Devine v. Terry et al

Filing 64

ORDER granting 36 , 42 , and 49 , defendants' motions to dismiss, and denying 46 and 56 , plaintiffs' motions to amend. See attached memorandum of decision. For the claims that the court has granted leave to replead, plaintiff' s motion to amend must be filed on or before October 14, 2014. Failure to file a motion to amend on or before October 14, 2014, or to otherwise comply with the court's instructions regarding repleading of those claims, will likely result in final dismissal of those claims and this action. Signed by Judge Vanessa L. Bryant on 09/30/14. (Rock, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
B. DEVINE,

:
Plaintiff,
:
:
v.
:
:
RICHARD TERRY; NATHANSON,
:
CIPRIANO & GAMBARDELLA, P.C.;
:
MIDDLESEX HEALTH SYSTEMS, INC.
:
d/b/a MIDDLESEX HOSPITAL; MIDDLESEX :
HOSPITAL SERVICES, INC. d/b/a
:
MIDDLESEX SURGICAL CENTER;
:
MEDCONN COLLECTION AGENCY, LLC;
:
DANIEL J. CASS; MARK E.
:
LAUDENBERGER; LINDA JO SPENCER;
:
JOANNE BROWN,
:
Defendants.
:

CIVIL ACTION NO.

3:13-CV-01023-VLB

SEPTEMBER 30, 2014

MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTIONS TO DISMISS
AND DENYING PLAINTIFF’S MOTION TO AMEND
Plaintiff B. Devine (“Devine”) brings this action against defendants Richard
Terry (“Terry”), Nathanson, Cipriano & Gambardella, P.C. (“NCG,” and collectively
with Terry, the “NCG defendants”), Middlesex Health Systems, Inc., d/b/a/
Middlesex Hospital (“MSH”), Middlesex Hospital Services, Inc., d/b/a Middlesex
Surgical Center (“MSHI”), Medconn Collection Agency, LLC (“Medconn”), Daniel
J. Cass (“Cass,” together with Medconn, the “Medconn defendants”), Mark E.
Laudenberger (“Laudenberger”), Linda Jo Spencer (“Spencer”), and Joanne
Brown (“Brown,” and collectively with MSH, MSHI, Cass, Laudenberger, and
Spencer, the “MSH defendants”). Plaintiff alleges claims under the Fair Debt
Collections Practices Act (“FDCPA”), the Health Insurance Portability and
Accountability Act (“HIPAA”), and various state law causes of action. For the

1

reasons described below, the motions to dismiss are granted as to all
defendants, and plaintiff’s motion to amend is denied.
I. FACTS
Plaintiff initiated this matter by filing his first complaint in this court on July
17, 2013. Plaintiff then filed his first amended complaint as a matter of course on
August 5, 2013. After motions to dismiss were filed on October 4, 2013 by the
NCG defendants and October 18, 2013 by Medconn, plaintiff filed a motion on
October 24, 2013 seeking leave to amend his complaint a second time, along with
a proposed second amended complaint. The MSH defendants then filed a motion
to dismiss on November 4, 2013. The court will first discuss the facts and claims
presented in the first amended complaint, and then present the additional facts
and claims asserted in the second amended complaint.
A. Amended Complaint
The following facts come from plaintiff’s first amended complaint, unless
otherwise noted. NCG is a Connecticut law firm, of which defendant Terry is a
member. MSH is a medical service provider located in Middletown, Connecticut.
MSHI is a wholly-owned subsidiary of MSH. Medconn is a collection agency
retained by MSH and MSHI. Spencer and Laudenberger are both MSH employees
responsible for the implementation and execution of privacy rules and
regulations. Brown is the financial administration officer for MSH, and is
responsible for generating invoices for procedures “goods and/or services
rendered” at MSH and MSHI.

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MSH uses the Healthcare Common Procedure Coding System (“HCPCS”),1
which is a coding system that assigns alpha-numeric codes to medical
procedures, treatments, drugs, goods, services, and diagnoses. MSH is the
billing agent for both MSH and MSHI. The HCPCS codes are readily available on
the internet, at public and private libraries, and in the libraries of medical
providers, including MSH’s library.
Defendant Brown generated five invoices containing the following
information about plaintiff: his date of birth; visit number; age; date of visit and/or
admission date; time of admission; time and date of discharge; telephone
number; item number; medical record number; the HCPCS code(s), together with
a written summary of the goods and/or services performed. Plaintiff alleges that
in doing so, Brown failed to follow the established policy guidelines of MSH and
MSHI, which are mandated by HIPAA and a Connecticut privacy statute, and
which require that the above-listed personal data not be disclosed to
unauthorized third parties.
MSH and MSHI then sent unredacted copies of those five invoices to
Medconn. Medconn then sent unredacted copies of those five invoices to the
NCG defendants, and the NCG defendants then filed suit against plaintiff in
Connecticut Superior Court, Middlesex County. Plaintiff asserts that his personal
identifiable information was not necessary for MSH and MSHI to carry out their
health care operations, nor was it necessary for such information to be provided
to the Medconn defendants or the NCG defendants.

1

These codes are sometimes referred to as “CPT” codes.
3

Plaintiff asserts that MSH is a “non-legal entity” with no standing to file
suit. Am. Compl. ¶ 35. Plaintiff alleges that MSH gives its patients a permission
form that is “predatory in nature,” does not disclose the terms and conditions of
treatment, and does not state the fees for the services to be provided or the costs
of any goods to be provided to the patient. Plaintiff also alleges that neither MSH
nor MSHI has a valid contract or agreement with the plaintiff for payment of
goods and/or services, and that the NCG defendants do not have a valid contract
with MSH authorizing the NCG defendants to institute a collection action on
behalf of MSH.
Plaintiff seeks the following relief in this action: (1) money damages of
$100,000.00 jointly and severally recoverable from the MSH defendants for
“breach of fiduciary duty of medical confidentiality”; (2) money damages of
$100,000.00 jointly and severally recoverable from the MSH defendants for breach
of “contractual agreement of medical confidentiality”; (3) money damages of
$100,000.00 jointly and severally recoverable from the MSH defendants for
invasion of privacy and breach of medical confidentiality; (4) money damages of
$100,000.00 jointly and severally recoverable from the Medconn defendants and
the NCG defendants for breach of the FDCPA; (5) ) money damages of
$100,000.00 jointly and severally recoverable from the Medconn defendants for
breach of the “fiduciary duty of medical confidentiality”; (6) money damages of
$100,000.00 jointly and severally recoverable from the Medconn defendants for
breach of a “contractual agreement of medical confidentiality”; (7) money
damages of $100,000.00 jointly and severally recoverable from the Medconn

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defendants for invasion of privacy and breach of medical confidentiality; (8) a
permanent injunction prohibiting the MSH defendants from disclosing nonessential personal identifiable information to any third party without written
consent of the patient; and (9) punitive damages.
MSH brought a suit in Connecticut Superior Court to recover the cost of
medical services provided to the plaintiff. On November 1, 2013, the state court
issued an order titled “Memorandum of Decision After Trial,” in which the court
found that MSH had sustained its burden of proof regarding the allegations in its
complaint, and that defendant had not sustained his burden of proof as to any
special defense, and entered judgment against plaintiff in the amount of
$52,355.00. Order, Middlesex Hospital v. Devine, No. MMXCV126008217S (Nov. 1,
2013), Dkt. No. 125.00.2 Plaintiff took an appeal of that decision to the
Connecticut Court of Appeals, which is still pending as of the time of this opinion.
B. Proposed Second Amended Complaint
In his proposed second amended complaint, plaintiff proposes to add a
number of allegations to support his FDCPA claim, including allegations
establishing that certain defendants are debt collectors as that term is defined in
the FDCPA, allegations challenging the validity of the debt at issue, and
allegations regarding the defendants’ conduct in collecting that debt. Plaintiff

2

The court may take notice of this Order, as the parties are clearly on notice of
the existence of this litigation and the filings and rulings therein. Cf. Gertskis v.
United States EEOC, No. 11 Civ. 5830, 2013 U.S. Dist. LEXIS 39110, at *5-6
(S.D.N.Y. Mar. 20, 2013) (“A district court reviewing a motion to dismiss may also
consider documents of which it may take judicial notice, including pleadings and
prior decisions in related lawsuits.”).

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also adds further allegations in support of his claim for violation of HIPAA and
Connecticut state privacy laws.
1. Amended FDCPA Allegations
Plaintiff alleges that defendant Terry is a debt collector as defined in 15
U.S.C. § 1962a(6), and that Terry regularly appears in court for the sole purpose of
collecting debts on behalf of MSH and other financial institutions. 2nd Am.
Compl. at p. 2. Plaintiff also alleges that NCG is a debt collector as defined in
section 1962a(6) because its employees, including Terry, regularly appear as
attorney of record for institutions in collections actions, and that the bulk of the
income of the NCG defendants is derived from the practice of collecting debts.
2nd Am. Compl. at p. 2. Plaintiff further alleges that at least one employee of NCG
contacted plaintiff directly via written correspondence on multiple occasions, in
an attempt to collect debts. Plaintiff alleges that Medconn is a debt collector as
defined in section 1962a(6), and that one or more employee of Medconn
contacted plaintiff directly via written correspondence on multiple occasions, in
an attempt to collect debts.
Plaintiff raises a number of challenges to the legitimacy of the debts at
issue: (1) that MSH and MSH do not have a valid contract or agreement with
plaintiff for payment of goods and/or services rendered by MSH and/or MSHI; (2)
that the invoices failed to establish that the goods and services for which plaintiff
was billed were actually provided to plaintiff; (3) that he did not give permission
to receive the goods and services for which he was billed; (4) that one of the
invoices was an incorrect double-billing; (5) that two of the invoices are invalid

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because the services were rendered by MSHI, but the bills were generated by
MSH rather than MSHI. 2nd Am. Compl. ¶¶ 13-14, 16-17, 32-33.
Plaintiff alleges that both the Medconn defendants and the NCG defendants
would have discovered that the debts they attempted to collect were “a total
fabrication” if they had attempted to verify those debts, and that by failing to
verify the debts the Medconn defendants and NCG defendants violated section
1692g(a).
Plaintiff argues that Brown committed perjury in the state court collection
action by testifying on August 1, 2013 that the physician who rendered the
services to plaintiff was an employee of MSH, when in fact that physician was
employed by an independent medical corporation. 2nd Am. Compl. ¶ 15.
For two of the debts, plaintiff argues that the “proper party in interest” was
MSHI, and that because the Medconn defendants and NCG defendants did not
execute retainer agreements with MSHI, those defendants violated the FDCPA by
attempting to collect on debts for which they had no retainer agreement. 2nd Am.
Compl. ¶¶ 18-20. Plaintiff alleges that the Medconn defendants and NCG
defendants falsely represented to plaintiff and to the state court that they in fact
had a retainer agreement with MSHI. Plaintiff later asserts more generally that
both the Medconn defendants and the NCG defendants violate the FDCPA
because neither defendant has a valid contract to collect debts on behalf of either
MSH or MSHI. 2nd Am. Compl. ¶ 34.
The Medconn defendants sent plaintiff a letter dated April 29, 2011 in which
they set his outstanding debt at $53,066.00. The NCG defendants sent plaintiff a

7

second letter on May 16, 2012, in which he set the outstanding debt at only
$52,081.00. Later on August 1, 2013, Defendant Brown testified in the state court
action that the debt owed was $52,355.00. Plaintiff alleges that all of these
communications were “false” and “misleading.” 2nd Am. Compl. ¶¶ 29-30.
Plaintiff also alleges that defendants entered into a conspiracy to violate
the FDCPA. Plaintiff asserts that the acts of MSH in retaining the NCG defendants
and the Medconn defendants to collect outstanding debts constituted a
conspiracy that resulted in numerous violations of the FDCPA. Plaintiff alleges
that MSH knew or should have known that the NCG defendants and Medconn
defendants were engaging in unlawful debt collection practices, and that MSH
was negligent in failing to make a reasonable inquiry into the nature of NCG’s and
Medconn’s debt collection policies and practices. 2nd Am. Compl. ¶ 11.
2. Amended HIPAA and Connecticut Privacy Law Allegations
Plaintiff also bolsters his HIPAA and state law privacy claim in the
proposed second amended complaint, arguing that the NCG defendants violated
HIPAA by providing unredacted copies of his medical invoices to the law firm of
Fontaine Alissi, P.C. (“Fontaine Alissi”) and allowing Fontaine Alissi to attach
those documents as exhibits to the NCG defendants’ motion to dismiss filed in
this action on October 4, 2013. Plaintiff asserts that the MSH defendants failed to
make the reasonable efforts to avoid releasing his confidential data as required
by 45 CFR 164.502.
II. STANDARD OF REVIEW

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“‘To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Sarmiento v. U.S., 678 F.3d 147, 152 (2d Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual
allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer

9

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotations omitted).
“[A] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and quotation omitted).
During a motion to dismiss, the court is still “obligated to construe a pro se
complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, the
complaint must still contain sufficient factual allegations to meet facial
plausibility. See Bilodeau v. Pillai, No. 3:10-cv-1910, 2011 U.S. Dist. LEXIS 93346,
at *2 (D. Conn. Aug. 22, 2011).
In regards to plaintiff’s motion to amend, Federal Rule of Civil Procedure
15(a)(2) instructs that courts “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Yet, this broad standard to freely give leave to
amend does not mean courts must heedlessly grant every request to amend.
“[L]eave to amend will be denied as futile only if the proposed new claim cannot
withstand a 12(b)(6) motion to dismiss for failure to state a claim, i.e., if it appears
beyond doubt that the plaintiff can plead no set of facts that would entitle him to
relief.” Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citation
omitted).
IV. ANALYSIS
The MSH defendants make the following arguments in support of their
motion to dismiss: (1) HIPAA provides no private right of action; (2) the court
should refrain from ruling on plaintiff’s claim of breach of contract pursuant to

10

the Colorado River abstention doctrine; (3) plaintiff has failed to adequately plead
a claim for breach of fiduciary.
The Medconn defendants make the following arguments in support of their
motion to dismiss: (1) HIPAA does not provide a private right of action; (2)
plaintiff fails to adequately allege a claim under the FDCPA; (3) Medconn was not
a fiduciary of plaintiff, and as such cannot be liable for breach of fiduciary duty of
medical confidentiality; (4) plaintiff does not adequately allege a claim for breach
of contractual agreement of medical confidentiality; (5) plaintiff does not
adequately allege a state law claim for invasion of privacy; (6) the case should be
dismissed or stayed pending resolution of the Connecticut state court collections
action pursuant to the Colorado River abstention doctrine.
The NCG defendants raise the following arguments in support of their
motion to dismiss: (1) MSH has standing to bring a state court collections action
in Connecticut; (2) the FDCPA does not require NCG to have a written agreement
to act on the collection of a debt; and (3) defendant Terry is not a debt collector
as defined by the FDCPA and therefore cannot be individually under the FDCPA.
Because plaintiff has failed to adequately allege a claim under the FDCPA,
and HIPAA provides no private right of action, the court declines to exercise
supplemental jurisdiction over plaintiff’s state claims, and therefore does not
consider defendants’ arguments with respect to those claims.
A. FDCPA Claims
Construing plaintiff’s complaint in his favor, the court can discern the
following claims in plaintiff’s first amended complaint alleged under the FDCPA:

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(1) that MSH lacks standing to bring a state court collection action; (2) the
Medconn defendants and the NCG defendants do not have a written agreement to
collect debts owed by plaintiff on behalf of MSH; and (3) that defendants violated
the FDCPA by attempting to collect upon illegitimate debts.
In his proposed second amended complaint, the court can discern the
following additional claims asserted in addition to the claims raised in the first
amended complaint: (1) that the Medconn defendants and the NCG defendants
failed to verify the legitimacy of the underlying debts; (2) defendants made
misrepresentations as to the amount owed; (3) MSH lacks standing to sue for
debts incurred for procedures performed at MSHI; (4) perjury by defendant Brown
in the state court collections action; (5) a claim for conspiracy to violate the
FDCPA; and (6) that the NGC defendants violated section 1692g(a) by attempting
to collect on a duplicative bill.
The express “purpose of [the FDCPA] is to eliminate abusive debt
collection practices by debt collectors, to insure that those debt collectors who
refrain from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C. § 1692(e). In order to sufficiently plead
a violation of the FDCPA the complaint must allege the following three elements:
(1) that the plaintiff is a “consumer” who allegedly owes a debt or a person who
has been the object of efforts to collect a consumer debt; (2) the defendant
collecting the debt is a “debt collector” as that term is defined by the FDCPA; and
(3) that the defendant has engaged in any act or omission in violation of the

12

FDCPA. See Pape v. Amos Fin., LLC, No. 13cv63, 2014 U.S. Dist. LEXIS 27047, at
*7 (D. Conn. Mar. 4, 2014).
It is undisputed that plaintiff has adequately plead the first element, that he
is a consumer who allegedly owes a debt. In regards to the second element, the
NCG defendants argue that plaintiff’s amended complaint fails to allege that
defendant Terry is a debt collector. Although plaintiff added allegations to his
proposed second amended complaint that appear aimed at establishing that
defendant Terry is a debt collector, the court need not consider whether the
plaintiff has adequately alleged that Terry is a debt collector at this time, as the
court finds that plaintiff has not adequately plead the third element, that
defendant engaged in any act or omission in violation of the FDCPA.
In his amended complaint, plaintiff does not explicitly invoke any particular
section of the FDCPA, referring generally to the FDCPA. In his proposed second
amended complaint, plaintiff explicitly alleges violations of sections 1692g and
1692e. Because plaintiff is pro se, the court has looked broadly at the FDCPA, to
determine if plaintiff has plead allegations sufficient to raise a claim under any of
the sections he has not explicitly invoked. Of these sections, section 1692f,
which prohibits the use of unfair or unconscionable means to collect a debt,
including among other things, the collection of any amount that is not expressly
authorized by the agreement creating the debt or permitted by law, is the only
section of the FDCPA not explicitly named by the plaintiff that the court can
discern as potentially invoked by the allegations in plaintiffs’ amended complaint
or his proposed second amended complaint.

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1. MSH Has No Standing to Bring a State Court Collection Action
In his amended complaint, and again in his proposed second amended
complaint, plaintiff alleges that the NCG defendants violated the FDCPA by
bringing suit on behalf of MSH because MSH is a “non-legal entity . . . with no
legal standing to sue . . .” Am. Compl. ¶ 35; 2nd Am. Compl. ¶ 63. Plaintiff
provides no factual support for this assertion, and cites to no specific section of
the FDCPA, nor can the court cannot discern what section of the FDCPA is
invoked by this allegation. It is a basic tenet of our legal system that
corporations and similar entities have standing to sue and be sued. Indeed,
plaintiff himself invoked that principle when he named MSH and MSHI as
defendants in this action and served them with summons, causing them to
appear in this action. This argument is not actionable and it must be dismissed
without leave to replead.
2. Failure to Have a Written Agreement to Collect the Debt
Plaintiff alleges in his amended complaint that the NCG defendants violated
the FDCPA by failing to have a valid agreement to collect debts on behalf of MSH.
Am. Compl. ¶ 8. Plaintiff repeats this claim in his proposed second amended
complaint, and also alleges the same violation against the Medconn defendants.
2nd Am. Compl. ¶¶ 34-35. Plaintiff does not allege how he knows that there is no
contract or agreement between MSH or MSHI and the NCG defendants and/or the
Medconn defendants. Further, plaintiff’s amended complaint contains
contradictory allegations on this point; plaintiff also alleges that Medconn “is a
collection agency retained by [MSH and MSHI].” Am. Compl. p. 2. In his

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proposed second amended complaint plaintiff alleges that both Medconn and
NCG were retained by MSH and MSHI to collect outstanding debts. 2nd Am.
Compl. pp. 7, 10. In his amended complaint, plaintiff does not cite to a specific
section of the FDCPA in support of his claim, though he does cite to section
1692e in his proposed second amended complaint.
Section 1692e forbids a debt collector from making any “false, deceptive,
or misleading representation,” and provides a non-exhaustive list of conduct that
is prohibited. Plaintiff’s allegation regarding the lack of retainer agreements does
not fall within any of the specifically enumerated prohibitions of section 1962e.
Although the statute appears to allow for a plaintiff to make a claim that a debt
collector has generally made a “false, deceptive, or misleading representation,”
because of the contradictory allegations in plaintiff’s complaint, and because his
allegations in support of this claim are naked assertions devoid of further factual
enhancement, plaintiff has failed to adequately allege a claim for violation of
section 1692e. For the above reasons, this claim is dismissed and the motion to
amend is denied as futile insofar as it seeks to add this claim. If plaintiff wishes
to reassert this claim, he must file a motion to amend, accompanied by an
amended complaint that adequately alleges a violation of section 1692f, which
allegations must be more than naked assertions unsupported by factual
enhancement, on or before October 14, 2014. Failure to file a motion to amend on
or before October 14, 2014, pleading inconsistent facts as to the existence of an
agreement, or failure to include sufficient factual allegations in support of the

15

claims made in the proposed third amended complaint will result in final
dismissal of this action.
3. Attempts to Collect Illegitimate Debts in Violation of the FDCPA
Plaintiff’s amended complaint contains challenges to the underlying debt
and assertions that the agreement used by the MSH defendants is “predatory in
nature” and that “MSH and MSHI do not have a valid contract and/or agreement
with the plaintiff for payment of goods and/or services . . . .” Am. Compl. ¶¶ 4, 7.
Plaintiff raises this argument again in his proposed second amended complaint.
2nd Am. Compl. ¶¶ 6, 33. Indeed, one of the major themes of both the amended
complaint and the proposed second amended complaint is a challenge to the
legitimacy of the underlying debt. Although he does not invoke it explicitly, these
allegations could be construed as a putative section 1692f(1) claim if the court
reads the complaint generously.
Section 1692f prohibits a debt collector from using “unfair or
unconscionable means to collect or attempt to collect any debt” and explicitly
forbids “[t]he collection of any amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. §
1692f(1); see also Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 308 (2d Cir.
2003) (a “cause of action under § 1692f(1) requires a showing that defendants
attempted to collect an amount not expressly permitted either by the agreement
creating the debt or by law.”).

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Even construing plaintiff’s complaint generously, he has failed to state a
claim for a violation of section 1692f, as plaintiff’s complaint does not specify
which amounts, if any, are not expressly authorized by the service agreements
signed by plaintiff. Plaintiff’s naked assertions that MSH and MSHI did not have
valid contracts with plaintiff are unaccompanied by any factual enhancement
whatsoever, and thus plaintiff has failed to adequately allege that those
agreements are invalid. Further, from a review of the agreements attached to the
NCG defendants’ motions to dismiss, although it appears that portions of the
agreements have been crossed out or otherwise marked up, the court notes that
the portion of the agreement in which plaintiff agrees to pay all of the costs of
service, as well as any collection costs incurred, is unaltered. Dkt. 36, Ex. B at 1,
3, 4, 7. The agreements creating the debt state:
I understand that I am obligated to pay the account of
Middlesex Hospital in accordance with the regular rates
and terms of the hospital. I owe and agree to pay
Middlesex Hospital for any and all charges not actually
paid by insurance benefits. If my account is not paid, I
will pay all court costs, attorney's fees and other costs
incurred by Middlesex Hospital to collect the balance
owed
Id.3 Although the court makes no finding here regarding the validity of these
contracts, they demonstrate how the plaintiff’s complaint is lacking in adequate

3

 On a motion to dismiss, the court may consider "’matters of which judicial
notice may be taken’ and ‘documents either in plaintiffs' possession or of which
plaintiffs had knowledge and relied on in bringing suit.’” Datto, Inc. v. Braband,
856 F. Supp. 2d 354, 363 (D. Conn. 2012) (quoting Brass v. Am. Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)). In his amended complaint
plaintiff challenges the validity of the contract for services he signed with the
MSH defendants and alleges that the MSH defendants breached the “contractual
agreement of medical confidentiality.” Am. Compl. Prayer for Relief ¶ 2. The

17

allegations. Additionally, neither the amended complaint nor the proposed
second amended complaint contains any factual allegations that even come close
to suggesting that either the NCG defendants or the Medconn defendants used
“unfair or unconscionable” means in an attempt to collect the debts. Finally,
while the plaintiff alleges that the defendants stated that he owed varying
amounts of debt on three separate occasions, he does not allege that these
amounts were not in fact the amount he owed at the time the statement was made
or that the variations were not due to private insurance, Medicare, Medicaid or
other payments or credits, write-offs, interest, court costs, attorney’s fees,
collection fees or other charges. As plaintiff has failed to adequately allege this
claim, it is dismissed. If plaintiff wishes to reassert this claim, he must file a
motion to amend, accompanied by an amended complaint that adequately alleges
a violation of section 1692f, which allegations must be more than naked
assertions unsupported by factual enhancement, on or before October 14, 2014.
Failure to file a motion to amend on or before October 14, 2014, or failure to
include sufficient allegations in the proposed amended complaint will result in
final dismissal of this action.
4. Failure to Verify the Legitimacy of the Debt in Violation of 1692g
Plaintiff alleges in his proposed second amended complaint that the
Medconn defendants and the NCG defendants violated section 1692g(a) because
they “failed to verify, neglected to establish, the facts and circumstances that

court finds that it may consider these documents on this motion to dismiss as the
plaintiff clearly had knowledge of these agreements and relied on them in
bringing suit. 

18

gave rise to the alleged debt, . . . and the legitimacy there of, when in fact, said
debt is a total fabrication, and an inquiry would have revealed same as such, . . .”
2nd Am. Compl. ¶¶ 13-17, 22-25. The heart of plaintiff’s 1692g claim is his
assertion that the underlying debts are illegitimate. The facts alleged do not
assert a claim cognizable under section 1692g(a).
Section 1692g(a) requires a debt collector to send the consumer, within five
days of the initial communication, a written notice containing the amount of the
debt, the name of the creditor to whom the debt is owed, statements regarding
the consumer’s right to dispute the debt within thirty days of receipt of the notice,
and a statement about the consumer’s right to request the name and address of
the original creditor.
Only if a consumer disputes a debt within thirty days of receipt of notice,
section 1692g(b) requires the debt collector to “cease collection of the debt, or
any disputed portion thereof, until the debt collector obtains verification of the
debt or a copy of a judgment, or the name and address of the original creditor,
and a copy of such verification or judgment, or name and address of the original
creditor, is mailed to the consumer by the debt collector.” 15 U.S.C. § 1692g(b).
Although the FDCPA does not define what it means to obtain “verification” of the
debt, many courts have found, and this court agrees, that it does not require the
debt collector to do anything more than confirm the amount of the debt and the
identity of the creditor, and relay that information to the consumer. See, e.g.,
Poulin v. Thomas Agency, 760 F. Supp. 2d 151, 159 (D. Me. 2011) (collecting
cases). This provision of the FDCPA “is not intended to give a debtor a detailed

19

accounting of the debt to be collected.” Poulin, 760 F. Supp. 2d at 160. Rather,
“verification is only intended to eliminate the problem of debt collectors dunning
the wrong person or attempting to collect debts which the consumer has already
paid.” Poulin, 760 F. Supp. 2d at 160 (quoting Chaudhry v. Gallerizzo, 174 F.3d
394, 406 (4th Cir. 1999)). “Verification of a debt requires only that the debt
collector obtain a written statement that 'the amount being demanded is what the
creditor is claiming is owed; the debt collector is not required to keep detailed
files of the alleged debt.” Derisme v. Hunt Leibert Jackson P.C., 880 F. Supp. 2d
339, 370 (D. Conn. 2012) (quoting Bascom v. Dubin, No. 03-cv-6160T, 2007 U.S.
Dist. LEXIS 5349, at *7 (W.D.N.Y. Jan. 25, 2007)); see also Webster v. ACB
Receivables Mgmt., No. SKG-12-3620, 2014 U.S. Dist. LEXIS 55575, at *39 (D. Md.
Apr. 22, 2014) (“verification of a debt involves nothing more than the debt
collector confirming in writing that the amount being demanded is what the
creditor is claiming is owed.”) (quoting Chaudhry, 174 F.3d at 406)).
Plaintiff does not allege in his complaint that defendants failed to provide
the notice required by 1692g(a), nor does he allege that he disputed the debt
within the thirty-day period described in 1692g(a), which would have triggered the
requirements of 1692g(b). Even if the court were to assume for the purpose of
deciding this motion to dismiss that plaintiff had in fact disputed the debt,
plaintiff has not adequately alleged a violation of section 1692g, as the NCG
defendants and Medconn defendants were not required to determine the
legitimacy of the underlying debts, and there is no allegation that they failed to
verify the amount of the debt and the identity of the creditor. As a result,

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plaintiff’s proposed 1692g claim is not actionable, and thus his motion to amend
is denied as futile insofar as it seeks to add this claim.
5. Misrepresentations of Amount Owed in Violation of Section 1692e
In his proposed second amended complaint, plaintiff alleges that
defendants violated section 1692e by making three separate communications that
were false and misleading with respect to the amount of debt owed: (1) a letter
sent by the Medconn defendants dated April 9, 2011, in which they communicated
that he owed $53,066.00; (2) a letter sent by the NCG defendants dated May 16,
2012, in which they set the amount of his debt at $52,081.00; and (3) testimony
from a witness elicited by the NCG defendants in state court during the
collections action that his amount owed was $52,355.00. 2nd Am. Compl. ¶¶ 2930. As previously noted, section 1692e forbids a debt collector from making any
“false, deceptive, or misleading representation,” and specifically prohibits “[t]he
false representation of . . . the character, amount, or legal status of any debt; . . .”
15 U.S.C. § 1692e(2)(A).
Plaintiff’s assertions that these amounts were false and misleading are
conclusory allegations completely devoid of any factual enhancement. Plaintiff
does not allege how the amounts named by the defendants were false and
misleading. Although defendants named three different amounts at three
different times, nothing in the complaint suggests that these were false and
misleading. Differences in the representations of the amounts owed could be
caused by any number of reasons, including but not limited to (1) interest
accumulating on the debt and/or the inclusion of the fees and costs associated

21

with collecting the debt;4 (2) payments on the debt made by plaintiff or on his
behalf; (3) a decision by the defendants to make an offer to settle for less than
was owed. A bald assertion that the amounts were false and misleading is
insufficient to state a claim for violation of section 1692e.
Additionally, the court notes that the statute of limitations for FDCPA
claims requires that they be brought “within one year from the date on which the
violation occurs.” 15 U.S.C. § 1692k. “Where a plaintiff alleges multiple debt
collection communications violating the FDCPA, each communication is treated
as a distinct claim whose timeliness is analyzed separately.” LaCourte v. JP
Morgan Chase & Co., No. 12 Civ. 9453, 2013 U.S. Dist. LEXIS 129993, at *22
(S.D.N.Y. Sept. 4, 2013) (citation omitted). This action was filed on July 17, 2013.
Because the challenged letters were dated April 9, 2011 and May 16, 2012, it is
very likely that these claims are barred by the statute of limitations. Equitable
tolling may be applied to this statute of limitations if the following elements are
satisfied: “(1) the defendant concealed from him the existence of his cause of
action; (2) he remained in ignorance of that cause of action until some length of
time within the statutory period before commencement of his action; and (3) his
continuing ignorance was not attributable to lack of diligence on his part.” Sykes
v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413, 422 (S.D.N.Y. 2010) (citing New

4

The court notes that the agreements signed by plaintiff, which the court may
consider on this motion to dismiss, see supra footnote 3, copies of which are
attached as exhibits to the Medconn defendants’ motion to dismiss, include
language by which plaintiff agreed to pay the costs of collection, including “all
court costs, attorney’s fees and other costs incurred by [MSH] to collect the
balance owed.” Dkt. 36, Ex. B at 1; see also Dkt. 36, Ex. B at 3, 4, 7 (containing
the same or substantively identical language).

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York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988)); see also
Derisme v. Hunt Leibert Jackson P.C., 880 F. Supp. 2d 339, 354-55 (D. Conn.
2012). However, plaintiff’s complaint contains no allegations that would support
a claim for equitable tolling.
In regards to the third representation, plaintiff alleges that defendant
Brown, an employee of MSH made false and misleading representations
regarding the amount of the debt when she testified in the state court collection
action that the amount of debt was $52,355.00. However, plaintiff has not alleged
that Brown or any of the MSH defendants is a debt collector as defined by the
FDCPA, nor alleged any facts that could create an inference that any of MSH
defendants could be considered debt collectors under the FDCPA. The FDCPA
defines “debt collector” as “any person who uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which
is the collection of any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or due another.”
15 U.S.C. § 1692a(6).
Creditors attempting to collect their own debts, such as the MSH
defendants in this case, are generally excluded from the FDCPA’s definition of
“debt collector,” and are thus exempt from liability under the FDCPA. See, e.g.,
Carlson v. Long Island Jewish Med. Ctr., 378 F. Supp. 2d 128, 130-31 (E.D.N.Y.
2005) (discussing creditors’ exemption under FDCPA). The exception to that rule
is the instance where a creditor attempts to collect its debts “[using] any name
other than his own which would indicate that a third person is collecting or

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attempting to collect such debts.” 15 U.S.C. § 1962a(6). Stated more succinctly,
a creditor may be held liable “if, in the course of collecting its own debts, it
‘pretends to be someone else’ or ‘uses a pseudonym or alias.’” Carlson, 378 F.
Supp. 2d at 131 (quoting Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235
(2d Cir. 1998)). To determine whether a creditor should be considered a “debt
collector” under the FDCPA, the court does not consider “whether the entity
engaged in collection is, in fact, a separate corporate entity,” rather, “the issue is
whether, under the particular factual circumstances present, the ‘least
sophisticated consumer would have the false impression that a third party was
collecting the debt.’” Carlson, 378 F. Supp. 2d at 131 (quoting Maguire, 147 F.3d
at 235). Further, “[a] creditor's in-house collection agency is not a debt collector,
within the meaning of the FDCPA, so long as the agency . . . ‘collects its own
debts in the true name of the creditor or a name under which it has consistently
done business.’” Carlson, 378 F. Supp. 2d at 131 (quoting Maguire, 147 F.3d at
235). Plaintiff has plead no facts that indicate that the MSH defendants used a
pseudonym or an alias in attempting to collect debts from plaintiff, and thus he
has failed to adequately allege that any of the MSH defendants is a debt collector
as that term is defined in the FDCPA. Plaintiff attempts to attribute the trial
testimony to the NCG defendants by arguing that they elicited the testimony
during the state court collection action. 2nd Am. Compl. ¶ 30. However, plaintiff
has not plead sufficient allegations to attribute the testimony of the witness to the
attorney questioning that witness. The testimony belongs to the witness, not the
attorney.

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Because it would be futile to allow plaintiff to amend his complaint to
include this claim, the motion to amend is denied. If plaintiff wishes to replead
this allegation, he must file a motion for leave to amend, supported by a
memorandum of law explaining why his claim is not barred by the statute of
limitations or by his failure to adequately allege that the MSH defendants are debt
collectors, together with a proposed third amended complaint, on or before
October 14, 2014. Failure to file a motion to amend on or before October 14, 2014,
failure to adequately explain why his claims are not barred by the statute of
limitations, and/or failure to adequately allege that the MSH defendants are debt
collectors may result in the final dismissal of this claim.
6. MSH Lacks Standing to Collect Debts for Procedures Performed at MSHI
Plaintiff alleges in his proposed second amended complaint that the NCG
defendants violated section 1692g(a) by “[failing] to verify, and [neglecting] to
establish, the facts and circumstances that gave rise to the alleged debts in the
amount of $147.00, and $41,464.00, and the legitimacy there of, when in fact, the
proper party in interest was the defendant Middlesex Hospital Services, Inc., and
an inquiry would have revealed same as such, . . .” 2nd Am. Compl. ¶ 17.
If plaintiff is arguing that the NCG defendants violated section 1962g(a)
because they failed to verify the legitimacy of the debt, that argument is not
cognizable as described above in Part IV.A.4, and the motion to amend must be
denied as futile as to this claim.
Viewing plaintiff’s complaint in the light most favorable to plaintiff, it is
possible that plaintiff is in fact attempting to assert a section 1692e claim that the

25

NCG defendants misrepresented the identity of the creditor, by asserting that the
debt was owed to MSH, when in fact it was owed to MSHI. However, plaintiff has
failed to adequately allege such a claim. Although plaintiff alleges that MSHI and
MSH are separate entities, plaintiff’s own complaint also alleges that MSH is “the
billing agent for MHSI [sic] and MSH,” suggesting that there was no
misrepresentation as to the identity of the holder of the debt. Am. Compl. ¶ 3.
Further, plaintiff has not alleged when and where any alleged misrepresentation
was made to plaintiff. Because plaintiff has failed to adequately allege this claim
in his proposed second amended complaint, the motion to amend must be denied
as to this claim. If plaintiff wishes to reassert this claim, he must file a motion to
amend, accompanied by an amended complaint that adequately alleges these
claims on or before October 14, 2014. Failure to file an amended complaint
containing sufficient allegations on or before October 14, 2014 will result in final
dismissal of this action.
7. Perjury in State Court Collections Action in Violation of Section 1692g(a) and
Section 1692e
Plaintiff alleges that defendant Brown committed perjury in the state court
collection action when she identified a physician who treated plaintiff, and for
whose services plaintiff was apparently billed $6,991.00, as an employee of MSH,
when in fact that physician was “an employee of an independent professional
medical corporation.” 2nd Am. Compl. ¶ 15. Plaintiff alleges that this was a
violation of section 1692g(a) and section 1692e(2)(A) of the FDCPA.
The court cannot discern how this alleged perjury is a violation of section
1692g. Nor has the Plaintiff asserted the legal basis on which this court has

26

jurisdiction to redress this claim. See, e.g., Alberta Gas Chemicals, Ltd. v.
Celanese Corp., 650 F.2d 9 (2d Cir. 1981). If plaintiff is asserting that defendant
Brown failed to verify the legitimacy of the underlying debt, that argument is not
cognizable, as explained above in Part IV.A.4.
In regards to section 1692e(2)(A), which as noted above prohibits “any
false, deceptive, or misleading representation or means in connection with the
collection of any debt,” plaintiff has not adequately alleged facts to show that the
identity of the physician’s employer is a false representation regarding the
“character, amount, or legal status” of the alleged debt.
Finally, as noted above in Part IV.A.5, plaintiff has failed to allege that
defendant Brown or any of the MSH defendants are debt collectors, and thus
subject to liability under the FDCPA. As a result, the motion to amend must be
denied as futile as to this claim. If plaintiff wishes to reassert this claim, he must
file a motion to amend, accompanied by an amended complaint that adequately
alleges that Brown is a debt collector as that claim is defined in the FDCPA,
which allegations must be more than naked assertions unsupported by factual
enhancement, on or before October 14, 2014. Failure to file an amended
complaint containing sufficient allegations on or before October 14, 2014 will
result in final dismissal of this action.
8. Conspiracy to Violate the FDCPA
Plaintiff attempts to allege in his proposed second amended complaint that
all of the defendants are involved in a conspiracy to violate the FDCPA. Plaintiff
alleges that “[t]he act(s) of the defendant MSH, as a principal, in retaining [the

27

NCG defendants and the Medconn defendants], as debt collectors, . . . constituted
a conspiracy, that resulted in numerous violations of the provisions of 15 USC
1692, by the [NCG defendants and Medconn defendants], . . .” 2nd Am. Compl. ¶
10. Plaintiff cannot sustain a conspiracy claim, as he has failed to adequately
allege an underlying violation of the FDCPA. Cf. Master-Halco, Inc. v. Scillia,
Dowling & Natarelli, LLC, 739 F. Supp. 2d 109, 114 (D. Conn. 2010) (noting that in
Connecticut, “to state a cause of action, a claim of civil conspiracy must be
joined with an allegation of a substantive tort.") (quoting Macomber v. Travelers
Prop. And Casualty Corp., 894 A. 2d 240, 244 (Conn. 2006)). The motion to amend
is thus denied as futile with respect to this claim. If plaintiff wishes to reassert
this claim, he must file a motion to amend, accompanied by an amended
complaint that adequately alleges violations of the FDCPA, which allegations
must be more than naked assertions unsupported by factual enhancement, on or
before October 14, 2014. Failure to file a motion to amend on or before October
14, 2014, or failure to include sufficient allegations in the proposed amended
complaint will result in final dismissal of this action.
9. Duplicative Bill in Violation of Section 1692g(a)
Plaintiff alleges in his proposed second amended complaint that the NCG
defendants violated section 1692g(a) by “[failing] to verify, and [neglecting] to
establish, the facts and circumstances that gave rise to the alleged debt in the
amount of $913.00, and the legitimacy there of, when in fact, said debt was a
double billing, for which the defendant MSH was not entitled, and an inquiry
would have revealed same as such, . . .” 2nd Am. Compl. ¶ 16. It appears the

28

plaintiff is alleging that the NCG defendants violated section 1692g(a) by failing to
verify the legitimacy of the $913.00 debt. However, as explained above in Part
IV.A.4, section 1692g(a) does not require debt collectors to verify the legitimacy
of the underlying debts, and thus this claim is not cognizable. The motion to
amend is denied as futile with regards to this claim, without leave to replead as it
would be futile.
B. HIPAA CLAIMS
Defendants argue correctly that HIPAA does not provide a federal private
right of action. See, e.g., Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of
Am., 639 F. Supp. 2d 371, 377 (S.D.N.Y. 2009) (collecting cases); Mascetti v.
Zozulin, No. 3:09-cv-963, 2010 U.S. Dist. LEXIS 39003, (D. Conn. Apr. 20, 2010)
(“Enforcement of the statute and its regulations is limited to the Secretary of
Health and Human Services; thus, there is no private right of action.”) (citing
Rzayeva v. United States, 492 F. Supp. 2d 60, 83 (D. Conn. 2007)). Plaintiffs’
HIPAA claims are dismissed as to all defendants without leave to replead as it
would be futile.
The court does not opine as to whether HIPAA creates a legal duty of care
which could form the basis of a state common law cause of action. See generally
I.S. v. Washington University, No. 4:11cv235SNLJ, 2011 U.S. Dist. LEXIS 66043
(E.D. Mo. June 14, 2011) (noting that plaintiff cites to HIPAA as creating the duty
of care the violation of which would form the basis of a state common law
negligence claim); Acosta v. Byrum, 638 S.E. 2D. 246 (N. C. Ct. App. 2006) (noting
that plaintiff relies on HIPAA to establish the standard of care for a negligence

29

claim, the failure of which to meet constituted a basis for a state common law
cause of action).
1. Violations of 45 CFR 164.502
Plaintiff alleges in his amended complaint that MSH and MSHI violated 45
C.F.R. 164.502 by failing to “make reasonable efforts to limit the use and
dissemination of personal identifiable information, and to disclose the minimum
necessary to accomplish the intended purpose.” Am. Compl. ¶ 9. In his
proposed second amended complaint plaintiff reiterates that claim against the
MSH defendants and also levies the same claim against the NCG defendants. 2nd
Am. Compl. ¶¶ 36-37.
45 C.F.R. 164.502 is a regulation promulgated under HIPAA, and as there is
no federal cause of action under HIPAA, see supra Part IV.B, the court declines to
recognize a private right of action under this regulation. Cf. Harmon v. Maury
County, No. 1:05-0026, 2005 U.S. Dist. LEXIS 48094, at *6 (M.D. Tenn. Aug. 31,
2005) (noting that 45 C.F.R.164.502 is promulgated under HIPAA, and that “[n]o
federal court reviewing the matter has ever found that Congress intended HIPAA
to create a federal private right of action.") (quoting Dominic J. v. Wyo. Valley W.
High Sch., 362 F. Supp. 2d 560, 572 (M.D. Pa. 2005)). Because this claim is not
cognizable, the court dismisses this claim, and denies the motion to amend as
futile as to this claim.
VI. STATE LAW CLAIMS

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Plaintiff alleges a number of state law claims, including negligence, breach
of contract, tortious interference with contract, breach of fiduciary duty of
medical privacy, and breaches of Connecticut privacy statutes and regulations.
Because the court dismisses plaintiff’s federal law claims, and because plaintiff
has failed to establish diversity jurisdiction, the court will decline to exercise
jurisdiction over plaintiff’s state law claims, and will dismiss them without
prejudice to re-filing in state court. "[T]he district courts may decline to exercise
supplemental jurisdiction over a [state law] claim . . . if . . . the district court has
dismissed all claims over which it has original jurisdiction." 28 U.S.C. §
1367(c)(3); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)
(noting that although dismissal of the state law claims is not mandatory “in the
usual case in which all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction doctrine -- judicial
economy, convenience, fairness, and comity -- will point toward declining to
exercise jurisdiction over the remaining state-law claims.”).
Federal courts are courts of limited jurisdiction. Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374 (1978) (“It is a fundamental precept that federal
courts are courts of limited jurisdiction”). The plaintiff bears the burden of
proving that the court has jurisdiction. Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000) (“A plaintiff asserting subject matter jurisdiction has the burden
of proving by a preponderance of the evidence that it exists"). Devine has
asserted that jurisdiction is based on federal question jurisdiction and
supplemental jurisdiction. His complaints allege that:

31

Jurisdiction is founded upon multiple violations of Title
15, Section 1692 of the United States Code, commonly
referred to as The Fair Debt Collection Practices Act, the
Health Insurance Portability and Accountability Act of
1996, and is an action to recover compensatory and
punitive damages against the subject defendants for
various violations of The Fair Debt Collection Practices
Act, and the medical privacy statutes of the State of
Connecticut violated as a result of the convergent acts
of the defendants, acting both jointly and severally.
Am. Compl. at 1; 2nd Am. Compl. at 1. The facts as alleged, were they sufficient
to maintain a claim, would have established federal question jurisdiction only.
See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United
States”). The facts alleged suggest that there is no diversity jurisdiction.
Although the plaintiff does not state where he resides, he filed the action in
Connecticut District court and provided the court a Connecticut post office box
as his mailing address. The Complaint also alleges that all of the defendants are
either Connecticut entities or employees of Connecticut entities. Therefore the
Court concludes that it does not have diversity jurisdiction.
If plaintiff wishes to reassert the basis for the Court’s jurisdiction, he must
file a motion to amend, accompanied by an amended complaint that adequately
alleges facts establishing jurisdiction, which allegations must be more than
naked assertions unsupported by factual enhancement, on or before the
fourteenth day following the date of this decision. Failure to file a motion to
amend on or before the fourteenth day following the date of this decision, or
failure to include sufficient allegations in the proposed amended complaint will
result in final dismissal of this action.

32

VII. CONCLUSION
Based upon the above reasoning, defendants’ motions to dismiss are
granted, and plaintiff’s motion to amend is denied. To the extent that the
document at docket number 56 can be construed as a motion for the court to
grant his motion to amend, that motion is denied for the reasons described
above. For the claims that the court has granted leave to replead, the motion to
amend must be filed on or before October 14, 2014. Failure to file a motion to
amend on or before October 14, 2014, or to otherwise comply with the above
instructions regarding repleading of those claims, will likely result in final
dismissal of those claims and this action. Such dismissal is without prejudice to
any rights the Plaintiff may have to file the state law claims in state court.
Finally, the court having taken notice of the state court litigation between
plaintiff and MSH, see supra footnote 2, the court notes that plaintiff’s full name
appears on that docket in that action as Robert Devine. As plaintiff has not
sought or obtained approval of the court to proceed under a pseudonym, the
court orders the clerk to amend the docket to reflect plaintiff’s full name.
IT IS SO ORDERED.

__________/s/________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 30, 2014

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