Rodriguez v. I.C. System, Inc.

Filing 21

ORDER. For the reasons stated in the annexed Memorandum and Order, defendants motion for summary judgment is GRANTED. Each party shall bear its own fees and costs, pursuant to 15 U.S.C. § 1692k(a)(3). The Clerk of Court is respectfully directed to enter judgment for defendant and close the case. Ordered by Judge Kiyo A. Matsumoto on 9/28/2016. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
WENDY TORRES RODRIGUEZ,
Plaintiff
MEMORANDUM AND ORDER
- against I.C. SYSTEMS, INC.,

14-CV-06558(KAM)(JO)

Defendant.
--------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Wendy Torres Rodriguez (“plaintiff” or “Ms.
Rodriguez”) brings this action pursuant to 15 U.S.C. § 1692f(8) of
the Fair Debt Collection Practices Act (“FDCPA”). Presently before
the court is defendant I.C. Systems, Inc.’s (“defendant” or “ICS”)
Motion for Summary Judgment (the “Motion”). For the reasons stated
herein the Motion is granted.
Background
For

the

purpose

of

defendant’s

considers the following undisputed facts. 1

1

motion,

the

court

ICS sent a letter,

These facts are taken from defendant’s Local Rule 56.1 Statement of Material
Facts (“56.1 Statement”) submitted with this motion and other documents in the
record. (ECF No. 19-10 and the record generally). Plaintiff did not file a
counter 56.1 statement pursuant to Local Civil Rule 56.1(b) in opposing
defendant’s motion for summary judgment. Pursuant to Rule 56.1, the “papers
opposing a motion for summary judgment shall include a correspondingly numbered
paragraph responding to each numbered paragraph” in defendant’s 56.1 statement
with citation to admissible evidence.
LOCAL CIVIL RULE 56.1 OF THE UNITED STATES
DISTRICT COURTS FOR THE SOUTHERN AND EASTERN DISTRICTS OF NEW YORK.
Upon review of
defendant’s 56.1 Statement, the court finds that defendant’s statement of
undisputed material facts is adequately supported by admissible evidence,
including, the sworn statement of Ryan Bacon, Vice President of Operations of
I.C. Systems, a true and correct copy of the Letter, plaintiff’s verified
interrogatory responses and other documents in the record. (ECF Nos. 19-8 and

dated January 4, 2014, (the “Letter”) to plaintiff seeking to
collect

on

a

debt

that

was

assigned

plaintiff’s original creditor.

to

it

by

Con

Edison,

(Local Rule 56.1 Statement of

Material Facts (“56.1 Statement”), ECF No. 19-10 at ¶¶ 3-4).

The

Letter contains an I.C. System Reference Number (“64140020-1-19”
or

the

“ICS

Reference

Number”),

which

is

a

unique

internal

reference number ICS assigns to each account it receives from a
creditor.

(Id. at ¶¶ 5-6, 8).

The number does not have any

significance to anyone outside of ICS.

(Id. at ¶ 7).

Located

above plaintiff’s name and address on the Letter is a string of
numbers,
Number.

64140020-1-19/0510
(Id. at ¶ 10).

which

includes

the

ICS

Reference

The ICS Reference Number has no relation

to any of plaintiff’s personal identifying information.
¶ 11).
and

(Id. at

Plaintiff alleges that the ICS Reference Number, her name

address

were

visible

through

the

glassine

window

envelope (the “Envelope”) when she received the Letter.

of

the

(ECF No.

1, Complaint (“Compl.”) at ¶ 25).

19-12). Consequently, absent any contrary evidence the court deems admitted
the facts set forth in defendant’s 56.1 Statement. See Nolen v. Goord, 218 F.
App’x 41, 43 (2d Cir. 2007) (noting that plaintiff did not file a responding
statement of disputed material facts pursuant to Local Rule 56.1 and thus
defendants’ denials “may be deemed admitted”); Glassman-Blanco v. Delta
Airlines, Inc., No. 13CV4287KAMSMG, 2016 WL 1171611, at *1 (E.D.N.Y. Mar. 25,
2016) (deeming admitted facts set forth in defendant’s 56.1 statement when
plaintiff did not file a responding statement of disputed material facts
pursuant to the local rules).

2

On November 6, 2014 plaintiff filed the Complaint.
No. 1).

(ECF

Defendant filed its answer on February 9, 2015, and served

interrogatories
plaintiff

and

failed

document

to

requests

respond

on

May

timely.

21,

(Montoya

(“Montoya Decl.”), ECF No. 19-2 at ¶¶ 4-6).

2015,

but

Declaration

Plaintiff served her

unverified interrogatory responses that attached a copy of the
Letter on July 17, 2015, and provided a verification for her
interrogatory responses on August 18, 2015.

(Montoya Decl., ECF

No. 19-8 at ¶¶ 8, 10; Ex. F to Montoya Decl., ECF No. 19-8 at 11).
Plaintiff, however, did not appear for her noticed deposition nor
did she respond to defendant’s document demands which sought, among
other things, a full and complete copy of the Letter and a copy of
the Envelope in which the Letter arrived.

(Montoya Decl., ECF No.

19-2 at ¶ 6; Ex. C to Montoya Decl., ECF No. 19-5 at ¶¶ 9-18).
Defendant

also

requested

that

plaintiff

produce

the

original

Letter and the original Envelope, but plaintiff did not do so.
(56.1 Statement, ECF No. 19-10 at ¶ 21).
status

report

to

the

court

on

The parties filed a joint

September

2,

2015,

in

which

plaintiff’s counsel confirmed that the Envelope was no longer
available.

(Ex. G to Montoya Decl., Status Update dated September

2, 2015, ECF No. 19-9).
On November 16, 2015, the parties submitted the present
motion.

(ECF Nos. 18 to 20).

Defendant argues that it is entitled
3

to summary judgment because (1) plaintiff’s claim fails as a matter
of law because without the original Envelope, plaintiff cannot
establish what, if any, identifying information was visible and
(2) even if the ICS Reference Number was visible, the ICS Reference
Number does not reveal any identifying information about plaintiff
and therefore it falls within the benign language exception to §
1692f(8) of the FDCPA that has been recognized and applied in the
Second Circuit.

(ECF No. 19-11 at 5-6).
Standard of Review

A court may grant summary judgment if the moving party
establishes that “there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). No genuine dispute as to any material
fact “exists when the moving party demonstrates, on the basis of
the

pleadings

and

submitted

evidence,

and

after

drawing

all

inferences and resolving all ambiguities in favor of the nonmovant, that no rational jury could find in the non-movant’s
favor.”

Zirogiannis v. Nat’l Recovery Agency, Inc., No. CV 14-

3954, 2015 WL 8665448, at *3 (E.D.N.Y. Dec. 11, 2015) (citing
Chertkova v. Conn. Gen’l Life Ins. Co., 92 F.3d 81, 86 (2d Cir.
1996)).

“The

moving

party

bears

the

initial

burden

of

demonstrating the absence of a genuine issue of material fact.”
Hooks v. Forman Holt Eliades & Ravin LLC, No. 11 CIV. 2767 LAP,
4

2015 WL 5333513, at *2 (S.D.N.Y. Sept. 14, 2015) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986).

A moving party may discharge its burden by showing

“that there is an absence of evidence to support the nonmoving
party’s case.”

PepsiCo, Inc. v. CocaCola Co., 315 F.3d 101, 105

(2d Cir. 2002) (quoting Celotex, 477 U.S. at 325).
After the initial burden is met, the non-movant must
present “specific facts showing that there is a genuine issue for
trial.”

Hooks, 2015 WL 5333513, at *3 (citing Davis v. State of

New York, 316 F.3d 93, 100 (2d Cir. 2002)).

The non-moving party

“cannot defeat the motion by relying on the allegations in [its]
pleading or on conclusory statements, or on mere assertions that
affidavits supporting the motion are not credible.”

Gottlieb v.

Cnty. of Orange, 84 F.3d 511, 518 (2d Cir.1996) (citation omitted).
“[C]onclusory statements, conjecture or speculation by the party
resisting the motion will not defeat summary judgment.”

Kulak v.

City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citations
omitted).
Discussion
The court finds that plaintiff cannot prove her case
because she cannot produce the Envelope giving rise to her claims.
PepsiCo, 315 F.3d at 105.

Even construing all evidence in favor

of the non-moving plaintiff, and assuming the ICS Reference Number
5

was visible through the Envelope, the court finds that the exposure
of the ICS Reference Number, a string of random digits, does not
violate § 1692f(8) of the FDCPA.

Accordingly, defendant’s summary

judgment motion is granted.
In

her

opposition

to

defendant’s

motion,

plaintiff

submits no evidence or counter 56.1 statement, but instead argues
that defendant violated § 1692f(8) of the FDCPA, because the ICS
Reference Number, which plaintiff calls an “account number,” was
visible when she received the Letter in the mail.

(Plaintiff’s

Memorandum in Opposition to Defendant’s Motion (“Opp. Br.), ECF
No. 18 at 3).

Section 1692f(8) prohibits debt collectors from:

[u]sing any language or symbol, other than the
debt collector’s address, on any envelope when
communicating with a consumer by use of the
mails or by telegram, except that a debt
collector may use his business name if such
name does not indicate that he is in the debt
collection business.
15 U.S.C. § 1692f(8). 2

In construing the statue, courts have

relied on Congress’ expressed intent and guidance from the Federal
Trade Commission 3 and have concluded that “a literal application

2

“Reviewing courts look at FDCPA claims using the ‘least sophisticated consumer’
standard of review, that is, the test is how the least sophisticated consumer—
one not having the astuteness of a ‘Philadelphia lawyer’ or even the
sophistication of the average, every day, common consumer—understands the notice
he or she receives.” Robinson v. Mun. Servs. Bureau, No. 15CV04832JGRML, 2015
WL 7568644, at *2 (E.D.N.Y. Nov. 24, 2015) (quoting Russell v. Equifax A.R.S.,
74 F.3d 30, 34 (2d Cir. 1996)).

3 The Federal Trade Commission has stated that “[a] debt collector does not
violate this section by using an envelope with words or notations that do not

6

of the statute would [] prohibit the inclusion of the recipient’s
name, her address, or preprinted postage, which would . . . yield
the absurd result that a statute governing the manner in which the
mails may be used for debt collection might in fact preclude the
use of the mails altogether.”

Gardner v. Credit Mgmt. LP, 140 F.

Supp. 3d 317, 320 (S.D.N.Y. 2015).

Thus, courts have recognized

a “benign exception” to § 1692f(8) of the FDCPA which allows bill
collectors to include language and symbols on their mailings,
including internal reference numbers, as long as the language and
symbols are not indicative of the party’s status as a debtor and
do not reveal other private information about the party. See Perez
2015 WL 4557064, at *3 (recognizing a benign exception to §
1692f(8) of the FDCPA); Gardner, 140 F. Supp. 3d at 321; Robinson
v. Mun. Servs. Bureau, No. 15 CV 4832, 2015 WL 7568644, at *3
(E.D.N.Y.

Nov.

24,

2015)(same);

Gelinas

v.

Retrieval-Masters

Creditors Bureau, Inc., No. 15 CV 116, 2015 WL 4639949, at *3
(W.D.N.Y. July 22, 2015) (same); Chavez v. MCS Claim Services,
Inc., No. 15-CV-3160(JMA)(AKT), 2016 WL 1171586 at *2 (E.D.N.Y.
March 23, 2016) (same).
Here, plaintiff argues, without proffering any evidence,
that the ICS Reference Number was visible and therefore the FDCPA

suggest the purpose of the communication.” Perez, 2015 WL 4557064, at *2.
(citing 53 Fed. Reg. 50097, 50108 (Dec. 13, 1988)).

7

was violated because the ICS Reference Number, “is a core piece of
information pertaining to plaintiff’s status as a debtor” and
public

disclosure

of

the

ICS

Reference

plaintiff’s “financial predicament.” 4
3).

Number

would

expose

(Opp. Br., ECF No. 18 at

Numerous courts however, have “reject[ed] the contention that

the mere presence of a reference number—a string of random digits—
creates an actionable violation under the FDCPA.”

Robinson, 2015

WL 7568644, at *3; see also Gardner, 140 F. Supp. 3d at 324 (“A
string of alphanumeric characters does not disclose anything about
[plaintiff’s] private affairs.”); Perez, 2015 WL 4557064, at *4
(holding

that

“plaintiff's

account

number—a

string

of

eight

meaningless digits—falls comfortably within the ‘benign language’
exception to § 1692f(8)”); Gelinas, 2015 WL 4639949, at *4 (“[I]t
cannot be said that the visibility of a series of letters and
numbers above the recipient’s name is capable of identifying that
person

as

a

debtor.

The

series

of

numbers

and

letters

is

4 Plaintiff relies on the Third Circuit decision, Douglass, which found that an
account number printed on an envelope sent by a debt collector is “a core piece
of information pertaining to the debtor’s status as a debtor and Defendant’s
debt collection effort. Disclosed to the public, it could be used to expose
[the debtor’s] financial predicament.” Douglass v. Convergent Outsourcing, 765
F.3d 299, 303 (3d Cir. 2014). This court is not bound by the Douglass ruling
and declines, like other courts in the Second Circuit and elsewhere, to follow
it. See Robinson, 2015 WL 7568644, at *4 n.3 (agreeing with the Perez court
that the Douglass ruling “is unsupported by any analysis as to how the printing
of random symbols, meaningful only to those at the organization who issued those
symbols and who already know the consumer is in debt, can be used to expose a
consumer’s status as a debtor”); Gardner, 140 F. Supp. 3d at 322-23 (declining
to follow Douglass, disagreeing with its analysis and finding that the internal
ICS Reference number did not indicate plaintiff’s debtor status and therefore
its disclosure was not a FDCPA violation).

8

indecipherable

to

anyone,

sophisticated

or

not,

and

its

significance only becomes apparent when the letter is opened.”);
Whyte v. Commonwealth Fin. Sys., No. 14 CV 7029 (FB)(RML), 2016 WL
3556770, at *2 (E.D.N.Y. Mar. 3, 2016), report and recommendation
adopted, No. 14CV07029FBRML, 2016 WL 3545701 (E.D.N.Y. June 24,
2016) (“[I]nclusion of plaintiff’s account number on the outside
of the mailing is not a violation of the FDCPA.”); Chavez v. MCS
Claim Services, Inc., No. 15-CV-3160(JMA)(AKT), 2016 WL 1171586,
at

*2

(E.D.N.Y.

March

23,

2016)(holding

that

defendant’s

disclosure of plaintiff’s account number through the glassine
window of the envelope was not a violation of the FDCPA because
plaintiff failed to allege that the account number contained any
specific identifying information or that the account number looked
different from other junk mail). 5
Similarly

here,

the

ICS

Reference

Number

does

not

contain any specific information indicating that plaintiff is a

5

Courts in other jurisdictions have found that § 1692f(8) does not bar
meaningless markings on the outside of an envelope. See e.g. Gonzalez v. FMS,
Inc., No. 14 Civ. 9424(RC), 2015 WL 4100292, at *4–5 (N.D. Ill. July 6, 2015);
Goswami v. Am. Collections Enterprise, Inc., 377 F.3d 488, 494 (5th Cir. 2004)
(collecting cases); Marx v. General Revenue Corp., 668 F.3d 1174, 1177 (10th
Cir. 2011) (holding that an internal account number on a facsimile sent by a
debt collector to a debtor’s employer did not violate the FDCPA); Brooks v.
Niagara Credit Solutions, Inc., No. 15-9245-JWL, 2015 WL 6828142 at *6 (D. Kan.
Nov. 6, 2015) (“An internal account number, without more, simply cannot suggest
to an observer that the envelope contains debt collection correspondence.”);
Datta v. Asset Recovery Sols., LLC, No. 15-CV-00188-LHK, 2016 WL 3163142, at *9
(N.D. Cal. June 7, 2016) (holding that reference number was benign language and
did not constitute a violation of the FDCPA).

9

debtor.

The ICS Reference Number is meaningless to anyone outside

of ICS, including the least sophisticated consumer, and plaintiff
has not shown that the ICS Reference Number is any different from
the identifiers used on junk mail.

See Robinson, 2015 WL 7568644,

at *3 (holding that a visible reference number was not a FDCPA
violation and noting that plaintiff had not alleged that the
reference number looked different from similar identifiers that
appeared on junk mail communications that Americans received every
day).

Accordingly, the court finds as a matter of law that the

FDCPA was not violated even if the ICS Reference Number was
displayed on the Envelope.

Therefore, defendant’s motion for

summary judgment is granted.
Defendant’s

requests

for

attorneys’

fees

is

denied,

although plaintiff’s failure to retain the Envelope, a material
piece of evidence giving rise to her claim, presents a close case.
See Perez, 2015 WL 4557064, at *5 (ordering each party to bear
their own costs after finding that the account number being visible
through the envelope did not amount to an FDCPA violation and
dismissing the complaint).

Plaintiff’s counsel is advised that he

should not commence actions if he lacks evidence to prove his
clients’ claim.

10

Conclusion
A

series

of

digits

does

not

reveal

any

private

information about plaintiff; specifically, a series of digits does
not reveal plaintiff’s financial condition or her status as a
debtor.

The court agrees with other courts within the Second

Circuit that have found no § 1692f(8) FDCPA violation where a
series of alphanumeric characters, which includes an internal
reference number, is visible on or through an envelope.

For the

foregoing reasons, defendant’s motion for summary judgment is
GRANTED.

Each party shall bear its own fees and costs, pursuant

to 15 U.S.C. § 1692k(a)(3).

The Clerk of Court is respectfully

directed to enter judgment for defendant and close the case.
SO ORDERED.
Dated:

September 28, 2016
Brooklyn, New York

___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

11