Datiz v. International Recovery Associates, Inc.

Filing 97

ORDER ADOPTING REPORT AND RECOMMENDATIONS/Memorandum of Decision & Order: For the foregoing reasons, the Court adopts the R&R in the entirety and denies the objections. The Court DENIES the Defendants motion for summary judgment 67 and GRANTS the P laintiffs motion for summary judgment 68 , in accordance with the R&R. Pursuant to 15 U.S.C. § 1692k, the Court awards the Plaintiff $1,000 in statutory damages. The Plaintiffs counsel is directed to move for attorneys fees and/or costs no later than 30 days from the entry of this Order. Ordered by Judge Arthur D. Spatt on 9/24/2018. (Cubano, Jazmin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
LISA DATIZ,
Plaintiff,

MEMORANDUM OF
DECISION & ORDER
2:15-cv-03549 (ADS)(AKT)

-againstINTERNATIONAL RECOVERY
ASSOCIATES, INC.
Defendant.
---------------------------------------------------------X
APPEARANCES:

FILED 
CLERK 

9/24/2018 11:56 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Sanders Law, PLLC
Counsel for the Plaintiff
100 Garden City Plaza, Suite 500
Garden City, NY 11530
By:
Craig B. Sanders, Esq.
David M. Barshay, Esq., Of Counsel.
Robert L. Arleo, Esq., Of Counsel.
Counsel for the Defendant
380 Lexington Avenue 17th Floor
New York, NY 10168
SPATT, District Judge:
Plaintiff Lisa Datiz (the “Plaintiff”) brings the instant action alleging violations of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). Specifically, the Plaintiff
asserts a violation of Section 1692g(a)(2) based on a collection letter’s failure to adequately
identify the name of the creditor to whom the Plaintiff owed a debt, and a violation of Section
1692e based on the collection letter’s failure to clearly and accurately identify the creditor to whom
Plaintiff’s debt is owed.

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Between September 12, 2017 and October 26, 2017, the parties filed their respective
motions for summary judgment. See ECF 67–75.
On March 28, 2018, the Court referred the parties’ cross-motions for summary judgment
to United States Magistrate Judge A. Kathleen Tomlinson for a Report and Recommendation as to
whether the motions should be granted. ECF 79.
On July 27, 2018, Judge Tomlinson issued a Report and Recommendation (“R&R”)
recommending that the Defendant’s motion for summary judgment be denied and that the
Plaintiff’s motion for summary judgment be granted. ECF 93.
On August 10, 2018, the Defendant served objections to the R&R, ECF 95, which the
Plaintiff replied to on August 14, 2018, ECF 95.
For the foregoing reasons, the Court denies the objections, and adopts the R&R in its
entirety.
I. DISCUSSION
A. THE STANDARD OF REVIEW
In the course of its review of a magistrate judge’s report and recommendation, the district
court “may accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636 (b)(1); see DeLuca v. Lord, 858 F.Supp. 1330, 1345
(S.D.N.Y. 1994). Parties may raise objections to the magistrate judge’s report and
recommendation, but they must be “specific,” “written,” and submitted “[w]ithin 14 days after
being served with a copy of the recommended disposition.” FED. R. CIV. P. 72(b)(2); accord 28
U.S.C. § 636(b)(1)(C). The district court must conduct a de novo review of those portions of the
R&R or specified proposed findings or recommendations to which timely and proper objections
are made. 28 U.S.C. § 636(b)(1)(C); see FED. R. CIV. P. 72(b)(3) (“The district judge may accept,
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reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.”). The Court may adopt those portions of a report and
recommendation to which no timely objections have been made, provided no clear error is apparent
from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y. 2008); Nelson v.
Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985).
In addition, “[t]o the extent ... that the party makes only conclusory or general arguments,
or simply reiterates the original arguments, the Court will review the [R&R] strictly for clear
error.” IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07–Civ.–6865, 2008 WL
4810043, at *1 (S.D.N.Y. Nov. 3, 2008); see also Toth v. N.Y. City Dep't of Educ., No. 14CV3776,
2017 WL 78483, at *7 (E.D.N.Y. Jan. 9, 2017) (“Reviewing courts should review a report and
recommendation for clear error where objections are merely perfunctory responses, argued in an
attempt to engage the district court in a rehashing of the same arguments set forth in the original
petition.” (quoting Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008))), vacated on other
grounds sub nom. Toth on behalf of T.T. v. City of New York Dep't of Educ., ––– Fed.Appx. ––––
, No. 17-383-cv, 2018 WL 258793 (2d Cir. Jan. 2, 2018); Frankel v. City of N.Y., Nos. 06-Civ.5450, 07-Civ.-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009) (“When a party makes only
conclusory or general objections, or simply reiterates the original arguments, the Court will review
the [R&R] strictly for clear error.”); Pall Corp. v. Entergris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.
2008) (holding that if the objecting party “makes only conclusory or general objections, ... the
Court reviews the [R&R] only for clear error” (internal citations omitted)).
“The goal of the federal statute providing for the assignment of cases to magistrates is to
increase the overall efficiency of the federal judiciary.” McCarthy v. Manson, 554 F.Supp. 1275,
1286 (D. Conn. 1982) (internal citations omitted), aff'd, 714 F.2d 234 (2d Cir. 1983). “There is no
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increase in efficiency, and much extra work, when a party attempts to relitigate every argument
which it presented to the Magistrate Judge.” Toth, 2017 WL 78483, at *7 (quoting Camardo v.
Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992)).
B. APPLICATION TO THE FACTS
1. As to Whether the Plaintiff Stipulated to Proceed to Trial by Jury
The Defendant argues that representations by Plaintiff’s counsel at an August 23, 2016
discovery conference precluded Judge Tomlinson from finding that the “least sophisticated
consumer” standard should be applied as a matter of law. ECF 95 at 1–2. Specifically, the
Defendant argues that Judge Tomlinson failed to consider the “manifest injustice” resulting from
this finding, apparently due to the fact the Plaintiff’s counsel stated at the conference that the
Plaintiff would proceed to allow a jury to determine whether or not the Defendant’s collection
letter violates the FDCPA by failing to set forth the name of the creditor. Id. The Defendant makes
the conclusory assertion that this fact renders the “lawsuit beyond unique and required a proper
consideration thereof in order to avoid a manifest injustice to the Defendant.” Id. at 2.
This is not a proper objection to the R&R. The Defendant cites no law, and provides no
explanation, illuminating why consideration of the representations by Plaintiff’s counsel would
have resulted in a different outcome on this discrete issue. See IndyMac Bank, F.S.B., 2008 WL
4810043, at *1 (explaining that clear error review applies when objecting party “makes only
conclusory or general arguments”).
Rather, the Defendant is essentially attempting a collateral attack on Judge Tomlinson’s
ruling denying the Defendant’s May 3, 2017 motion to compel the Plaintiff to forego summary
judgment papers in favor of a jury trial. See ECF 95 at 2 (“These representations are made
notwithstanding the fact that Magistrate Judge Tomlinson previously denied the Defendant’s
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motion to compel the Plaintiff to proceed to a trial by jury (Dkt No. 60). Defendant strongly
disagrees with this holding yet nothing in the ruling eradicated Mr. Barshay’s statements made at
the August 23, 2016 discovery conference.”).
The Defendant, however, waived any such objection. Rule 72(a) requires parties to object
to a magistrate judge’s decision on a non-dispositive matter within fourteen days, subject to the
waiver of those objections upon review by the district court. See Caidor v. Onondaga Cty., 517
F.3d 601, 604 (2d Cir. 2008); Thai Lao Lignite (Thailand) Co. v. Gov’t of Lao People’s Democratic
Republic, 924 F. Supp. 2d 508, 517 (S.D.N.Y. 2013). Here, the limitations period for objecting to
Judge Tomlinson’s order on the motion to compel expired well before the parties moved for
summary judgment, and the Defendant cannot convert its disagreement into its objections to the
R&R.
Therefore, the Court finds that Judge Tomlinson did not commit a clear error by failing to
take into account the representations by the Plaintiff’s counsel at the August 23, 2016 discovery
conference.
2. As to Whether the Least Sophisticated Consumer Standard Is a Question of Fact
or Law
The Defendant asserts that Judge Tomlinson failed to consider record evidence when
applying the least sophisticated consumer standard. Specifically, the Defendant objects to Judge
Tomlinson’s determination that the least sophisticated consumer standard is a matter of law to be
decided by the Court, apparently contrary to Dewees v. Legal Servicing, LLC, 506 F. Supp. 2d 128
(E.D.N.Y. 2007) and Beeman v. Lacy, Katzen, Ryen & Mittleman, 892 F. Supp. 405 (N.D.N.Y.
1995). The Defendant does not argue that Judge Tomlinson ignored or overlooked such authority,
but rather takes issue with her disagreement with these cases in light of “general trend in this
Circuit treating the application of the least sophisticated consumer standard as a matter of law for
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the court.” ECF 95 at 3. This objection is subject to clear error review, because it is an explicit
attempt to re-litigate arguments considered and rejected by Judge Tomlinson.
Having reviewed the authority cited in the R&R, the Court finds that Judge Tomlinson did
not commit clear error by finding that “[b]ased on the observable trend in the case law of this
Circuit, this Court is satisfied that the parties’ cross-motions for summary judgment present only
questions of law, and are therefore amenable to disposition on summary judgment.” R&R at 17;
see also Schweizer v. Trans Union Corp., 136 F.3d 233, 237-38 (2d Cir. 1998) (“[C]ourts have
increasingly treated as questions of ‘law,’ various judgments about the way in which the ‘least
sophisticated consumer’ would interpret particular debt collection claims”); Vega v. Credit Bureau
Enterprises, No. 02-CV-1550, 2005 WL 711657, at *9 (E.D.N.Y. Mar. 29, 2005) (“[H]ow the least
sophisticated consumer would interpret the defendant’s form debt collection letter can be
determined without the aid of expert testimony at trial.”); Nicholson v. Forster & Garbus LLP,
No. 11-CV-524, 2013 WL 2237554, at *3 n.6 (E.D.N.Y. May 17, 2013) (“The Court rejects
plaintiff's argument that it must allow a jury to determine whether defendants' conduct was
misleading. . . . Whether a communication by a debt collector is misleading to the least
sophisticated consumer is an objective question that may be determined by the Court as a matter
of law.”).
3. As to Whether the Least Sophisticated Consumer Standard is Objective or
Subjective
The Defendant objects to Judge Tomlinson’s refusal to take into account the subjective
circumstances of the particular debtor in question when applying the least sophisticated consumer
standard. Specifically, the Defendant argues that Judge Tomlinson improperly failed to abide by
the Second Circuit’s ruling in DiMatteo v. Sweeny, Gallo, Reich & Bolz, L.L.P., 619 Fed. Appx. 7
(2d Cir. 2015). However, the Defendant concedes that this objection is an argument already made
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before Judge Tomlinson. See ECF 95 at 4 (“The Defendant made the argument that the least
sophisticated consumer standard should be limited to the least sophisticated consumer who
received medical services from John T. Mather Hospital.”). Judge Tomlinson addressed DiMatteo
in the R&R, and found that it did not weigh in on the present dispute. See R&R at 22 n.11.
Therefore, the Defendant’s contention that Judge Tomlinson should have applied the least
sophisticated consumer standard in a subjective, fact-specific way is subject to clear error review.
The Court finds that Judge Tomlinson did not commit clear error by declining to “apply
the least sophisticate[d] consumer standard in a novel manner -- subjectively, as Defendant appears
to request -- simply because the record contains an expert report and expert testimony.” Id. at 21;
see also Easterling v. Collecto, Inc., 692 F.3d 229, 234 (2d Cir. 2012) (“By its very nature . . . the
least sophisticated consumer test pays no attention to the circumstances of the particular debtor in
question, and it was error for the district court to rely on such circumstances here.”); Berger v.
Suburban Credit Corp., No. 04 CV 4006, 2006 WL 2570915, at *3 (E.D.N.Y. Sept. 5, 2006)
(“[T]he determination of how the least sophisticated consumer would view language in a
defendant’s collection letter is a question of law because the standard is an objective one.” (citing
Schweizer, 136 F.3d at 237-38)); Vega, 2005 WL 711657, at *9 (E.D.N.Y. Mar. 29, 2005) (“[H]ow
the least sophisticated consumer would interpret the defendant’s form debt collection letter can be
determined without the aid of expert testimony at trial.”).
4. As to the Defendant’s Remaining Objections
For the reasons described above, the Court also finds that Judge Tomlinson did not commit
clear error with regards to the Defendant’s objections that “Magistrate Judge Tomlinson was
incorrect in citing those cases set forth under the heading ‘C’ in the R&R entitled ‘Recent FDCPA
decisions (sic.) [because] none of those decisions contained an expert report which favored the
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Defendant” and that Judge Tomlinson failed to “meaningfully analyze the Defendant’s arguments
regarding the expert report and testimony.” Id. at 5–6.
To the contrary, Judge Tomlinson resolved these arguments by determining that the least
sophisticated consumer standard was (1) a matter of law to-be-decided by the Court and (2) not
subject to modification based on subjective factors specific to the Plaintiff. Further, Judge
Tomlinson explained: “even were the Court to consider the expert report and deposition testimony
of Dr. Perlman, none of that information mandates the denial of both motions -- let alone an award
of summary judgment for Defendant -- as Defendant argues.” R&R at 18.
Therefore, the Court finds that these objections are subject to clear error review, and finds
no clear error in Judge Tomlinson’s decision, as they are simply revised versions of the arguments
already addressed. See White v. Prof'l Claims Bureau, Inc., 284 F. Supp. 3d 351, 360 (E.D.N.Y.
2018) (finding for the plaintiff on summary judgment where the defendant’s collection letter
contained only a single reference to the creditor-medical institution, at the top right-hand corner
of the letter, following “Re:”, and, despite referencing the institution as the defendant’s “client,”
failed to explicitly identify who owned the plaintiff’s debt); McGinty v. Professional Claims
Bureau, Inc., 2:15-CV-4356 (SJF) (ARL), slip op. at 16 (E.D.N.Y. Jan. 2, 2018) (finding that, in
the absence of an explicit reference to a “creditor,” and without more than one reference to the
creditor entity or any other information identifying the relationship between the creditor and the
debt collector, letters “fail[ed] to implicitly or explicitly identify the creditor to whom the subject
debts are owed clearly enough that the least sophisticated consumer would be likely to
understand”); Diaz v. Professional Claims Bureau, Inc., 2:16-CV-2184 (ADS) (SIL), slip op. at
14 (E.D.N.Y. Nov. 27, 2017) (ruling on summary judgment that a collection letter containing only
a single reference to the plaintiff’s creditor, “on the subject line on the top right corner of the page,
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which reads, ‘Re: NSLIJ HEALTH SYS-SOUTHSIDE’ and an opaque reference to [the
defendant’s] ‘client,’” violated Section 1692g(a)(2)).
II. CONCLUSION
For the foregoing reasons, the Court adopts the R&R in the entirety and denies the
objections. The Court DENIES the Defendant’s motion for summary judgment and GRANTS the
Plaintiff’s motion for summary judgment, in accordance with the R&R. Pursuant to 15 U.S.C. §
1692k, the Court awards the Plaintiff $1,000 in statutory damages. The Plaintiff’s counsel is
directed to move for attorney’s fees and/or costs no later than 30 days from the entry of this Order.

SO ORDERED.
Dated: Central Islip, New York
September 24, 2018
__/s/ Arthur D. Spatt____
ARTHUR D. SPATT
United States District Judge

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