Phaneuf v. Lustig, Glaser & Wilson, P.C.

Filing 17

District Judge Timothy S Hillman: ORDER entered denying 15 Motion to Reopen Case. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

____________________________________
)
RAYMOND PHANEUF,
)
Plaintiff,
)
)
v.
)
)
)
LUSTIG, GLASER & WILSON P.C.
)
Defendant,
)
____________________________________)

CIVIL ACTION
NO. 15-40081-TSH

ORDER
December 8, 2015

HILLMAN, D.J.

Background
On July 1, 2015, Raymond Phaneuf (“Phaneuf” or “Plaintiff”) filed a complaint against
Lustig, Glaser & Wilson (“Lustig Glaser” or “Defendant”) alleging claims for violation of the Fair
Debt Collections Practices Act, 15 U.S.C. § 1692e et seq.(“FDCPA”) (Docket No. 1). More
specifically, Phaneuf alleged that Lustig Glaser violated the FDCPA by falsely representing the
character, amount or legal status of his debt (Count I), communicating or threatening to
communicate credit information which it knew to be false (Count II), misrepresenting the amount
of the debt and that it had sent a discovery request (Count III), and continuing to contact him
without having first providing verification of the debt after he notified them in writing he was
disputing it (Count IV).

Phaneuf is proceeding pro se and, therefore, is not subject to the Court’s Electronic Case
Filing System unless he opts to apply for inclusion and completes the training prerequisites.
Phaneuf has not applied to participate in the electronic filing system and therefore, notices and
pleadings are served on him by mail to the address specified by him in the Complaint.

On July

30, 2015, Lustig Glaser filed a Motion to Dismiss for failure to Prosecute (Docket No. 4) on the
grounds that Phaneuf had failed to comply with this Court’s filing requirements because at the
time he filed the Complaint, he had failed to pay the required filing fee or file a motion to proceed
in forma pauperis. Lustig Glaser mailed a copy of the motion to Phaneuf at his address specified
in the Complaint. Thereafter, Phaneuf paid the filing fee and the motion to dismiss was denied as
moot.
On September 8, 2015, Lustig Glaser filed Defendant Lustig, Glaser & Wilson, P.C.’s
Motion To Dismiss Plaintiff’s Complaint Pursuant To F.R.C.P. 12(B)(6) and 15USC 1692k(d)
(Docket No. 10). Lustig Glaser certified that on September 8, 2015, it had sent paper copies of the
motion and supporting memorandum to Phaneuf at the address specified in the Complaint. In its
motion, Lustig Glaser asserted that Phaneuf’s Complaint should be dismissed because: 1) the
claims asserted therein were brought outside of the applicable statute of limitations and therefore,
are time-barred; and/or 2) the factual allegations contained therein are insufficient to state a
plausible claim under Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S. Ct. 1949 (2009) and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 546, 127 S. Ct. 1955 (2007). Phaneuf did not file an opposition
to the motion to dismiss.
On November 9, 2015, the Court granted the motion to dismiss for the reasons stated in
Defendant’s supporting memorandum. See Docket Entry No. 13. In accordance with this Court’s
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usual procedures, a copy of the Court’s Electronic Order was mailed to Phaneuf at the address
specified in the Complaint. This Order addresses Phaneuf’s motion to reopen his case (Docket No.
15), which was filed on December 2, 2015. For the reasons set forth below, that motion is denied.
Discussion
Phaneuf requests that that the Court vacate the Order dismissing his Complaint and reopen his case.1 A court may not automatically treat a plaintiff’s failure to file an opposition to a
motion to dismiss as a procedural default warranting dismissal irrespective of whether the
Complaint has merit, that is, the Court cannot simply allow the motion to dismiss as a sanction
failure to oppose the motion. Cf. Pomerleau v. West Springfield Public Schools, 362 F.3d 143 (1st
Cir. 2004). At the same time,
Rule 59(e) ‘does not provide a vehicle for a party to undo its own procedural
failures’ or to ‘advance arguments that could and should have been presented to
the district court prior to judgment.’ That a district court may not, without notice,
dismiss the plaintiff's complaint as a sanction for the failure to file an opposition
does not mean that the non-responding plaintiff is relieved of his or her duty ’to
incorporate all relevant arguments in the papers that directly address a pending
motion.’ Thus, a plaintiff who fails to raise any substantive legal arguments prior
to the dismissal of his or her complaint is appropriately limited under Rule 59(e)
to challenging the court’s decision as a manifest error of law.
Id., 362 F.3d at 147 n. 2 (internal citations and citations to quoted cases omitted).
As noted above, the Court dismissed Phaneuf’s claims for the reasons state in
Defendant’s memorandum. The Defendant argued in its memorandum in support of the motion
to dismiss that the claims asserted in the Complaint were time-barred and/or failed to state a
claim. In his motion to vacate, Phaneuf does not argue that the claims were brought within the

1

Because Phaneuf is proceeding pro se, the Court will construe his pleadings liberally. Therefore, I will
assume that through his filing, Phaneuf is seeking to alter or amend the judgment pursuant to Fed.R.Civ.P. 59

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statute of limitations or that the allegations in the Complaint are sufficient to meet the
Iqbal/Twombly plausibility standard. Instead, he asserts that he never received any documents
and did not know he had to state a claim. Neither of these justifications has merit.
First, the Iqbal/Twombly requirement that a Complaint state a plausible claim on its face
has been in place for more than six years and Phaneuf’s pro se status will not excuse his failure
to meet its requirements. See Brown v. Dep’t of Veterans Affairs, 451 F. Supp. 2d 273, 276-77
(D. Mass. 2006)(While Court will construe pro se litigant’s pleadings liberally, “the Court is not
the plaintiff's advocate and will not ‘conjure up implied allegations,’ in order … to state an
actionable claim.”(internal citations and citation to quoted case omitted)). In addition, even
assuming that Phaneuf did not receive copies of the motion to dismiss and the Court’s order
allowing the same, Phaneuf has a duty to periodically check the Court’s docket. Under these
circumstances, Phaneuf has failed to establish that the Court’s dismissal of his claims was a
manifest error of law. For that reason, is motion to re-open the case is denied.
Conclusion
Plaintiff’s motion to re-open this action (Docket No. 15), is denied.

/s/ Timothy S. Hillman______________
TIMOTHY S. HILLMAN
U.S. DISTRICT JUDGE

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