NASRUDDIN v. HARRISON
Filing
9
MEMORANDUM OPINION AND ORDER denying 4 Motion to Dismiss the Complaint. Signed by Judge Kevin McNulty on 9/27/2016. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16-935 (KM)
NASR NASRUDDIN,
Plaintiff,
MEMORANDUM OPINION and
ORDER
MICHAEL HARRISON, ESQ.,
Defendant.
MCNULTY, U.S.D.J.:
The plaintiff, Nasr Nasruddin, brings this action pro se against an
attorney, Michael Harrison, Esq., claiming breach of the federal Fair Debt
Collection Practices Act (FDCPA). Harrison has filed a motion (ECF no. 4) to
dismiss the complaint for failure to state a claim, pursuant to Fed. R. Civ. P.
12(b)(6); Nasruddin has filed a response (ECF no. 5); Harrison has filed a reply
(ECF no. 6); and Nasruddin has filed what amounts to a surreply (ECF no. 8).
I.
APPLICABLE STANDARD
FED. R. CIV. P. 12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion
to dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S.
490, 501 (1975); Tmmp Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillzs v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined by
later Supreme Court Twombly case, infra).
FED. R. Civ. p. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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.” Ashcroft u. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’
...
it asks for more than a sheer possibility.” Iqbal, 556
U.S. at 678 (2009).
“Where the plaintiff is a pro se litigant, the court has an obligation to
construe the complaint liberally.” Giles v. Keamey, 571 F.3d 318, 322 (3d Cir.
2009) (citing Haines v. Kerner, 404 U.S. 519, 520-52 1 (1972); Gibbs v. Roman,
116 F.3d 83, 86 n. 6 (3d Cir. 1997)). Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “[A] litigant is not absolved
from complying with Twombly and the federal pleading requirements merely
because s/he proceeds pro
Se.”
Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir.
2010) (citation omitted).
II.
DISCUSSION
The complaint is somewhat difficult to follow. The underlying transaction
is a debt for medical services. Nasruddin alleges that Harrison, a collection
attorney, failed to comply with the FDCPA, 15 U.S.C.
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§ 1692. The allegation
seems to be that, despite letters from Nasruddin contesting the debt, Harrison
failed to supply him with required information, including the name and
address of the creditor and the amount of the debt. One sticking point seems to
be the identity of the creditor. Nasruddin alleges that the only agreement he
ever signed was with Englewood Hospital and Medical Center. The creditor on
the debt upon which he was sued, however, was Cardiac Surgery Group of
Hackensack. Nasruddin also objects to the tactics of Harrison in the state
action, which resulted in a judgment against him in the amount of $15,000.
Harrison’s motion contains a recitation of facts that is is not, in any
straightforward way, based on the complaint. Most of it is devoted to a
recitation of the proceedings in New Jersey state court. Harrison cites a state
court standard for deciding a motion to dismiss. (His reply brief cites federal
law.)
Harrison attaches a copy of an agreement. (ECF no. 4-2) The agreement
is with Engeiwood Hospital Medical Center. Harrison does not explain the
relationship between this entity and Cardiac Surgery Group of Hackensack,
which he says was the creditor and plaintiff in the state action.
Harrison is perhaps suggesting that these matters are of public record,
or that they are part and parcel of the complaint. See Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014) (Court on rule 12(b)(6) motion can consider
“document integral to or explicitly relied upon in the complaint”). There seems
to be a dispute, however, over whether this is the right contract, and Harrison’s
procedural history of the state litigation does not cite to any publicly available
source. Harrison seems to be implying that some or all of the matters raised by
Nasruddin are res judicata, but these pleadings do not contain the documents I
would need to decide that issue.
The motion to dismiss will be denied. This might be a matter that could
be decided on an early, focused motion for summary judgment, properly
supported and brought in compliance with the Local Rules and Fed. R. Civ. P.
56. A conference with the Magistrate Judge would be highly advisable.
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ORDER
For the reasons expressed in the foregoing opinion,
IT IS this 27th day of September, 2016
ORDERED that the defendant’s motion (ECF no. 4) to dismiss the
complaint is DENIED.
I
,
kc /
HON. KEVIN MCNULTY, U.S.19f
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