Morant v. Miracle Financial, Inc.
MEMORANDUM & ORDER granting in part and denying in part 4 Motion for Judgment on the Pleadings; granting in part and denying in part 5 Motion to Amend/Correct/Supplement. For the foregoing reasons, it is hereby ORDERED that: (1) Defendant 039;s motion to dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiff's claims arising under Section 1692b are hereby DISMISSED WITH PREJUDICE; and (2) Plaintiff's motion to amend her Complaint is GRANTED IN PART and DENIED IN PART: Plaintiff is GRANTED leave to amend her claims under Section 1692d only. The Clerk of the Court is directed to docket the proposed Amended Complaint at Docket Entry 5-2 as a separate docket entry entitled "Amended Complaint." So Ordered by Judge Joanna Seybert on 9/17/12. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstMIRACLE FINANCIAL, INC.,
Joseph Mauro, Esq.
The Law Office of Joseph Mauro, LLC
306 McCall Avenue
West Islip, NY 11795
Gregory J. Gallo, Esq.
Pellegrino Law Firm
475 Whitney Avenue
New Haven, CT 06511
SEYBERT, District Judge:
Plaintiff Margaret Morant (“Plaintiff”) commenced this
action against Defendant Miracle Financial, Inc. (“Defendant” or
Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”).
following reasons, both motions are GRANTED IN PART and DENIED
Miracle began calling her residence in an attempt to collect an
alleged debt from a person named Theresa Brown.
(Compl. ¶ 14.)
(Compl. ¶ 10.)
She informed him or
her that Miracle had the wrong number and demanded that Miracle
stop calling her.
(Compl. ¶¶ 15-16.)
(Compl. ¶¶ 17-18.)
On August 25, 2011, Plaintiff commenced this action
asserting violations of four provisions of the FDCPA--Sections
1692d, 1692d(5), 1692b(1), and 1692b(3).
(Docket Entry 1.)
October 11, 2011, Defendant answered the Complaint (Docket Entry
3), and on November 9, 2011, Defendant moved to dismiss pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure (Docket
On November 19, 2011, Plaintiff filed a motion to
amend her Complaint.
(Docket Entry 5.)
Plaintiff does not
assert any new claims in her proposed Amended Complaint; rather,
she amplifies the facts as stated in her original Complaint.
November 22, 2011, Plaintiff filed her opposition to Defendant’s
motion to dismiss.
(Docket Entry 6.)
Defendant has neither
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
further in support of its motion to dismiss.
The Court will address Defendant’s motion to dismiss
before turning to the merits of Plaintiff’s motion to amend.
Motion to Dismiss
Standard of Review under Rule 12(c)
The standard for deciding a motion pursuant to Rule
failure to state a claim.”
Patel v. Contemporary Classics of
complaint to “state a claim [for] relief that is plausible on
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
A complaint does not
need “detailed factual allegations,” but it demands “more than
elements of a cause of action will not do.”
Id. at 555.
addition, the facts pled in the complaint “must be enough to
context-specific task that requires the reviewing court to draw
Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (citation omitted); accord Harris v. Mills, 572 F.3d 66,
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
Alleged FDCPA Violations
collection practices by debt collectors, [and] to insure that
collection practices are not competitively disadvantaged.”
U.S.C. § 1692(e).
Plaintiff, in both her Complaint and proposed
1692d, 1692d(5), 1692b(1), and 1692b(3) of the FDCPA.
will address the claims asserted under Sections 1692d and 1692b
Claims under Section 1692d
Plaintiff asserts two claims under Section 1692d:
for a violation of subsection (5) and one under the section
A debt collector may not engage in any
conduct the natural consequence of which is
to harass, oppress, or abuse any person in
connection with the collection of a debt.
Without limiting the general application of
the foregoing, the following conduct is a
violation of this section:
Causing a telephone to ring or engaging
any person in telephone conversation
repeatedly or continuously with intent
to annoy, abuse, or harass any person
at the called number.
Defendant makes three arguments in support of dismissal of these
First, Defendant appears to be arguing that there is
no cause of action for a violation of Section 1692d generally
and that, to state a claim, Plaintiff must allege a violation of
a specific subsection.
The Court disagrees.
“[T]he list of
specified violations is explicitly not exhaustive; it is not
intended to ‘limit the general application’ of the provision's
which is to harass, oppress, or abuse any person in connection
L.L.C., No. 08-CV-5293, 2009 WL 1606420, at *5 (E.D.N.Y. June 9,
Second, Defendant argues that the Complaint fails to
state a claim under Section 1692d(5) because there is nothing in
the Complaint to suggest that the calls were made “repeatedly or
continuously with intent to annoy, abuse, or harass” Plaintiff.
(Def. Mot. 7.)
The Court disagrees.
Plaintiff asserts that
Miracle called her “several times,” that each time she informed
number, and that Miracle nonetheless called Plaintiff “several”
more times thereafter.
(Compl. ¶¶ 11-13, 15-18.)
See, e.g., Shand-Pistilli v. Prof’l Account Servs.,
Inc., No. 10-CV-1808, 2010 WL 2978029, at *4 (E.D. Pa. July 26,
“continuous calls” to the plaintiff’s home after the plaintiff
asked the defendant to stop calling stated a plausible claim for
relief under Section 1692d(5)); Stuart v. AR Res., Inc., No. 10CV-3520, 2011 WL 904167, at *3 (E.D. Pa. Mar. 16, 2011) (finding
profane language, and refusal to cease calling” stated a claim
(W.D.N.Y. Mar. 31, 2011) (“Courts have held that the question
whether a debt collector’s conduct in attempting to contact a
regarding volume, frequency, pattern, or substance of the phone
Finally, Defendant argues that Plaintiff does not have
standing to bring these claims.
The Court disagrees.
1692k, the general enforcement provision of the FDCPA, provides
that “[e]xcept as otherwise provided by this section, any debt
person . . . .”
15 U.S.C. § 1692k(a) (emphasis added).
have interpreted this language broadly to allow “[a]ny person
who comes in contact with proscribed debt collection practices”
to bring a claim.
Riveria v. MAB Collections, Inc., 682 F.
Whatley v. Universal Collection Bureau, Inc., 525 F. Supp. 1204,
1206 (N.D. Ga. 1981) (holding that “‘any person,’ as used in 15
persons . . . who
harmed by proscribed debt collection practices directed to the
Assistance Corp., 559 F. Supp. 2d 1117, 1123 (D. Nev. 2008)
practices by debt collectors are covered by the FDCPA.”).
dismiss Plaintiff’s claims under Sections 1692d and 1692d(5).
Claims under Section 1692b
Section 1692b provides in relevant part as follows:
Any debt collector communicating with any
person other than the consumer for the
purpose of acquiring location information
about the consumer shall-(1)
identify himself, state that he is
information concerning the consumer,
identify his employer; [and]
not communicate with any such person
more than once unless requested to do
so by such person or unless the debt
collector reasonably believes that the
earlier response of such person is
erroneous or incomplete and that such
person now has correct or complete
location information . . . .
Defendant argues that Plaintiff’s claims under this
section must be dismissed because (i) Plaintiff does not have
telephoned her residence “for the purpose of acquiring location
information” about the debtor.
Because the Court finds that
Plaintiff does not have standing to assert these claims, it will
not address the merit of Defendant’s other argument.
Section 1692b contains a list of exceptions to Section 1692c(b),
connection with the collection of a debt, with anyone other than
15 U.S.C. § 1692c(b).
Therefore, the Court will analyze Plaintiff’s claims as
if they were properly brought under Section 1692c(b).
Although generally “any person” may bring a claim for
a violation of the FDCPA, see supra page 7, courts have held
that only a “consumer” has standing to bring a claim for relief
under Section 1692c.
See Bank, 2009 WL 1606420, at *4 (“Non-
Montgomery v. Huntington Bank, 346 F.3d 693, 696–97 (6th Cir.
2003) (“Only a ‘consumer’ has standing to sue for violations
under 15 U.S.C. § 1692c.” (internal quotation marks and citation
omitted)); Mathis v. Omnium Worldwide, No. 04-CV-1614, 2006 WL
obligated or allegedly obligated to pay a debt.”
15 U.S.C. §
Here, Plaintiff does not assert that she was the
alleged debtor, and, accordingly, she does not having standing
to bring these claims.
Therefore, the Court grants Defendant’s
motion to dismiss these claims.
Motion to Amend
Amendments to pleadings are governed by Rule 15 of the
Federal Rules of Civil Procedure, which provides that the Court
should grant leave to amend “when justice so requires.”
CIV. P. 15(a)(2).
Leave to amend should be granted unless there
is evidence of undue delay, bad faith, undue prejudice to the
non-movant, or futility.
See Milanese v. Rust–Oleum Corp., 244
F.3d 104, 110 (2d Cir. 2001).
To determine whether an amended
claim is futile, courts analyze whether the proposed pleading
See Dougherty v. Town of N. Hempstead Bd. of
Zoning Appeal, 282 F.3d 83, 88 (2d Cir. 2002).
Here, Plaintiff’s Amended Complaint is substantially
similar to her original Complaint.
It asserts violations of 15
U.S.C. §§ 1692d, 1692d(5), 1692b(1), 1692b(3) arising out of
Miracle’s calling Plaintiff in an attempt to collect an alleged
debt from Theresa Brown.
Accordingly, the Court finds that the
proposed amendments with respect to the claims under Section
1692b are futile, and, to the extent that Plaintiff seeks leave
proposed amendments to the claims under Section 1692d, on the
other hand, are not futile for the reasons discussed above.
For the foregoing reasons, it is hereby ORDERED that:
Defendant's motion to dismiss is GRANTED IN PART
and DENIED IN PART, and Plaintiff’s claims arising under Section
1692b are hereby DISMISSED WITH PREJUDICE; and
GRANTED IN PART and DENIED IN PART:
Plaintiff is GRANTED leave
to amend her claims under Section 1692d only.
proposed Amended Complaint at Docket Entry 5-2 as a separate
docket entry entitled “Amended Complaint.”
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
September 17, 2012
Central Islip, New York
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