BURRIS v. IC SYSTEM
OPINION. Signed by Chief Judge Jose L. Linares on 10/2/17. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 16-7566 (JLL)
LINARES, Chief District Judge.
This matter comes before the Court by way of Plaintiff Marie Burns’ Motion to Voluntarily
Dismiss her Complaint pursuant to Rule 41(a)(2) of the federal Rules of Civil Procedure (ECF
No. 14). Defendant has submitted Opposition (ECF No. 16), to which Plaintiff has replied. (ECF
No. 17). The Court decides this matter without oral argument pursuant to Rule 78 of the Federal
Rules of Civil Procedure. For the reasons set forth below, the Court grants Plaintiffs Motion to
Voluntarily Dismiss her Complaint in its entirety.
The Court presumes the parties are familiar with the factual background and the allegations
asserted in the Complaint. Moreover, this Motion does not necessarily deal with intricate details
of Plaintiffs allegations. Accordingly, the Court will set forth a brief background and provide the
relevant procedural posture of this action.
This background is derived from Plaintiffs Complaint, which the Court must accept as tme at this stage of the
proceedings. See Aiston v. Countiywide fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).
On October 19, 2016, Plaintiff, a New Jersey resident, brought this action seeking to
recover damages claiming that Defendant violated the Fair Debt Collection Practices Act
(“FDCPA”) and Telephone Consumer Protection Act (“TCPA”).
(ECF No. I (“Compi.”)).
Defendant is a Minnesota corporation and a debt collector as defined by the FDCPA and TCPA.
Plaintiff asserts that, beginning in July 2016, Defendant placed numerous calls
to her cellular phone regarding two unknown parties named Roslyn Witt and “Charlene,” and not
for Plaintiff. (Compl.
13-16). At least some of said calls were automated and contained pre
recorded messages. (Cornpl.
Plaintiff spoke to Defendant and advised that Defendant was calling the wrong number,
and asked Defendant to stop calling her. (Compi.
19-21). However, Plaintiff asserts that,
despite Defendant’s assurances that it would stop calling Plaintiff, the calls continued. (Compl.
Hence, Plaintiff brought this action to recover damages for violations of the FDCPA
During discovery, Defendant advised Plaintiff that “it had located an account on which it
called Plaintiff, but stated ‘[Defendant’s] account notes and recordings show [Defendant] never
spoke to [Plaintiff] and she did not revoke her consent to be called.” (ECF No. 14 (“P1. Mov.
Accordingly, Defendant asked that this action be dismissed, and Plaintiff responded by
asking for a copy of said notes and recordings. (Id.). Defendant failed to provide this information
upon Plaintiffs informal request, prompting Plaintiff to send Defendant a formal discovery
demand for said information on March 31, 2017.
4). Plaintiff asserts that Defendant
produced the demanded call logs and/or recordings on August 12, 2017. (Id.
The call logs showed that Defendant called Plaintiff eight times over the course of 12 days
in October 2016. (Id.
Upon learning this information, and “given the fact that district courts
have been divided on” whether eight calls over a 12 day period constitutes violations of the FDCPA
and TCPA, “Plaintiff decided not to seek to amend her Complaint to state that the calls were for
her and not for a third party, and pursue” any claims under the FDCPA or the TCPA (Id.
8 is improperly numbered as
¶ 7, $ (J
Plaintiff and Defendant’s counsel discussed the records and Plaintiff agreed to dismissing
this action with prejudice and with each side bearing their own costs. (Id.
improperly numbered as
9-10 (which are
“Defendant refused to agree to dismissal with prejudice” with
each side bearing their own costs. (Id.
(which is improperly numbered as ¶ 10). Accordingly,
Plaintiff brought this Motion to have this action dismissed and for each party to bear their own
A party may voluntarily dismiss a claim through filing a notice to the Court prior to an
answer or a motion for summary judgment by the defendant. See Fed. R. Civ. P. 41(a)(1); In re
Bath and Kitchen Fixtures Antitrust Litig., 535 F.3 d 161, 165-66 (3d Cir. 2008). After the filing
of an answer or a motion for summary judgment, “an action may be dismissed at the plaintiffs
request only by court order, on terms that the court considers proper.” fed. R. Civ. P. 41(a)(2).
“Rule 41 motions ‘should be allowed unless defendant will suffer some prejudice other than the
mere prospect of a second lawsuit.” In re Paoli R.R. Yard FB Litig., 916 f.2d 829, 863 (3d Cir.
1990) (quoting 5 J. Moore, Moore’s federal Practice 41.05, at 41-62 (1988)).
Defendant does not oppose the portion of Plaintiffs Motion seeking dismissal with
prejudice. (See generally ECF No. 16 (“Def. Opp. Br.”)). This Court has reviewed the action, as
well as the parties submissions, and finds that dismissal is appropriate under Rule 41. Accordingly,
Plaintiffs Complaint is hereby dismissed with prejudice.
However, Defendant does oppose Plaintiffs request to have each party bear their own
costs. (Def. Opp. Br. at 3). According to Defendant, it is entitled to attorneys’ fees and repayment
of the costs associated with this litigation, because Plaintiff brought this FDCPA and TCPA action
in bad faith. (Id.). Defendant further argues that Rule 54(d)(1) of the Federal Rules of Civil
Procedure allow this Court to award Defendant attorneys’ fees, if Plaintiff acted in bad faith by
bringing or maintaining this action in general. (Id. at 4). Finally, Defendant asserts it is entitled
to fees and costs under 2$ U.S.C.
§ 1927, which permits such an award if a party’s attorney abuses
the court process. (Id. at 5 (quoting 28 U.S.C.
§ 1927)). The Court rejects all three of these
First, while it is true that, under
§ 1692k(a)(3) of the FDCPA, a defendant may recover fees
and costs from a plaintiff if that plaintiff brought his or her FDCPA action in bad faith, such an
award is not warranted here. Indeed, a review of the record before this Court indicates Plaintiff
brought this action believing Defendant violated the FDCPA and TCPA. (See generally Compl.).
Afier the institution of the action, Plaintiff and Defendant engaged in discussions regarding the
source and recipient of the purportedly violative phone calls. (P1. Mov. Br.
¶ 3). Defendant
The Court also notes that Defendant’s request for fees and costs is procedurally deficient as Defendant did not cross
move for fees and costs, consistent with fed. R. Civ. P. 7 and L. Civ. R. 7.1. Rather, Defendant asks for said relief
by way of opposition. Nonetheless, for the reasons set forth infra, the Court denies said request on the merits.
responded that it found record of calls made to Plaintiff, but that Defendant never spoke with
4). This conversation prompted Plaintiff to informally seek proof (Id.
Defendant never provided proof and Plaintiff sought to obtain said infonriation via formal
discovery demands. (Id.). Defendant finally provided said information in August 2017, which
ultimately led to Plaintiff seeking dismissal of this action.
This sequence of events does not indicate Plaintiff brought, and maintained, this action in
bad faith. Rather, it shows that Plaintiff brought an action believing Defendant violated both the
FDCPA and TCPA. Afier the action was brought, Defendant, by way of counsel, essentially stated
that it did not violate said statutes. Plaintiff’s counsel reasonably requested proof to assure that
this infonnation was indeed true. Five month later Defendant provided the information, and
Plaintiff chose not to pursue this action. Instead, Plaintiff asked Defendant to agree to a voluntary
dismissal because she was unsure if she had any chance of success. Based on these facts, the Court
finds that Plaintiff acted in a reasonable manner and in good faith throughout this litigation.
Accordingly, the Court will not award Defendant fees or costs for alleged any bad faith conduct
on the part of Plaintiff
The Court will also not award Defendant fees or costs pursuant to Rule 54(d)(l). That
Rule, along with the case of Marx v. General Revenue Corp., permits a prevailing party to recover
attorneys’ fees and costs of litigation if a lawsuit was maintained in bad faith. See Fed. R. Civ. P.
54(d)(l); Marx v. General Revenue Corp., 56$ U.S. 371, 376-78 (2013). However, as discussed
above, this Court finds that Plaintiff did not maintain this action in bad faith, rather, just the
opposite. Therefore, fees and costs under Rule 54(d)(l) are inappropriate here.
Finally, Defendant is
entitled to attorneys’ fees or costs of litigation under 2$ U.S.C.
1927. That statute allows a prevailing party to recover fees and costs when an attorney, and not
the litigant, abuses of court processes. See 2$ U.S.C.
§ 1927. Here, the Court finds no abuse of
court processes or procedures. Further, aside from Defendant’s ad horninern attacks on Plaintiffs
counsel, Defendant itself points to no actual abuse of process in this case.
The fact of the matter is, Plaintiff brought an action believing a violation occurred.
Defendant asserted no violation occurred, but failed to provide proof of same for nearly half of a
year. Upon receipt of said inforniation, Plaintiff sought to resolve the matter by entering into a
stipulation of dismissal with prejudice. Defendant refused, because it believed it was entitled to
some sort of relief, despite Plaintiffs willingness to conclude the matter upon realizing she erred
in bringing the action. This cannot be viewed as abuse of court process by Plaintiffs counsel.
Thus, the Court denies the request under 2$ U.S.C.
For the aforementioned reasons, Plaintiffs Motion to Voluntarily Dismiss her Complaint
is hereby granted in its entirety. An appropriate Order accompanies this Opinion.
Chief Judge, United States District Court
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