Beauvior et al v. Israel

Filing 23

MEMORANDUM & ORDER: Isreals motion to dismiss 15 is granted and the complaint is dismissed. Ordered by Judge Frederic Block on 8/7/2014. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GARY BEAUVIOR and HUSBENE
BEAUVIOR, on behalf of themselves
and all other similarly situated
customers,
Plaintiffs,

MEMORANDUM AND ORDER
No. 13-CV-01236 (FB) (RML)

-againstDAVID M. ISRAEL,
Defendant.
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Appearances
For the Plaintiffs:
LEVI HUEBNER, ESQ.
Levi Huebner & Associates, PC
478 Malbone Street, Suite 100
Brooklyn, New York 11225

For the Defendant:
MATTHEW J. BIZZARO, ESQ.
L’Abbate, Balkan, Colavita & Contini, LLC
1001 Franklin Avenue, 3rd Floor
Garden City, New York 11530

BLOCK, Senior District Judge:
Gary and Husbene Beauvoir allege that David Israel violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p.1 Pursuant to
Federal Rule of Civil Procedure 12(b)(6), Israel moves to dismiss on the ground
that he was not attempting to collect a “debt” within the meaning of the statute.
For the following reasons, the motion is granted.

1

Although the plaintiffs’ last name is spelled “Beauvior” in the complaint, all
agree that the correct spelling is “Beauvoir.”

I
The allegations of the complaint are brief. The Beauvoirs allege that they
received a letter dated April 23, 2012, from Israel. In the letter, which is attached
as an exhibit to the complaint, Israel identified himself as an attorney representing
National Grid New York, the Beauvoirs’ natural gas company. He stated that his
client had referred the matter to him “for purposes of collection of the debt in the
amount set forth above, based upon the consumption of unmetered gas at [the
Beauvoirs’ residence.]” Compl., Ex. 1.2 Although the April 23rd letter advised the
Beauvoirs of their right to dispute National Grid’s claim, it did not advise them that
they had thirty days to do so. The Beauvoirs allege that the omission violated the
FDCPA. See 15 U.S.C. § 1692g(a).
With his motion to dismiss, Israel has submitted a copy of a state-court
complaint filed by Natural Grid against the Beauvoirs.3 In that complaint, National

2

Despite the reference, the letter did not include a specific amount due.

3

Israel has submitted other documents that the Court cannot consider. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (“For purposes
of [Rule 12(b)(6)], the complaint is deemed to include any written instrument
attached to it as an exhibit or any statements or documents incorporated in it by
reference.” (internal quotation marks and citations omitted)). Court filings,
however, are matters of which judicial notice may be taken, and are therefore
appropriately considered on a motion to dismiss. See Staehr v. Hartford Fin.
Servs. Group, Inc., 547 F.3d 406, 426 (2d Cir. 2008) (“[M]atters judicially noticed
by the District Court are not considered matters outside the pleadings.”)
2

Grid alleges that the Beauvoirs “diverted and consumed unmetered natural gas . . .
by means of unlawfully tampering with [National Grid’s] gas meter to impede,
impair, obstruct and prevent the said meter from performing its recording
function.” Mot. to Dismiss, Ex. 3. The Beauvoirs deny that allegation.
II
The FDCPA defines “debt” as “any obligation or alleged obligation of a
consumer to pay money arising out of a transaction.” 15 U.S.C. § 1692a(5). “[A]t
a minimum, the statute contemplates that the debt has arisen as a result of the
rendition of a service or purchase of property or other item of value.” Beggs v.
Rossi, 145 F.3d 511, 512 (2d Cir. 1998). Beyond that pronouncement, the Second
Circuit has not offered much guidance as to when a particular demand for payment
qualifies as a “debt.” The uniform rule in other circuits, however, is that the statute
does not cover liability for theft and other torts. See Fleming v. Pickard, 581 F.3d
922, 926 (9th Cir. 2009) (“[W]e have little difficulty concluding that Defendants’
cause of action against Plaintiffs for wrongful conversion does not, as a matter of
law, constitute a debt for purposes of the FDCPA.”); Hawthorne v. Mac
Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 1998) (“Because Hawthorne's
alleged obligation to pay Mac Adjustment for damages arising out of an accident
does not arise out of any consensual or business dealing, plainly it does not
constitute a ‘transaction’ under the FDCPA.”); Bass v. Stolper, Koritzinsky,
3

Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir. 1997) (“[A]lthough a thief
undoubtedly has an obligation to pay for the goods or services he steals, the
FDCPA limits its reach to those obligations to pay arising from consensual
transactions, where parties negotiate or contract for consumer-related goods or
services.”). Agreeing with that line of reasoning, another district court in this
circuit has held that “unauthorized reception of [cable service] constitutes theft, not
a receipt of services giving rise to a ‘debt.’” Coretti v. Lefkowitz, 965 F. Supp. 3, 5
(D. Conn. 1997). The Court similarly concludes that obtaining natural gas through
meter tampering is theft and, as such, outside the scope of the FDCPA.
The Beauvoirs emphasize that they have denied National Grid’s claim of
theft. They are correct that the merits of that claim is not a matter for the Court to
decide. See Global Network Commc'ns, Inc. v. City of New York. 458 F.3d 150,
157 (2d Cir. 2006) (“A court may take judicial notice of a document filed in
another court not for the truth of the matters asserted in the other litigation, but
rather to establish the fact of such litigation and related filings.”). But the Court
need not determine whether the Beauvoirs are or are not actually liable to National
Grid for theft. What matters in the context of an FDCPA claim is the asserted basis
for the obligation to pay. Since the April 23rd letter and the state-court complaint
make it clear that Israel was asserting an obligation to pay arising out of an alleged
theft, the Court can decide the issue on a motion to dismiss.
4

III
For the reasons set forth above, Isreal’s motion to dismiss is granted
and the complaint is dismissed.
SO ORDERED.

_/S/Frederic Block
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
August 7, 2014

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