Fitzgerald v. Williams & Fudge, Inc.

Filing 15

For the foregoing reasons, W&F's motion to dismiss is granted and Fitzgerald's motion for leave to file an amended complaint is denied without prejudice to renewal. No judgment shall issue at this time. If Fitzgerald fails to file a propose d amended complaint and pre-motion conference letter within 30 days of the date of this Order, judgment may enter against her. This action is recommitted to the assigned Magistrate Judge for all remaining pre-trial matters, including settlement discussions if appropriate. Ordered by Chief Judge Roslynn R. Mauskopf on 5/18/2020. (Taronji, Robert)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SAM FITZGERALD, on behalf of herself and all
others similarly situated,
Plaintiff,

MEMORANDUM AND ORDER
17-CV-7074 (RRM) (RLM)

- against WILLIAMS & FUDGE, INC.,
Defendant.
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ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Plaintiff Sam Fitzgerald brings this putative class action against Williams & Fudge, Inc.,
(“W&F”), alleging that a debt collection letter sent by W&F violated the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, (“FDCPA”), in three respects. Williams & Fudge now moves
to dismiss all three causes of action alleged in the complaint. Fitzgerald does not contest the
motion, but instead withdraws two causes of action and seeks permission to amend her complaint
to cure a defect W&F has identified in her third cause of action. For the reasons below, W&F’s
motion to dismiss is granted and Fitzgerald’s motion for leave to file an amended complaint is
denied without prejudice to renewal.
BACKGROUND
I.

Factual Background
Unless otherwise noted, the following facts are drawn from the complaint, (Complaint

(“Compl.”) (Doc. No. 7)), and are assumed to be true for the purposes of this Order. As of July
11, 2016, Fitzgerald owed at least $54,307.15 on a past-due loan issued by United Guaranty.
(Compl., Ex. A.) W&F sent Fitzgerald a letter on or about July 11, 2016, seeking to collect on
the debt. (Id.; Compl. at ¶¶ 7–9.) The letter included the following text:

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As of the date of this letter, the amount placed into collections is $54,307.15.
Because of interest, late charges, and other charges that may vary from day to day,
the amount due on the day you pay may be greater. Hence, if you pay the amount
shown above, an additional balance may remain after we receive your payment.
For further information, write or call the undersigned.
(Compl., Ex. A.)
On July 11, 2017, Fitzgerald filed a summons with notice in the Supreme Court of the
State of New York, Kings County, alleging that W&F’s letter violated provisions of the FDCPA.
(Notice of Removal (Doc. No. 1) at 1–2.) On December 5, 2017, W&F removed the action to
this Court, invoking this Court’s federal question jurisdiction over FDCPA claims. See 28
U.S.C. § 1331. (Id.) The Court subsequently directed Fitzgerald to file a complaint with the
Court. (Order of 4/6/2018.) On April 13, 2018, Fitzgerald filed the instant complaint. (Compl.)
The complaint advances three FDCPA claims. First, Fitzgerald alleges that W&F’s letter
failed to “set forth the amount of the ‘debt’” in violation of § 1692g(a)(1). (Compl. at ¶¶ 18–20.)
Second, Fitzgerald alleges that W&F’s letter was “false, deceptive or misleading” in violation of
§ 1692e. (Id. at ¶¶ 21–22.) Fitzgerald’s third cause of action is premised on hypothetical facts
rather than allegations. In reference to the above-quoted text from W&F’s letter, Fitzgerald
claims:
If there is no agreement which allows the addition of all three of the aforementioned
items, “interest, late charges, and other charges”, [sic] W&F violated 15 USC §
1692g(a)(1), 15 USC § 1692e, and/or 15 USC § 1692e(10) as a result of setting forth in
the above statement “interest, late charges, and other charges” rather than “interest, late
charges, or other charges[.]”
(Id. at ¶ 25.)
II.

Motion to Dismiss
W&F now moves to dismiss all three causes of action in Fitzgerald’s complaint. (Notice

of Motion (Doc. No. 11).) Relying on the Second Circuit’s recent decision in Kolbasyuk v.
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Capital Management Services, LP, 918 F.3d 236 (2d Cir. 2019), W&F moves to dismiss the first
cause of action, arguing that, by stating the amount due at the time the letter was sent, the letter
fully complied with § 1692g(a)(1), despite not including the amount the debt would increase due
to interest and other charges. (Memorandum of Law in Support of Motion (“Mot.”) (Doc. No.
12) at 7–8.) W&F next moves to dismiss Fitzgerald’s second cause of action under § 1692e,
arguing that Fitzgerald pleads no specific facts in support of this claim. (Id. at 9.) Finally, W&F
moves to dismiss Fitzgerald’s third cause of action, arguing that W&F failed to plead facts to
support the claim, and instead based its claim on a hypothetical – that W&F may not have had an
agreement allowing the addition of interest, late charges, and other charges. (Id.) W&F also
maintains that even if Fitzgerald included such an allegation, the claim would fail because the
letter accurately states the current amount of the debt and the language about which Fitzgerald
complains tracks the safe harbor language established in Avila v. Riexinger & Assocs., LLC, 817
F.3d 72 (2d Cir. 2016). (Id. at 10.)
In her opposition to the motion to dismiss, Fitzgerald withdraws her first and second
causes of action. (Memorandum of Law in Opposition (“Opp. Mot.”) at 1.) With respect to her
third cause of action, Fitzgerald moves to amend her complaint in order to “affirmatively plead
that there is no agreement which allows the addition of all three of the aforementioned items,
‘interest, late charges, and other charges.’” (Id. at 1–2.) Fitzgerald seeks to argue on the basis of
this allegation that W&F’s use of the safe harbor language violated § 1692e because it
misleadingly implied that interest, late charges, and other charges were all accruing when there
was no agreement permitting all of those charges to accrue. (Id. 2–6.)

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In its reply, W&F argues that Fitzgerald’s request for leave to amend should be denied as
futile. Even with the new allegation, W&F argues, the letter would not be misleading in
violation of § 1692e. (Reply Memorandum (“Reply”) (Doc. No. 14) at 4–6.)
DISCUSSION
I.

Motion to Dismiss
As noted above, Fitzgerald has withdrawn her first and second causes of action. (Opp.

Mot. at 1.) With respect to Fitzgerald’s third cause of action, Fitzgerald appears to concede that
she has not properly pled her third cause of action. In her opposition brief, Fitzgerald does not
oppose W&F’s arguments in favor of dismissing her third cause of action, and instead seeks to
amend her complaint with respect to that cause of action. (Id.) Accordingly, each of
Fitzgerald’s causes of action as pled in the complaint should be dismissed.
II.

Leave to Amend
In her opposition to the motion to dismiss, Fitzgerald moves for leave to amend her

complaint pursuant to Federal Rule of Civil Procedure 15(a). (Opp. Mot. at 1–2.) However,
under this Court’s Individual Rules, Fitzgerald is not permitted to move for leave to amend
without first filing a letter requesting a pre-motion conference. This Court’s Individual Rule
III(A)(2) provides:
For any dispositive motion, motion for a change of venue or motion to amend a pleading
pursuant to Federal Rule of Civil Procedure 15 (where leave of Court is required), a premotion conference is required. The movant shall send a letter to the Court, not to exceed
three (3) pages, requesting such conference, with a brief description of the grounds for
such motion. Such letter shall be served on all parties. Parties so served may serve and
file a letter response, not to exceed three (3) pages, within five (5) days of service of the
letter requesting a pre-motion conference.
Because Fitzgerald has not filed a letter requesting a pre-motion conference with respect to her
motion for leave to amend her complaint, her motion for leave to amend is denied. Within 30

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days of the date of this Order, Fitzgerald is directed to file a proposed amended complaint and a
letter in compliance with this Court’s Individual Rule III(A)(2). Within five days of service of
the proposed amended complaint and letter, W&F shall file a response in compliance with
Individual Rule III(A)(2). Upon receiving the parties’ filings, the Court will determine whether a
pre-motion conference is required regarding Fitzgerald’s motion for leave to amend.
CONCLUSION
For the foregoing reasons, W&F’s motion to dismiss is granted and Fitzgerald’s motion
for leave to file an amended complaint is denied without prejudice to renewal. No judgment
shall issue at this time. If Fitzgerald fails to file a proposed amended complaint and pre-motion
conference letter within 30 days of the date of this Order, judgment may enter against her. This
action is recommitted to the assigned Magistrate Judge for all remaining pre-trial matters,
including settlement discussions if appropriate.
SO ORDERED.
Dated: Brooklyn, New York
May 18, 2020

Roslynn R. Mauskopf
________________________________
ROSLYNN R. MAUSKOPF
Chief United States District Judge

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