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)

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