim for relief.
Because I conclude that the complaint fails to set forth a short and plain statement for relief as
required under Fed. R. Civ. 8, I grant defendants‘ motion in part and dismiss the complaint
without prejudice to plaintiff‘s filing an amended complaint that appropriately sets forth facts to
plausibly entitle the plaintiff to relief against each defendant for each of plaintiff‘s statutory
claims.
Background
The Court‘s review of this case is complicated by the filing of a stream-of-consciousstyle complaint that falls well below an acceptable standard of clarity. As best as I can tell,
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however, the complaint is inextricably intertwined with prior litigation between the parties in
Connecticut small claims court.
Plaintiff principally alleges that she was subject to a small claims action by defendants
that she did not learn about until her wages were attached after a default judgment had entered in
July 2012. Compl., Doc. #1 at ¶¶ 8–9. Almost all of the complaint is devoted to attacking the
quality of the defendants‘ proof in the small claims court case. First, plaintiff states that
defendants obtained a small claims court judgment by filing an affidavit that falsely claimed
―personal‖ knowledge of a certain ―Chase‖ account, which was assigned to one ―Turtle Creek
Assets,‖ before being assigned to defendant U.S. Equities Corp (―Equities‖). Id. ¶ 10. Plaintiff
alleges that the affidavit‘s ―affiant‖—possibly defendant Moises—did not actually have
―personal‖ knowledge of the affairs of Chase or Turtle Creek. Id. ¶ 10–11.1 ―In fact,‖ declaims
plaintiff, ―Equity [sic] had purchased from Turtle Creek only a spreadsheet with data purporting
to include information about this plaintiff.‖ Id. ¶ 12.
Plaintiff further complains that in the small claims court case defendants ―also appended
periodic statements‖ of some sort that had been sent to an address where plaintiff had never
lived. Id. ¶ 13. She says that defendants claimed that plaintiff‘s Chase account was opened in
2006, a date she deems suspiciously inconsistent with defendants‘ reference at other points in the
litigation to ―generic Chase agreements‖ from 2007 and 2008 (the significance of which she does
not otherwise describe). Id. ¶¶ 16–17. Plaintiff contends that ―[d]efendants did not and could not
show that either generic agreement was the one governing the account in question‖ and, in any
event, that ―[n]either generic agreement allowed for an assignee to seek attorney‘s fees.‖ Id. ¶¶
18–19.
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By divination one might suppose that ―the affiant‖ designated in Paragraph 11 of the complaint is
defendant Moises (whose job responsibilities are described in Paragraph 5 to include ―regularly‖ submitting
affidavits for defendant Equities), but the complaint does not say so.

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On the basis of all this, the complaint concludes that ―[d]espite knowledge that their
documentation of accounts purchased from Turtle Creek was insufficient to support judgment,
defendants intentionally continue to abuse an overburdened court system by seeking judgment in
the hopes that the utterly inadequate and inadmissible evidence would not be scrutinized.‖ Id. ¶
20. Plaintiff further protests that ―[d]espite knowledge that Equities was not allowed to seek
attorney‘s fees based on the assignment, in every case Ms. Strumpf applies for attorney‘s fees.‖
Id. ¶ 21.2
Paragraph 7 of the complaint is most baffling of all. It is situated immediately before the
allegations that I have described above about the small claims court filing in 2012 and
succeeding events. See id. ¶¶ 8–21. But rather than relating events leading up to the 2012 small
claims court case (as one might expect that a complaint should set forth facts in a chronologically
coherent manner), Paragraph 7 alleges that in May 2013—during the year after the events
described for the small claims court case—―defendants issued a small claims writ which
included the statement that Ms. Moises had mailed a letter to plaintiff at the address therein on
April 23, 2010.‖ The complaint does not volunteer anything about what this ―letter‖ said.
Nevertheless, plaintiff deems the very timing of this undescribed ―letter‖ to be at odds with the
fact that the ―[t]he small claims form required communication within six months before suit.‖ Id.
¶ 7. More generally, Paragraph 7 fails to specify even what the ―small claims writ‖ is and what
relation—if any—it has to the 2012 small claims action that consumes the rest of the complaint.
In the concluding paragraph of the complaint, plaintiff claims that ―[i]n the collection
efforts, defendants violated the FDCPA, § 1692d, -e, -f(1), or –g.‖ Id. ¶ 22. She has no more to

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It is yet another of the complaint‘s locutional curiosities that instead of simply alleging that defendant
Strumpf actually and wrongfully applied for attorney‘s fees in plaintiff‘s case in 2012, plaintiff leaves the Court to
guess about any inference to be drawn by describing only what defendant Strumpf‘s present day practice is: that ―in
every case Ms. Strumpf applies for attorney‘s fees.‖ Id. ¶ 21.

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say about the basis for any federal law violations. Next, she claims with no specification of
statutory citations that defendants ―violated the parallel provisions of the CCPA.‖ Id. And she
makes no claim at all that defendants‘ conduct violated CUTPA, except in passing by requesting
as a form of relief that the Court award ―actual and punitive damages under CUTPA.‖ Id. at 3.
Discussion
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain ―a short
and plain statement of the claim showing that the pleader is entitled to relief,‖ Fed. R. Civ. P.
8(a)(2), and that ―[e]ach allegation must be simple, concise, and direct.‖ Id. at 8(d)(1). As the
Second Circuit has explained, ―a complaint does not need to contain detailed or elaborate factual
allegations, but only allegations sufficient to raise an entitlement to relief above the speculative
level.‖ Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 70 (2d Cir. 2014). Still, Rule 8 ―does not
countenance pleadings that are conclusory; it requires factual allegations that are sufficient to
‗give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.‘‖ Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
I cannot say that the convoluted complaint here meets a fair notice standard. Although at
just two-and-a-half pages it certainly satisfies Rule 8‘s requirement that it be ―short,‖ it comes
nowhere near the requirements for allegations that are ―simple‖ and ―direct‖ and that contain a
―plain statement of the claim showing that [plaintiff] is entitled to relief.‖ To the contrary, the
complaint is a jumble of factual allegations that are far from clear how they relate—if at all—to
one another. Nor does the complaint describe in any reasonable detail the individual conduct and
responsibility of defendants Strumpf and Moises, or make clear why each of them could
plausibly be subject to liability for each and every one of the seriatim violations listed at the end

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of the complaint.
The complaint‘s lack of clarity makes it impossible for me at this time to resolve
defendants‘ major contention for judgment on the pleadings: that all or some of the conduct
about which she complains could and should have been raised during the state court claims
process. Indeed, it appears from Paragraph 20 of the complaint that plaintiff chiefly seeks relitigation of the small claims court judgment, because she assails defendants‘ submission of
evidence that was allegedly ―insufficient to support judgment‖ and that was otherwise allegedly
―inadequate and inadmissible.‖ Congress has yet to vest the federal courts with roving appellate
authority over the actions of state small claims courts. I cannot imagine that my proper role is to
decide—as plaintiff seems to invite me to do—if the evidence before a small claims court was
sufficient, adequate, or admissible.
Plaintiff seeks recovery under multiple, complex statutory provisions under the FDCPA.
Because plaintiff has done no more than lump all these provisions in a running list at the end of
the complaint, I cannot ascertain if plaintiff‘s allegations plausibly meet the requirements for
relief under any or all of them. And all this is to say nothing of plaintiff‘s failure even to cite or
identify the ―parallel provisions‖ of state law for which she seeks recovery, as well as to specify
the conduct of each of the defendants that plausibly rises to the level of a CUTPA violation. See,
e.g., Sorisio v. Lenox, Inc., 701 F. Supp. 950, 962 (D. Conn. 1988) (―A CUTPA claim must be
pleaded with particularity to allow evaluation of the legal theory upon which the claim lies.‖),
aff’d, 863 F.2d 195 (2d Cir. 1988).
With good reason, defendants have complained that the complaint leaves them guessing
as to the basis for plaintiff‘s claims. It is no answer to say that the context for and allegations of
the complaint might be clarified by extrinsic records that have not been referred to in the

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complaint (and as to which plaintiff herself has opposed taking judicial notice, see Doc. #22), or
that plaintiff has recently filed a motion for summary judgment (Doc. #53) in which she
elaborates upon one aspect of her apparent claim and as to just one of the defendants. All of the
defendants are entitled from the start to a plain statement of facts in a complaint that
appropriately frames and bounds the legal claims against them.
As the Second Circuit has noted, the remedy of dismissal for a complaint that is
inadequate under Rule 8 ―is usually reserved for those cases in which the complaint is so
confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well
disguised.‖ Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The complaint here easily
meets this standard. It will therefore be dismissed without prejudice to re-filing. The Court
expects that an amended complaint would coherently set forth facts that would plausibly support
each and every one of the claimed violations as to every named defendant.
Conclusion
Defendant‘s motion for judgment on the pleadings (Doc. #18) is GRANTED in part,
without prejudice to plaintiff re-filing an amended complaint. If plaintiff wishes to file an
amended complaint, plaintiff should do so within 30 days, on or before November 14, 2014. In
the event that plaintiff files an amended complaint, the parties should promptly contact chambers
for a telephonic conference to set an expeditious schedule for further pleadings and motions.
In light of my ruling dismissing the complaint, defendants‘ motion for judicial notice
(Doc. #20) and plaintiff‘s motion for summary judgment (Doc. #53) are DENIED as moot at this
time.
It is so ordered.
Dated at Bridgeport this 14th day of October 2014.

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/s/
Jeffrey Alker Meyer
United States District Judge

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