FRAZIER v. MORRISTOWN MEMORIAL HOSPITAL et al
Filing
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OPINION. Signed by Judge Esther Salas on 09/17/2018. (sms)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WANDA FRAZIER,
Plaintiff,
v.
MORRISTOWN MEMORIAL
HOSPITAL; PRESSLER AND
PRESSLER, LLP; AND DOES 1-10,
Defendants.
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Civil Action No. 17-6631 (ES) (JAD)
OPINION
SALAS, DISTRICT JUDGE
Before the Court are Defendants Pressler and Pressler LLP’s (“Pressler” or “P&P LLP”)
and Morristown Memorial Hospital’s (the “Hospital”) (collectively, “Defendants”) motions to
dismiss pro se Plaintiff Wanda Frazier’s (“Plaintiff”) Complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
(D.E. Nos. 13 & 14).
Having considered the parties’
submissions, the Court decides the motions without oral argument under Federal Rule of Civil
Procedure 78(b). For the reasons below, the Court GRANTS Defendants’ motions and dismisses
Plaintiff’s Complaint with prejudice.
I.
BACKGROUND
The Court writes primarily for the parties and provides only those facts necessary for its
analysis.1 Pro se Plaintiff filed a putative class-action Complaint against Defendants on August
31, 2017. (See D.E. No. 1 (“Compl.”) at 1, 4-5).2 Plaintiff alleges that Defendants violated the
The Court must accept Plaintiff’s factual allegations as true for purposes of resolving the pending motion to
dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
1
2
The Court refers to the ECF-generated page numbers for this document.
1
Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), New Jersey Consumer
Fraud Act, N.J.S.A. 56:8-1, et seq. (“CFA”), and several Pennsylvania consumer-protection
statutes in their attempts to collect debt for hospital services provided to Plaintiff’s now exhusband, Ronald Frazier. (See generally id.).
The crux of Plaintiff’s Complaint is that “Defendants have uniformly engaged in a scheme
of illegal and deceptive business practices that violate both federal and state law in attempting to
collect hospital debt from Plaintiff, Wanda Frazier by using false information and documentation
. . . .” (Id. at 1). Plaintiff’s Complaint references multiple state-court actions in which the Hospital
sought to collect debt from Plaintiff and Mr. Frazier for services rendered to Mr. Frazier on
November 4, 2000 and March 17, 2002. (Id. at 2, 8).
Specifically, in 2002, the Hospital (represented by Pressler) filed an action against Plaintiff
and Mr. Frazier in the Superior Court of New Jersey, under docket number DC-002051-02 (the
“Collection Lawsuit”) seeking approximately $4,000.00. (Id. ¶¶ 37-46; Compl. Ex. A). On
December 23, 2002, the state court entered judgment against Plaintiff and Mr. Frazier in the
amount of $4,210.25. (D.E. No. 13-1 at 21-25).3 Plaintiff moved to vacate the Collection Lawsuit
judgment on October 12, 2007, but her motion was denied. (Id. at 26-33). The judgment against
Plaintiff and Mr. Fraizer remains open. (Id. at 22).
Defendants collected a portion of the judgment through a wage execution. (Compl. ¶¶ 18,
30, 73, 80; Compl. Exs. D & E). On March 16 and 27, 2017, Pressler mailed a letter to Plaintiff
seeking to collect the remainder of the judgment. (Compl. ¶ 49; Compl. Exs. D & E). Each letter
contained a disclosure at the bottom of the page: “This communication is from a debt collector.
3
The Court refers to the ECF-generated page numbers for this document.
2
This is an attempt to collect a debt. Any information obtained will be used for that purpose.”
(Compl. ¶ 49; Compl. Exs. D & E).
Approximately two months after Pressler’s March 2017 letters, on May 25, 2017, Plaintiff
filed an action against Pressler in the Superior Court of New Jersey, under docket number MRSDC-003799-17, alleging violation of the FDCPA for Pressler’s efforts to collect on the judgment
from the Collection Lawsuit (the “Prior FDCPA Action”). (D.E. No. 13-1 at 4-10). In the Prior
FDCPA Action, Plaintiff alleged that (i) “[o]n March 6,th, [sic] March 18th, and, March 30, 2017,
Plaintiff mailed P&P LLP letters demanding that they fully validate the debt and provide proof of
ownership in its attempt to collect the Debt”; and (ii) “[d]espite having received Plaintiff’s request
to validate debt P&P LLP are still attempting to collect on debt which they have not verified nor
validated the debt.” (Id. at 8). The Prior FDCPA Action was dismissed for failure to state a claim
New Jersey Court Rule 4:6-2(e) on July 12, 2017. (Id. at 20).
Pressler moved to dismiss Plaintiff’s Complaint on February 9, 2018. (D.E. No. 13-2
(Pressler’s Mov. Br.”)). The Hospital followed suit on February 21, 2018. (D.E. No. 14-1
(“Hospital’s Mov. Br.”)). Plaintiff opposed both motions. (D.E. No. 15 (“Pl.’s Opp. Br.”); D.E.
No. 20 (“Pl.’s Opp. Ltr.”)). The Hospital and Pressler replied to Plaintiff’s oppositions on March
22 and 23, 2018, respectively. (D.E. No. 22 (“Hospital’s Reply Br.”); D.E. No. 23 (“Pressler’s
Reply Br.”)). Plaintiff then submitted several sur-replies without leave of Court, which the
Hospital requested that the Court disregard. (D.E. Nos. 24-27). This matter is now ripe for
resolution.
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II.
LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(6)
To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
Pro se litigants’ complaints are held “to less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Courts must “apply the relevant
legal principle even when the complaint has failed to name it.” Mala v. Crown Bay Marina, Inc,
704 F.3d 239, 244 (3d Cir. 2013). However, “pro se litigants still must allege sufficient facts in
their complaints to support a claim.” Id. at 245 (citation omitted).
“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits
attached to the complaint, matters of the public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010). But a limited exception to conversion exists for “document[s]
integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997). “The purpose of this rule is to avoid the situation where a
plaintiff with a legally deficient claim that is based on a particular document can avoid dismissal
of that claim by failing to attach the relied upon document.” Jeffrey Rapaport M.D., P.A. v. Robins
S. Weingast & Assocs., Inc., 859 F. Supp. 2d 706, 714 (D.N.J. 2012) (citation omitted). “When
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allegations contained in a complaint are contradicted by the document it cites, the document
controls.” Id. (citation omitted).
B. Federal Rule of Civil Procedure 12(b)(1)
In reviewing a Rule 12(b)(1) motion, the Court must first determine whether the “motion
presents a ‘facial’ attack or a ‘factual’ attack on the claim at issue, because that distinction
determines how the pleading must be reviewed.” Constitution Party of Pa. v. Aichele, 757 F.3d
347, 357 (3d Cir. 2014) (citations omitted). Defendants filed their motions to dismiss before they
filed any answer to the Complaint or otherwise presented competing facts. (See D.E. Nos. 13 &
14). Their motions were “therefore, by definition, a facial attack.” Id. at 358; see also Askew v.
Church of the Lord Jesus Christ, 684 F.3d 413, 417 (3d Cir. 2012) (“As the defendants had not
answered and the parties had not engaged in discovery, the first motion to dismiss was facial.”).
“In reviewing a facial attack, the court must only consider the allegations of the complaint and
documents referenced therein and attached thereto, in the light most favorable to the plaintiff.”
Constitution Party of Pa., 754 F.3d at 358 (citations and internal quotation marks omitted). “Thus,
a facial attack calls for a district court to apply the same standard of review it would use
in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor
of the nonmoving party.” Id. (citation omitted).
III.
DISCUSSION
A. Pressler’s Motion to Dismiss
In support of its motion, Pressler argues in part that Plaintiff already litigated her current
claims against Pressler in the Prior FDCPA Action to a final disposition on the merits in the
Superior Court of New Jersey, and this federal lawsuit is barred under New Jersey’s res judicata
and entire controversy doctrines. (Pressler’s Mov. Br. at 11-12). The Court agrees.
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Res Judicata. “New Jersey res judicata or claim preclusion law,4 like federal law, has
three essential elements: (1) a final judgment on the merits; (2) the prior suit involved the same
parties or their privies; and (3) the subsequent suit is based on the same transaction or occurrence.”
Smith v. Hillside Vill., No. 17-0883, 2018 WL 588923, at *6 (D.N.J. Jan. 26, 2018) (citing Watkins
v. Resorts Int’l Hotel & Casino, Inc., 591 A.2d 592, 599 (N.J. 1991) (state law); and United States
v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984) (federal law)). If those three requirements
are met, then the doctrine bars “the parties or their privies from relitigating issues that were or
could have been raised in that action.” Allen, 449 U.S. at 94 (citation omitted); Brown v.
Felsen, 442 U.S. 127, 131 (1979) (“Res judicata prevents litigation of all grounds for, or defenses
to, recovery that were previously available to the parties, regardless of whether they were asserted
or determined in the prior proceeding.”) (citation omitted); Watkins, 591 A.2d at 599 (“Claim
preclusion applies not only to matters actually determined in an earlier action, but to all relevant
matters that could have been so determined.”) (citation omitted).
Entire Controversy Doctrine. A “blood relative[]” to res judicata, the entire controversy
doctrine is New Jersey’s “specific, and idiosyncratic, application of traditional res judicata
principles.” Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). “The
entire controversy rule precludes, not just claims actually decided by a prior judgment, but all
claims and parties that a party could have joined in a prior case based on the same transaction or
occurrence.” Smith v. Hillside Vill., 279 F. Supp. 3d 537, 545 (D.N.J. 2017). “There is no
requirement that the claim as to which preclusion is sought have been actually asserted in the
4
Whether a state court judgment should have a preclusive effect in a subsequent federal action depends on the
law of the state that adjudicated the original action. See Greenleaf v. Garlock, Inc., 174 F.3d 352, 357 (3d Cir. 1999);
see also Allen v. McCurry, 449 U.S. 90, 96 (1980) (“Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would
do so.”). Here, that State is New Jersey.
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prior action.” Id. at 546. Rather, the necessary relation between the prior action and the present
one is a factual, transactional one:
In determining whether a subsequent claim should be barred under this
doctrine, the central consideration is whether the claims against the different
parties arise from related facts or the same transaction or series of
transactions. It is the core set of facts that provides the link between distinct
claims against the same parties and triggers the requirement that they be
determined in one proceeding. There is no requirement that there be a
commonality of legal issues.
Wadeer v. N.J. Mfrs. Ins. Co., 110 A.3d 19, 27 (N.J. 2015) (cleaned up). So, the entire controversy
doctrine applies in federal court “when there was a previous state-court action involving the same
transaction.” Bennun v. Rutgers State Univ., 941 F.2d 154, 163 (3d Cir. 1991). In other words,
“[i]t extinguishes any subsequent federal-court claim that could and should have been joined in
the prior state action.” Smith, 279 F. Supp. 3d at 546.
“The objectives behind the doctrine are threefold: (1) to encourage the comprehensive and
conclusive determination of a legal controversy; (2) to achieve party fairness . . . ; and (3) to
promote judicial economy and efficiency by avoiding fragmented, multiple and duplicative
litigation.” Mystic Isle Dev. Corp. v. Perskie & Nehmad, 662 A.2d 523, 529 (N.J. 1995) (citation
omitted). “As an equitable doctrine, its application is flexible, with a case-by-case appreciation
for fairness to the parties.” Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999).
Analysis. The Court first turns to whether the prior suit involved the same parties or their
privies. Smith, 2018 WL 588923, at *6. In the Prior FDCPA Action, Plaintiff brought claims
against Pressler. (See D.E. No. 13-1 at 4-10). Thus, the prior suit involves the same parties for
res judicata purposes.
Next, the Court considers whether the prior state action comprised final judgment on the
merits. Smith, 2018 WL 588923, at *6. The Prior FDCPA Lawsuit resulted in a dismissal for
failure to state a claim under New Jersey Rule 4:6-2(e), which is a final judgment on the merits for
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res judicata purposes. See Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3rd Cir. 2007) (“Dismissal
for failure to state a claim is a final judgment on the merits for res judicata purposes.”); Velasquez
v. Franz, 589 A.2d 143, 148 (N.J. 1991) (“Not surprisingly, therefore, a dismissal under Rule 4:62(e), New Jersey’s analogue to Federal Rule of Civil Procedure 12(b)(6), has also operated as an
adjudication on the merits for res judicata purposes”) (citations omitted).
Finally, the Court considers whether the instant suit is based on the same transaction or
occurrence as Plaintiff’s Prior FDCPA Action. Smith, 2018 WL 588923, at *6. Whether two
causes of action are identical depends, in general, on a consideration of:
(1) whether the acts complained of and the demand for relief are the same
(that is, whether the wrong for which redress is sought is the same in both
actions); (2) whether the theory of recovery is the same; (3) whether the
witnesses and documents at trial are the same (that is, whether the same
evidence necessary to maintain the second action would have been
sufficient to support the first); and (4) whether the material facts alleged are
the same.
Athlone Indus., Inc., 746 F.2d at 984 (citation omitted).
The Court concludes that the claims in Plaintiff’s current Complaint are identical to the
Prior FDCPA Action for res judicata purposes. The acts complained of and the theories of
recovery in both the Prior FDCPA Action and the matter at hand are the same. In the Prior FDCPA
Action, Plaintiff (like in this case) alleged a violation of the FDCPA for Pressler’s efforts to collect
on the judgment from the Collection Lawsuit. (D.E. No. 13-1 at 4-10; see generally Compl.). In
that case, Plaintiff alleged (like here) that Pressler’s actions violated the FDCPA “by using abusive
or deceitful debt collection practices.” (D.E. No. 13-1 at 9; Compl. ¶¶ 2, 77-78). And in both
cases, Plaintiff seeks statutory damages, attorney’s fees and costs, and punitive damages, among
others. (D.E. No. 13-1 at 9; Compl. ¶¶ 74, 76). Moreover, the same evidence necessary to maintain
Plaintiff’s allegations in this action would have been sufficient to support her claims in the Prior
FDCPA Action. Put differently, to prove her claims here, Plaintiff would have to present the same
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evidence—including testimony and documents—that would have been necessary in the Prior
FDCPA Action.
The Court does note, however, that Plaintiff includes new claims in the instant Complaint
under the CFA and several Pennsylvania consumer-protection statutes. (Compl. ¶¶ 77-83). But
Plaintiff’s allegations under these new causes of action are identical to the claims adjudicated in
the Prior FDCPA Action. (See generally Compl.; D.E. No. 13-1 at 4-10; Compl.). “Simply
presenting new allegations is not sufficient to overcome claim preclusion if the thrust of the two
complaints remain[s] practically identical.” Zahl v. Warhaftig, 655 F. App’x 66, 73 (3d Cir. 2016)
(internal quotation marks and citations omitted). In other words, a new legal theory “does not
make the second case different for purposes of claim preclusion.” Jones v. Lapina, 450 F. App’x
105, 108-09 (3d Cir. 2011). And Plaintiff does not contend that there were any barriers which
prevented her from bringing these claims in the Prior FDCPA Action. Plaintiff’s new claims could
have and should have been raised in her state action. Plaintiff’s attempt to relitigate claims that
have resulted in a final judgment therefore fails under New Jersey’s claim preclusion
jurisprudence. Cf. Edmundson v. Boro. of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993) (“Claim
preclusion . . . prohibits reexamination not only of matters actually decided in prior cases, but also
those that the parties might have, but did not, assert in that action.”).
In opposing Pressler’s motion, Plaintiff avers that adding the Hospital (which was not a
party to the Prior FDCPA Action) to the instant suit saves her claims from the application of res
judicata. (Pl.’s Opp. Br. at 29-31). But failing to include parties who could and should have been
named in the prior lawsuit does not preclude Plaintiff’s claims from being barred by res judicata.
See Gordon v. E. Orange Veterans Hosp., No. 11-4066, 2013 WL 5730496, at *9 (D.N.J. Oct. 22,
2013). Plaintiff knew of the Hospital’s involvement before filing the Prior FDCPA Action, yet
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she failed to include the Hospital in that action. Again, “[t]he entire controversy rule precludes,
not just claims actually decided by a prior judgment, but all claims and parties that a party could
have joined in a prior case based on the same transaction or occurrence.” Smith, 279 F. Supp. at
545. Given these circumstances, the Court finds that Plaintiff could have joined the Hospital in
the Prior FDCPA Action and her failure to do so does not bar the application of res judicata now.
See id.
As for Plaintiff’s argument that the March 2017 letters from Pressler comprise new
evidence that would prevent the application of res judicata (D.E. No. 24 at 2-7), the Court notes
that the March 2017 letters were available as evidence before Plaintiff filed the Prior FDCPA
Action on May 25, 2017, and thus are not new evidence restricting application of res judicata. See
Molloy v. Astrue, No. 08-4801, 2010 WL 421090, at *26 n.31 (D.N.J. Feb. 1, 2010) (“[B]ecause
there is nothing particularly new in [Plaintiff’s] testimony that is not already in the record, this
additional evidence is less convincing as an argument against res judicata.”). Accordingly,
Plaintiff’s allegations against Pressler, all of which occurred prior to the filing of the Prior FDCPA
Lawsuit, are barred by the doctrine of res judicata.
Asking this Court to determine, based on the same evidence as was before the New Jersey
Superior Court, whether Pressler violated the FDCPA would require a federal court to question
the final judgment of a state court. The Full Faith and Credit Clause of the Federal Constitution,
codified in statute, requires that federal courts give “full faith and credit” to the judgments of state
courts. U.S. Const. art. IV, § 1; 28 U.S.C. § 1738. Accordingly, Pressler’s motion is granted and
Plaintiff’s claims against Pressler are dismissed with prejudice.
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B. The Hospital’s Motion to Dismiss
The Hospital argues that Plaintiff’s claims under the FDCPA are time barred, and, in any
event, the Court lacks federal-question jurisdiction because the FDCPA does not apply to the
Hospital. (Hospital’s Mov. Br. at 5-6, 8-10). Specifically, the Hospital argues that it cannot be
liable under the statute because it is not a “debt collector” as defined in the FDCPA. (Id. at 8).
Even assuming that it is a debt collector, and therefore subject to FDCPA liability, the Hospital
contends that Plaintiff’s factual allegations fail to state a claim under Rule 12(b)(6). (Id. at 2-5).
FDCPA. The FDCPA is a remedial statute geared towards eliminating abusive practices
by debt collectors. 15 U.S.C. § 1692k; see also Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d
Cir. 2006) (describing the FDCPA’s legislative history and general application). “To prevail on
an FDCPA claim, a plaintiff must prove that (1) she is a consumer, (2) the defendant is a debt
collector, (3) the defendant’s challenged practice involves an attempt to collect a ‘debt’ as the
[FDCPA] defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to
collect the debt.” St. Pierre v. Retrieval-Masters Creditors Bureau, Inc., No. 17-1731, 2018 WL
3733860, at *3 (3d Cir. Aug. 7, 2018) (citation omitted).
The FDCPA applies only to “debt collectors,” defined as any person: (i) “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 (ii) “who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.” Tepper v. Amos Fin., LLC,
No. 17-2851, 2018 WL 3733862, at *1 (3d Cir. Aug. 7, 2018) (citations omitted); 15 U.S.C. §
1692a(6). “Specifically excluded from the definition’s reach are, in relevant part, a creditor’s
officers and employees collecting debts for the creditor, a company collecting debts only for its
non-debt-collector sister company, an entity collecting a debt it originated, and one collecting a
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debt it obtained that was not in default at the time of purchase.” Id. (citing 15 U.S.C. §
1692a(6)(A), (B), (F)).
Analysis. The FDCPA has a one-year initiation period. See 15 U.S.C. § 1692k(d) (“An
action to enforce any liability created by [the FDCPA] may be brought . . . within one year from
the date on which the violation occurs.”). Plaintiff appears to allege that Defendants (i) “us[ed]
false information and documentation” (i.e., allegedly false medical statements) to collect a debt;
and (ii) “routinely and conspiratorially participate and engage in the initiation and perpetuation of
attempts to collect debt from and against persons the documentation for which is knowingly false,
non-existent, or otherwise not available to substantiate the cause(s) of action asserted in attempting
to collect alleged debt obligations, and the categories sought to be collected under [the Collection
Lawsuit].” (Compl. ¶¶ 2-5). Holding pro se Plaintiff’s Complaint to less stringent standards and
giving Plaintiff every favorable inference, the only allegations against the Hospital appear to relate
to allegedly false medical statements from 2000 and 2002. (See id. ¶¶ 7-8, 11, 39, 45-46, 80; see
also Compl. Ex. A). So, even assuming that the FDCPA applies to the Hospital,5 Plaintiff’s time
to file a claim under the FDCPA expired in 2003, at the latest. Plaintiff’s FDCPA claims against
the Hospital therefore are time-barred and must be dismissed.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss and
Plaintiff’s Complaint is dismissed with prejudice. Given that Plaintiff’s federal FDCPA claims
Plaintiff alleges that the Hospital is a “debt collector,” as the term is defined by the FDCPA. (Compl. ¶ 22).
But the Complaint fails to provide any factual support for this claim. Cf. Slate v. D.C., 79 F. Supp. 3d 225, 232
(D.D.C. 2015) (“FDCPA does not apply to creditors who collect their own debts; FDCPA applies only to debt
collectors who collect debts owed to another.”) (citation omitted). To survive the Hospital’s motion, Plaintiff’s
Complaint must contain sufficient factual matter, which the Court will accept as true, to state a claim for relief that is
“plausible on its face.” Twombly, 550 U.S. at 570. The Court need not, however, accept as true the asserted bald legal
conclusion that the Hospital is a “debt collector” as defined by the FDCPA. See Iqbal, 556 U.S. at 678.
5
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have been dismissed, the Court declines to address the merits of Plaintiff’s state law claims. 6 An
appropriate Order accompanies this Opinion.7
s/ Esther Salas
Esther Salas, U.S.D.J.
See Bland v. Aviles, No. 11-1742, 2012 WL 137783, at *7 (D.N.J. Jan. 18, 2012) (“Where the federal claims
are dismissed at an early stage in the litigation, courts generally decline to exercise supplemental jurisdiction over
state claims.”) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Growth Horizons, Inc. v.
Delaware Cty., Pa., 983 F.2d 1277, 1284 (3d Cir. 1993)).
6
7
In light of this ruling, the Court need not address the parties’ alternative arguments.
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