Bird v. Pressler and Pressler, L.L.P.
MEMORANDUM & ORDER re: 13 Motion to Dismiss for Failure to State a Claim is GRANTED. However, the Court GRANTS Plaintiff leave to amend the Complaint on or before June 24, 2013. If Plaintiff does not file an amended complaint by June 24th, this case will be dismissed with prejudice and closed. Ordered by Judge Joanna Seybert on 5/28/2013. (Nohs, Bonnie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstPRESSLER AND PRESSLER, L.L.P.,
Lawrence Katz, Esq.
445 Central Avenue, Suite 201
Cedarhurst, NY 11516
Mitchell Lee Williamson, Esq.
Pressler and Pressler, L.L.P.
7 Entin Road
Parsippany, NJ 07054
SEYBERT, District Judge:
Defendant’s motion is GRANTED.
purported class action on June 15, 2012 for damages arising from
Defendant’s alleged violation of 15 U.S.C. § 1692 et seq., the
Fair Debt Collection Practices Act (“FDCPA”).
The following facts are taken from Plaintiff’s Complaint and
the documents incorporated therein by reference and are presumed
to be true for the purposes of this Memorandum and Order.
Plaintiff alleges that on February 22, 2012, Defendant
sent Plaintiff a collection letter (the “Collection Letter”),
stating that Plaintiff owed a debt in the amount of $1,189.17.
(Compl. ¶¶ 21, 23, Ex. A.)
Thereafter, Defendant commenced suit
against Plaintiff (the “State Court Action”) seeking to collect
somewhat more detailed factual account.
According to Defendant,
caption MSW Capital, L.L.C. v. Brenda Bird, Index No. CV-1261912.
(Def. Br., Docket Entry 13-1, at 1.)
Defendant pled two causes of action.
As part of that case,
(Def. Br. at 1.)
Defendant claimed that the amount due and owing was $1,189.17-the same amount asserted in the Collection Letter.
(Def. Br. at
However, in the “wherefore” clause of each claim, Defendant
requested pre-judgment interest under N.Y.C.P.L.R. 5001 in the
amount of $94.12.
(Def. Br. at 1-2.)
Plaintiff claims that such actions “constitute false
and deceptive practices and specifically violate § 1692g as well
violate § 1692e.”
(Compl. ¶ 24.)
available only after a lawsuit has been filed and, at the time
it sent the Collection Letter, there was no lawsuit pending.
before turning to the merits of Defendant’s motion.
The standard for evaluating a motion for judgment on
standard for a motion to dismiss under Rule 12(b).
v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005).
deciding Rule 12(b)(6) motions to dismiss, the Court applies a
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d
66, 71-72 (2d Cir. 2009).
First, although the Court must accept
all allegations as true, this “tenet” is “inapplicable to legal
conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at
Second, only complaints that state a “plausible claim for
relief” can survive a Rule 12(b)(6) motion to dismiss.
556 U.S. at 679.
Determining whether a complaint does so is “a
context-specific task that requires the reviewing court to draw
Harris, 572 F.3d at 72.
Furthermore, in deciding the current motion, the Court
corners of [the] complaint.”
Pani v. Empire Blue Cross Blue
heavily relies, and anything of which judicial notice may be
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53
(2d Cir. 2002) (citations omitted); Kramer v. Time Warner Inc.,
937 F.2d 767, 773 (2d Cir. 1991).
U.S.C. § 1692.
“To that end, the FDCPA mandates that when a
among other things, the amount of the debt sought.”
Zwicker & Assocs., P.C., 664 F. Supp. 2d 214, 216 (E.D.N.Y.
2009) (citing 15 U.S.C. § 1692g).
Furthermore, Section 1692e
prohibits the false representation of the “character, amount, or
legal status of any debt.”
15 U.S.C. § 1692e(2)(A).
Defendant maintains that its request for pre-judgment
interest under N.Y. C.P.L.R. 5001 was not a false or misleading
representation of the amount of the debt because the Collection
Letter “contains an accurate statement of the ‘amount of the
debt’” and a prayer for relief of pre-judgment interest in the
State Court Action does not otherwise violate the FDCPA.
In determining whether Defendant has complied with the
requirements of the FDCPA, “courts apply an objective standard,
interpret the debt collector’s notice.”
Weiss, 664 F. Supp. 2d
This standard “seeks to protect the naive from abusive
practices . . . while simultaneously shielding debt collectors
from liability for bizarre or idiosyncratic interpretations of
debt collection letters.”
Greco v. Trauner, Cohen & Thomas,
L.L.P., 412 F.3d 360, 363 (2d Cir. 2005) (internal quotation
marks and citation omitted).
Neither the Collection Letter, the
State Court Action Complaint, nor the combination thereof would
confuse or mislead even the least sophisticated consumer.
The amount owed stated in the Collection Letter was
not false because Defendant had not yet commenced any legal
reference to potential legal action or pre-judgment interest for
fear of violating the FDCPA.
See Weiss, 664 F. Supp. 2d at 217
additional charges violated 15 U.S.C. § 1692g).
interest is a request upon the Court.
See Argentieri v. Fisher
Landscapes, Inc., 15 F. Supp. 2d 55, 61 (D. Mass. 1998) (“A
prayer for relief in a complaint, even where it specifies the
quantity of attorney’s fees, is just that: a request to a third
party--the court--for consideration, not a demand to the debtor
It is not a representation of a sum certain.
Leone v. Credit Card Receivables Fund Inc., No. 09-CV-21612,
fees is what the plaintiff would like the court to conclude is
reasonable); see also Scioli v. Goldman & Warshaw P.C., 651 F.
Supp. 2d 273, 280 (D.N.J. 2009) (“[E]ven the least sophisticated
debtor could not reasonably believe that he owed . . . Statutory
Attorney’s Fee[s] . . . . An unsophisticated debtor is presumed
to have read the summons and complaint, and after reading those
documents, he could only conclude that Goldman had initiated a
lawsuit seeking the amounts itemized on the summons.” (emphasis
In opposition, Plaintiff argues that the interest rate
as provided in the credit card agreement governs, and therefore
Theoretically, an attempt to collect an amount to which the debt
collector is not legally entitled may potentially violate the
See Scioli, 651 F. Supp. 2d at 276 (“If recovery of both
then Goldman apparently does not dispute that seeking to recover
both is a ‘false representation of . . . compensation which may
be lawfully received by any debt collector for the collection of
a debt . . .” (quoting 15 U.S.C. § 1692e(2)(B))).
However, the Complaint, as currently drafted, does not
state a claim in this regard as there are no factual allegations
about a credit card agreement at all or any reference to N.Y.
Nowhere in the Complaint does Plaintiff specify
the underlying source of the debt, the terms of any credit card
such an agreement.
Nor does the Complaint in any way allude to
a claim that Defendant misrepresented the amount to which it is
Rather, the claim is that Defendant seeks an
amount in the State Court Action greater than the amount stated
in the Collection Letter.
(Compl. ¶ 23.)
Accordingly, the Complaint does not state a claim upon
which relief can be granted and Defendant’s motion for judgment
on the pleadings is GRANTED.
Defendant’s motion for judgment on the pleadings is
However, the Second Circuit has stated that “the court
should not dismiss without granting leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated.”
Cuoco v. Mortisugu, 222
citation omitted); see also FED. R. CIV. P. 15(a)(2) (“The court
should freely give leave [to amend] when justice so requires.”).
Thus, and although Plaintiff has not specifically sought leave
to amend the Complaint, the Court grants Plaintiff leave to do
If Plaintiff choses, she must file an amended complaint on
or before June 24, 2013.
If Plaintiff does not file an amended complaint by
June 24, 2013, this case will be dismissed with prejudice and
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
29 , 2013
Central Islip, NY
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