Patisso v. Law Offices of Bruce E. Baldinger, LLC et al

Filing 32

MEMORANDUM AND ORDER terminating 28 Motion to Compel; terminating 30 Motion to Strike; granting 5 Motion to Dismiss; denying 13 Motion to Disqualify Counsel; denying 15 Motion for Order to Show Cause; denying 16 Motion for Order to Show Cause; terminating 18 Motion for Summary Judgment; denying 19 Motion to Strike; terminating 23 Motion for Summary Judgment; terminating 25 Motion to Strike. For the foregoing reasons, Defendants' motion to dismiss (Docket Ent ry 5) is GRANTED, and Plaintiff's motions (Docket Entries 13, 15, 16, 19) are DENIED. The Clerk of the Court is directed to mark this matter closed and to terminate all other pending motions as moot. So Ordered by Judge Joanna Seybert on 10/24/11. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MATEO PATISSO,
Plaintiff,

MEMORANDUM & ORDER
11-CV-1996(JS)(ARL)

-againstLAW OFFICES OF BRUCE E. BALDINGER, LLC,
BRUCE E. BALDINGER, HOWARD A. TEICHMAN,
and PAT GALLER,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Mateo Patisso, pro se
57 A Hillwood Drive
Huntington Station, NY 11746
For Defendants:

Bruce E. Baldinger, Esq.
The Law Offices of Bruce E. Baldinger, LLC
365 South Street
Morristown, NY 07960

SEYBERT, District Judge:
Plaintiff Mateo Patisso commenced this action pro se
against the Law Offices of Bruce E. Baldinger, LLC, Bruce E.
Baldinger,

Howard

A.

Teichman

and

Pat

Galler

(collectively,

“Defendants”) asserting violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1962, et seq. (“FDCPA”), and New York
General Obligations Law § 349.

Pending before the Court is

Defendants’

and

motion

to

dismiss

Plaintiff’s

motions

to

disqualify defense counsel, to hold defense counsel in criminal
contempt, and to strike Defendants’ motion to dismiss.

For the

following reasons, Defendants’ motion is GRANTED and Plaintiff’s
motions are DENIED.1
BACKGROUND2
The claims in this case relate to a lawsuit pending
before Judge Peter G. Sheridan in the District of New Jersey.
On or about June 18, 2010, Defendant Baldinger commenced that
suit

against

action

in

Plaintiff

tort:

injurious

with

others

defamation

falsehood,

interference

and

defamation,

business,

emotional distress.

per

and

(Compl. ¶ 25.)

asserting
se,

seven

invasion

trade

of

libel,

intentional

causes

of

privacy,
tortious

infliction

of

Plaintiff failed to appear

in the action, and default judgment was entered against him on
September 9, 2010, in the amount of $195,000.
28.)

Immediately

thereafter,

(Compl. ¶¶ 27-

“Defendant(s)”3

initiated

1

Also pending are Plaintiff’s motions to strike all of
Defendants’ filings and for summary judgment, and Defendants’
motion for leave-to-file sanctions. Since the Court dismisses
the Complaint, these motions are all DENIED AS MOOT.
2

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
3

Plaintiff refers to the Defendants collectively as
“Defendant(s)” throughout his Complaint. Thus, the Court is
left guessing as to which Defendants Plaintiff is referring.
Defendant Galler is the office manager and secretary for
Defendant Law Offices of Bruce E. Baldinger, LLC, and Teichman
is an attorney licensed to practice in New Jersey who
occasionally works with the Law Offices of Bruce E. Baldinger.
(Def. Mot. 1-2.) The Court notes that the Complaint is devoid
2

collection activity against Plaintiff, including: “telephoning
plaintiff,

sending

emails,

sending

written

correspondence

to

plaintiff and others, enforcing the judgment, issuing writs of
execution and garnishment.”

(Compl. ¶ 28.)

Plaintiff asserts

that these communications failed to comply with the requirements
of the FDCPA because Defendants used threatening and obscene
language,

Defendants

failed

to

identify

themselves

and

state

that Plaintiff owed a debt, and the communications occurred at
unusual

times

employment.

and

in

unusual

places

such

as

his

place

of

(Compl. ¶¶ 30-32.)

On or about February 8, 2011, Judge Sheridan ordered
Baldinger to show cause why the default judgment entered against
Plaintiff

should

not

be

vacated

and

temporarily

enjoined

Baldinger from enforcing the judgment.

(Compl. ¶ 33.)

about

judgment

February

(Compl.

¶

28,

33.)

2011,

Plaintiff

the

default

asserts

that

was

Defendants

On or
vacated.

continued

their collection activities even after the temporary restraining
order was entered by seeking a writ of execution to be issued to
Plaintiff’s

bank

and

garnishing

Plaintiff’s

bank

accounts.

(Compl. ¶ 34, 37.)
On April 22, 2011, Plaintiff filed his Complaint in
this

action

asserting

violations

of

the

FDCPA

and

New

York

of any facts regarding any of the individual Defendants with the
exception of Baldinger.
3

General Business Law § 349 arising out of Defendants’ attempts
to collect on the default judgment.
Defendants,

represented

by

Baldinger,

an

attorney

admitted in the Eastern District of New York, moved to dismiss
the Complaint (1) for failure to state a claim, FED. R. CIV. P.
12(b)(6), (2) for improper venue, FED. R. CIV. P. 12(b)(3), and
(3)

as

personal

against

Defendants

jurisdiction,

FED.

Teichman
R.

CIV.

and
P.

Galler

for

12(b)(2).4

lack

of

Plaintiff

opposed the motion to dismiss and moved to disqualify Baldinger
as defense counsel and to strike all of his filings in this
action for violating New York Judiciary Law § 470.

Because the

Court finds that dismissal is proper under Rule 12(b)(6) and all
of Plaintiff’s motions are meritless, the Court will not address
Defendants’ other arguments.
DISCUSSION
I.

Standard under Rule 12(b)(6)
In

Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles,”

motions

standard,”

to

which

dismiss,
is

guided

the
by

Ashcroft v. Iqbal, 556 U.S. 662,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

all

allegations

4

as

First, although the

true,

this

“tenet”

is

In the alternative, Defendants argue that the action should be
dismissed or transferred to the District of New Jersey pursuant
to the first-filed rule.
4

“inapplicable

to

legal

conclusions;”

thus,

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Harris, 572 F.3d at 72

(quoting Ashcroft, 129 S. Ct. at 1949).

Second, only complaints

that

state

12(b)(6).

a

“plausible

Id.

claim

for

relief”

can

survive

Rule

Determining whether a complaint does so is “a

context specific task that requires the reviewing court to draw
on its judicial experience and common sense.”
Pro

se

pleading standard.

plaintiffs

enjoy

a

Id.

somewhat

more

liberal

See Erickson v. Pardus, 551 U.S. 89, 94, 127

S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (“[A] pro se complaint,
however

inartfully

pleaded,

must

be

held

to

less

stringent

standards than formal pleadings drafted by lawyers.”) (internal
quotations

marks

plaintiffs

must

and

citations

still

omitted).

“comport

substantive rules of law.”

with

the

However,

pro

procedural

se
and

Javino v. Town of Brookhaven, 06-CV-

1245, 2008 WL 656672, at *3 (E.D.N.Y. Mar. 4, 2008).
II.

Fair Debt Collection Practices Act
The FDCPA provides a cause of action for consumers who

have been exposed to “abusive debt collection practices by debt
collectors.”

15 U.S.C. § 1692(e).

As a threshold matter, a

suit brought under the FDCPA must involve a “debt” within the
meaning of the statute.

See Shmerkocvich v. RMC Consulting Grp.

LLC, No. 09-CV-5490, 2011 WL 887871, at *4 (E.D.N.Y. Jan. 31,
5

2011), adopted by 2011 WL 900850 (E.D.N.Y. Mar. 14, 2011); Beal
v. Himmel & Bernstein, LLP, 615 F. Supp. 2d 214, 216 (S.D.N.Y.
2009).

Defendants argue that Plaintiff’s FDCPA claims do not

involve a “debt” and thus must be dismissed.

The Court agrees.

The statute defines “debt” as:
any obligation or alleged obligation of a
consumer to pay money arising out of a
transaction in which the money, property,
insurance, or services which are the subject
of
the
transaction
are
primarily
for
personal, family, or household purposes,
whether or not such obligation has been
reduced to judgment.
15

U.S.C.

§

1692a(5).

Although

the

FDCPA

does

not

define

“transaction,” the Second Circuit has held that “at 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)

(citation omitted).
Plaintiff’s FDCPA claims here, however, do not involve
a debt incurred as a result of services rendered or property or
goods delivered.

Rather, they arise out of Defendants’ attempt

to collect on a tort judgment.
contemplated by the FDCPA.

This is not the type of “debt”

See, e.g., Beal, 615 F. Supp. 2d at

217 (dismissing FDCPA claim arising from collection of courtordered
plaintiff

attorneys’
as

a

fees

because

consumer

to

debt

receive

6

“was
goods

not
or

incurred

by

services”);

Shmerkocvich, 2011 WL 887871, at *4 (stating that law firm’s
attempt to collect costs and expenses awarded in a personal
injury lawsuit is not subject to the FDCPA); see also Fleming v.
Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (holding that “the
obligation to pay for criminal or tortious actions does not
constitute a ‘debt’”); Hawthorne v. Mac Adjustment, Inc., 140
F.3d

1367,

1373

(11th

Cir.

1998)

(holding

that

“tort

obligation . . . does not constitute a ‘debt’ under the plain
language
Federal

of

the

Trade

Interpretation,

FDCPA

or

Commission,
Staff

any

of

the

Statements

Commentary

on

applicable
of

the

case

General

Fair

law”);

Policy

Debt

or

Collection

Practices Act, 53 Fed. Reg. 50,097, 50,102 (stating that tort
claims are excluded from the definition of “debt” under the
FDCPA).

The fact that the judgment sought to be enforced may

not have been valid does not change the fact that the underlying
transaction was not a consumer transaction.

Thus, Plaintiff’s

FDCPA claims fail as a matter of law and are hereby DISMISSED.
III. New York Consumer Protection Laws
New York law prohibits “[d]eceptive acts or practices
in the conduct of any business, trade or commerce or in the
furnishing

of

any

service

in

this

state.”

N.Y.

GEN.

BUS.

LAW § 349.

“To state a cause of action under § 349, a plaintiff

must allege (1) a deceptive consumer-oriented act or practice
which

is

misleading

in

a

material
7

respect,

and

(2)

injury

resulting from such act.”

Exxonmobile Inter-America, Inc. v.

Advanced Info. Eng’g Servs., Inc., 328 F. Supp. 2d 443, 447
(S.D.N.Y.

2004)

(emphasis

Plaintiff’s

claims

allege

“consumer-oriented”

any

Defendants.
A
Defendants’

must

added).

fail

Defendants

because

his

assert

Complaint

conduct

on

every

§ 349

the

that

does

not

of

the

part

The Court agrees.
threshold

issue

conduct

was

in

case

“consumer-oriented.”

is

whether

See

Oswego

Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A.,
85 N.Y.2d 20, 25, 647 N.E.2d 741, 744, 623 N.Y.S.2d 529, 532
(1995).

“Consumer-oriented conduct does not necessarily require

repetition or a pattern of deceptive behavior, but to state a
claim of consumer-oriented deception, a plaintiff must allege
that the disputed acts or practices have a broader impact on
consumers

at

large.”

Exxonmobile,

328

F.

Supp.

2d

at

447.

Plaintiff has failed to do that here.
“In New York law, the term ‘consumer’ is consistently
associated with an individual or natural person who purchases
goods, services or property for ‘personal, family or household
purposes.’”

Cruz v. Nynex Info. Res., 263 A.D.2d 285, 289, 703

N.Y.S.2d 103, 106 (1st Dep’t 2000) (citations omitted); see also
Genesco Entm’t, a Div. of Lymutt Indus., Inc. v. Koch, 593 F.
Supp.

743,

statute

751

involves

(“The
an

typical

violation

individual
8

consumer

contemplated
who

falls

by

victim

the
to

misrepresentations made by a seller of consumer goods.”).

As

explained above, there was no consumer transaction here--there
was no purchase or sale of goods or services.

Rather, this case

involves attempts to collect on an allegedly invalid judgment
against a tortfeasor.

This is not the type of conduct that

impacts purchasers or sellers of consumer goods at large.

Thus,

Plaintiff has failed to state a claim under § 349, and these
state law claims are also DISMISSED.
IV.

New York Judiciary Law § 470
Plaintiff

argues

in

separate

motions

that

(1)

Defendants’ motion to dismiss must be stricken and thus denied,
(2) Baldinger must be disqualified as counsel for Defendants,
and (3) Baldinger must be held in criminal contempt--all for
violating

New

York

Judiciary

Law

§

470.

For

the

following

reasons, Plaintiffs’ motions are DENIED.
Section 470 of the New York Judiciary Law provides:
A person regularly admitted to practice as
an attorney and counselor, in the courts of
record of this state, whose office for the
transaction of law business is within the
state, may practice as such attorney or
counselor,
although
he
resides
in
an
adjoining state.
Plaintiff argues that because Baldinger does not have an office
in New York, he cannot represent Defendants in this action and
all his filings must be stricken.

9

This is incorrect.

“Nearly

a

century

of

Supreme

Court

precedent

has

established that practice before federal courts is not governed
by state court rules.”

Amusement Indus., Inc. v. Midland Ave.

Assocs., LLC, No. 10-CV-5064, 2011 WL 3463117, at *6 (S.D.N.Y.
Aug. 5, 2011) (internal quotation marks and citations omitted).
“‘Admission

to

practice

law

before

a

state’s

courts

and

admission to practice before the federal courts in that state
are

separate,

independent

privileges.’”

Poole, 222 F.3d 618, 620 (9th Cir. 2000)).

Id.

(quoting

In

re

Therefore, it is the

rules of this Court, not the rules of the New York Judiciary Law
that govern this action.

Since Baldinger is admitted to the bar

in the Eastern District of New York, he may represent Defendants
in

this

matter.

As

such,

Plaintiff’s

motions

to

strike

Defendants’ motion to dismiss, to disqualify counsel and to hold
Baldinger in criminal contempt (Docket Entries 13, 15, 16, 19)
are all DENIED.

10

CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

to

dismiss (Docket Entry 5) is GRANTED, and Plaintiff’s motions
(Docket Entries 13, 15, 16, 19) are DENIED.

The Clerk of the

Court is directed to mark this matter closed and to terminate
all other pending motions as moot.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

October
24 , 2011
Central Islip, NY

11