Zahoruiko v. Metcalf et al

Filing 61

ORDER granting 52 Motion for Judgment on the Pleadings. See the attached Order. The clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 10/24/2016. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

J. GRAHAM ZAHORUIKO,
Plaintiff,
v.
ANDREW C. METCALF, et al.,
Defendants.

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CIVIL ACTION NO.
3:15-cv-00042 (VLB)

October 24, 2016

RULING AND ORDER
Before the court is a Motion for Judgment on the Pleadings filed by two of the
three Defendants, Linda Brossi-Murphy, and David A. Brossi Limited Partnership
(“Movants”). The third Defendant, Andrew C. Metcalf, does not join in this
motion. J. Graham Zahoruiko (“Plaintiff”) brought an action on January 12, 2015,
asserting that the Defendants violated sections 1692e, 1692e(8), 1692f and
1692g(a)(1) of the Fair Debt Collection Practices Act (“FDCPA”) in attempting to
collect a debt.
The following facts are taken from the Plaintiff’s Complaint. The subject debt
is unpaid rent owed pursuant to the terms of a May 10, 2010 lease between “David
A. Brossi Limited Partnership and Refresh Software Corporation” (“Lease”).1
Plaintiff’s Complaint, Attachment A (“Zahoruiko Affidavit”) ¶ 3, Dkt. 1. The
Plaintiff signed the Lease in his capacity as an officer of Refresh Software
Corporation. Id. On January 3, 2012, David A. Brossi Limited Partnership filed a

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The Plaintiff also alleged violations of two Connecticut state laws: the Creditor’s
Collection Practices Act; Conn. Gen. Stat. §§ 36a-645, 648; and the Connecticut
Unfair Trade Practices Act; Conn. Gen. Stat. §§ 42-110b-g.

small claims action against (1) Graham Zahoruiko and (2) Refresh Software
Corporation to recover the non-payment of “corporate rents” due under the
Lease. Plaintiff’s Complaint ¶ 8. The court entered a default judgment against
Refresh Software Corporation but did not enter a judgment against the Plaintiff
due to the automatic stay imposed by the Plaintiff’s pending bankruptcy case.
Plaintiff’s Complaint, Zahoruiko Affidavit ¶¶ 4-5. Thereafter the Defendants
sought to recover from the Plaintiff the debt owed by Refresh Software
Corporation for the lease of its business premises. See Plaintiff’s Complaint ¶ 8,
Zahoruiko Affidavit ¶¶ 3-5.
The Complaint makes clear that all three FDCPA claims pertain to
commercial rather than consumer debt. The FDCPA only creates a cause of
action for efforts to collect debts arising from transactions “primarily for
personal, family, or household purposes,” 15 U.S.C. § 1692a(5), and does not
cover “actions arising out of commercial debts.” Goldman v. Cohen, 445 F.3d
152, 154 n.1 (2d Cir. 2006). Therefore, these claims are not redressible and must
be DISMISSED for lacking subject matter jurisdiction as to the Movants.
The Court may also dismiss the FDCPA claims as to Metcalf on the same
grounds. The Court has a duty to dismiss any claim sua sponte over which it
lacks subject matter jurisdiction, even if the issue is not raised by the parties.
Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56,
62 (2d Cir. 2009). Consequently, the FDCPA claims against Andrew C. Metcalf are
DISMISSED.

The Plaintiff may move to reopen the case within 35 days of the date of this
order, but only upon a showing supported by legal authority that the FDCPA
applies to the commercial debt collections alleged in the Complaint.
The two remaining claims are state law claims under the Creditor’s
Collection Practices Act (“CCPA”) and the Connecticut Unfair Trade Practices Act
(“CUTPA”). As there has never been a viable federal claim and the remaining
claims are state claims, this Court declines to exercise supplemental jurisdiction.
Thus, the CCPA and CUTPA claims are DISMISSED without prejudice to refiling
them in state court.
The Motion for Judgment on the Pleadings is GRANTED. All FDCPA claims
against all of the Defendants are DISMISSED. The Clerk is directed to close the
case.
IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: October 24, 2016