Bird v. Pressler and Pressler, L.L.P.

Filing 16

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)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X BRENDA BIRD, Plaintiff, MEMORANDUM & ORDER 12-CV-3007(JS)(ETB) -againstPRESSLER AND PRESSLER, L.L.P., Defendant. -----------------------------------X APPEARANCES For Plaintiff: Lawrence Katz, Esq. 445 Central Avenue, Suite 201 Cedarhurst, NY 11516 For Defendant: Mitchell Lee Williamson, Esq. Pressler and Pressler, L.L.P. 7 Entin Road Parsippany, NJ 07054 SEYBERT, District Judge: Currently Pressler and judgment on pending Pressler, the before L.L.P.’s pleadings. For the Court is (“Defendant”) the Defendant motion following for reasons, Defendant’s motion is GRANTED. BACKGROUND1 Plaintiff Brenda Bird (“Plaintiff”) commenced this 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”). 1 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 an amount greater than that stated in the letter. (Compl. ¶ 23.) Plaintiff apparently does not somewhat more detailed factual account. it filed the State Court Action in dispute Defendant’s According to Defendant, Nassau County under the 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.) In both, Defendant claimed that the amount due and owing was $1,189.17-the same amount asserted in the Collection Letter. 1.) (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 as constitute false violate § 1692e.” and deceptive (Compl. ¶ 24.) 2 practices and therefore DISCUSSION Defendant essentially practices now arguing because moves that it for judgment did pre-judgment not interest on the pleadings, in deceptive engage is a type of relief available only after a lawsuit has been filed and, at the time it sent the Collection Letter, there was no lawsuit pending. The Court will first address the applicable legal standard before turning to the merits of Defendant’s motion. I. Legal Standard The standard for evaluating a motion for judgment on the pleadings, pursuant to Rule 12(c), is the standard for a motion to dismiss under Rule 12(b). same as the See Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005). In deciding Rule 12(b)(6) motions to dismiss, the Court applies a “plausibility standard,” which is guided by “[t]wo working principles.” 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 suffice.” 72. 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. 3 Iqbal, 556 U.S. at 679. 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.” Id.; accord Harris, 572 F.3d at 72. Furthermore, in deciding the current motion, the Court is confined to “the allegations corners of [the] complaint.” Shield, 152 interpreted Complaint, Complaint F.3d 67, broadly any by to 71 reference, (2d the four Cir. or any within Pani v. Empire Blue Cross Blue 1998). This any include statements contained document attached to the incorporated in the documents document on which the has been Complaint heavily relies, and anything of which judicial notice may be taken. 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). II. Defendant’s Motion The abusive debt stated purpose collection of the practices by FDCPA debt is “to eliminate collectors.” 15 U.S.C. § 1692. “To that end, the FDCPA mandates that when a debt solicits collector collector must provide payment a written from a consumer, validation notice among other things, the amount of the debt sought.” the debt stating, Weiss v. Zwicker & Assocs., P.C., 664 F. Supp. 2d 214, 216 (E.D.N.Y. 2009) (citing 15 U.S.C. § 1692g). 4 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. The Court agrees. In determining whether Defendant has complied with the requirements of the FDCPA, “courts apply an objective standard, measured by how the ‘least sophisticated interpret the debt collector’s notice.” at 216. consumer’ would 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 action. In fact, Defendant presumably 5 did not include any reference to potential legal action or pre-judgment interest for fear of violating the FDCPA. (collection letter which See Weiss, 664 F. Supp. 2d at 217 stated that balance may include additional charges violated 15 U.S.C. § 1692g). Moreover, the prayer for interest is a request upon the Court. relief of pre-judgment 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 himself.”). It is not a representation of a sum certain. See Leone v. Credit Card Receivables Fund Inc., No. 09-CV-21612, 2009 WL 8477347, sophisticated at debtor *4 would (S.D. Fla. understand Nov. 6, request 2009) for (least attorneys’ 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 original)). 6 In opposition, Plaintiff argues that the interest rate as provided in the credit card agreement governs, and therefore Defendant C.P.L.R. erroneously 5001. (Pl. seeks Opp. pre-judgment interest Br., Entry Docket under 14, at N.Y. 2-3.) Theoretically, an attempt to collect an amount to which the debt collector is not legally entitled may potentially violate the FDCPA. See Scioli, 651 F. Supp. 2d at 276 (“If recovery of both [contractual and statutory attorneys fees] is not permitted, 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. C.P.L.R. 5001. Nowhere in the Complaint does Plaintiff specify the underlying source of the debt, the terms of any credit card agreement, or the such an agreement. interest rate purportedly applicable under Nor does the Complaint in any way allude to a claim that Defendant misrepresented the amount to which it is lawfully entitled. 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.) 7 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. CONCLUSION Defendant’s motion for judgment on the pleadings is GRANTED. 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.” F.3d 99, 112 (2d Cir. 2000) Cuoco v. Mortisugu, 222 (internal quotation marks and 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 so. 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 closed. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: May 29 , 2013 Central Islip, NY 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?