Isaac et al v. NRA Group, LLC et al
Filing
94
ORDER granting 79 Motion for Summary Judgment. For the foregoing reasons, and for the reasons set forth in the Courts March 28, 2018 Memorandum and Order, the Court grants defendants motion for summary judgment as to Count I. In addition, the Court grants plaintiffs request to dismiss Count II. The Clerk of the Court shall enter judgment accordingly and close the case. Ordered by Judge Joseph F. Bianco on 3/29/2019. (Allen, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-5210 (JFB) (SIL)
_____________________
ALDEAN ISAAC AND JULISSA ORTIZ,
Plaintiffs,
VERSUS
NRA GROUP, LLC D/B/A NATIONAL RECOVERY AGENCY AND STEVEN C. KUSIC,
Defendants.
___________________
MEMORANDUM AND ORDER
March 29, 2019
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiffs Aldean Isaac (“Isaac”) and
Julissa Ortiz (“Ortiz” and, together with
Isaac, “plaintiffs”) bring this putative class
action against NRA Group, LLC (“NRA”)
and NRA’s chief executive officer, Steven C.
Kusic (“Kusic” and, together with NRA,
“defendants”), for alleged violations of the
Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et. seq.
Plaintiffs assert one cause of action (“Count
I”) against both NRA and Kusic, alleging that
debt collection letters sent by NRA to
plaintiffs in September 2015 misrepresented
the amount of debt that plaintiffs owed in
violation of FDCPA Sections 1692g and
1692e. The second cause of action (“Count
II”) alleges that both defendants violated
Sections 1692e and 1692f of the FDCPA
because the September 2015 letters falsely
implied that NRA had the legal right to
collect interest and fees from plaintiffs.
In a Memorandum and Order, dated
March 28, 2018 (ECF No. 69), the Court
denied plaintiffs’ motion for partial summary
judgment on the first cause of action as
against NRA. In particular, the Court held
that “[e]ven the least sophisticated consumer
– who is presumed to possess a rudimentary
amount of information about the world and a
willingness to read a collection notice with
some care – would not be misled by the
September 2015 letters.” (Id. at 5.)
Presently before the Court is defendants’
motion for summary judgment. In response
to the defendants’ summary judgment
motion, plaintiffs request that the second
cause of action be voluntarily dismissed, and
the Court grants that request. With respect to
the first cause of action, defendants argue that
the Court’s ruling in the March 28, 2018
Memorandum and Order – that is, that the
September 2015 Letters do not violate
Section 1692e or Section 1962g – warrants
summary judgment in their favor. The Court
agrees. Without repeating its analysis here,
the Court incorporates its entire analysis from
the March 28, 2018 Memorandum and Order
and, for the reasons set forth in that opinion,
concludes that the defendants are entitled to
summary judgment on the only remaining
cause of action because the September 2015
Letters did not violate Section 1692e or
Section 1692g as a matter of law. 1
Defendants also argued, in the alternative,
that Kusic is not a debt collector within the
meaning of the FDCPA. For the reasons that
follow, the Court holds in the alternative that
the uncontroverted evidence supports the
conclusion that Kusic does not have
individual liability under the FDCPA in this
case.
is undisputed, or plaintiffs have pointed to no
evidence in the record to contradict it. 2
Kusic is the CEO of NRA, with a primary
focus in marketing and vendor relations.
(Def.’ 56.1 ¶¶ 32-33.) As CEO, Kusic does
not participate in the collection of debt from
consumers (e.g., creating, reviewing,
approving, or signing letters sent to
consumers). (Id. ¶ 33.)
Kusic had no contact with, nor was he
personally involved in the collection of
plaintiffs’ debts and he was not identified in
the August and September collection letters
as a party attempting to collect plaintiffs’
debts. (Id. ¶¶ 34-35.) In accordance with his
general practice as CEO, Kusic did not
create, review, approve, or sign these
collection letters. (Id. ¶ 36.) Additionally,
both plaintiffs were unaware as to who Kusic
was or why he was named as a defendant. (Id.
¶ 37.)
I. BACKGROUND
A. Facts
The Court set forth the background facts
of this case in its March 28, 2018 Order
denying plaintiffs’ motion for partial
summary judgment on the first cause of
action against NRA, Isaac v. NRA Grp.,
LLC, No. 16CV5210JFBSIL, 2018 WL
1532061 (E.D.N.Y. Mar. 28, 2018), and does
not repeat them here. However, the Court
does take the following relevant facts from
defendants’ Rule 56.1 Statement of Fact,
affidavits, and exhibits, and construes the
facts in the light most favorable to plaintiffs,
as the nonmoving party. See Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d Cir.
2005). Unless otherwise indicated, where
defendants’ 56.1 statement is cited, that fact
B. Procedural History
Plaintiff does not dispute that the Court’s March 28,
2018 Memorandum and Order supports summary
judgment for defendants on Count I and, in fact,
requested that the Court enter final judgment for
defendants on that cause of action in order to allow
plaintiffs to appeal.
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In addition, although defendants’ Rule 56.1
statements contain specific citations to the record to
support their statements, the Court has cited to the
Rule 56.1 statements, rather than the underlying
citation to the record. The Court additionally notes
that plaintiffs did not submit their own 56.1 Statement
of Facts and, in any event, have not cited in their
opposition papers to any evidence contradicting the
evidence contained in defendants’ 56.1 statement.
Plaintiffs filed the complaint on
September 19, 2016.
(ECF No. 1.)
Defendants answered on November 17, 2016.
(ECF No. 8.) Plaintiffs moved for summary
judgment as to liability on the first cause of
action against NRA on July 28, 2017. (ECF
No. 41.) Defendants opposed the motion on
August 31, 2017. (ECF No. 49.) Plaintiffs
replied on September 15, 2017. (ECF No.
50.) The Court heard oral argument on
October 20, 2017. At the conclusion of that
argument, the Court held the motion in
abeyance under Federal Rule of Civil
Procedure 56 pending further discovery into
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2
any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the burden of
showing that he or she is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). “A party asserting that
a fact cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or presence
of a genuine dispute, or that an adverse party
cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1).
The court “is not to weigh the evidence but is
instead required to view the evidence in the
light most favorable to the party opposing
summary judgment, to draw all reasonable
inferences in favor of that party, and to
eschew credibility assessments.” Amnesty
Am. v. Town of West Hartford, 361 F.3d 113,
122 (2d Cir. 2004) (quoting Weyant v. Okst,
101 F.3d 845, 854 (2d Cir. 1996)); see
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (summary judgment is
unwarranted if “the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party”).
whether any putative class members inquired
about the at-issue letters or paid double the
amount they owed. On November 20, 2017,
defendants provided discovery in further
support of their opposition to plaintiffs’
motion for summary judgment. On March
28, 2018, the Court denied plaintiffs’ partial
motion for summary judgment on the first
cause of action, as against NRA. (ECF No.
69.) The Court held that the duplicative
collection letters in issue did not violate
Section 1692e or 1692g. On June 6, 2018,
defendants moved for summary judgment on
all of plaintiffs’ claims. (ECF No. 74.) On
August 8, 2018, plaintiffs filed a declaration
in response to defendants’ motion requesting
that the Court dismiss Count II of the
complaint. Plaintiffs also requested that the
Court issue a final judgment for defendants
as to Count I (based upon its March 28, 2018
Memorandum and Order) as plaintiffs
intended to appeal. (ECF No. 81.) The Court
advised the parties that, before issuing a final
judgment, the Court wanted to address the
alternative argument raised by defendants
with respect to Kusic’s lack of individual
liability under the FDCPA. On November
16, 2018, the parties had a status conference
regarding plaintiffs’ intentions regarding
Kusic, who was not part of plaintiffs’ prior
summary judgment motion. Plaintiffs
indicated they would oppose defendants’
summary judgment motion as to Kusic on the
issue of individual liability. (ECF No. 88.)
Plaintiffs then filed their opposition on
December 7, 2018 (ECF No. 89), and
defendants filed their reply on February 20,
2019 (ECF No. 93.). The Court has
considered all of the parties’ submissions.
Once the moving party has met its burden,
the opposing party “must do more than
simply show that there is some metaphysical
doubt as to the material facts. . . . [T]he
nonmoving party must come forward with
specific facts showing that there is a genuine
issue for trial.” Caldarola v. Calabrese, 298
F.3d 156, 160 (2d Cir. 2002) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)
(emphasis in original)). As the Supreme
Court stated in Anderson, “[i]f the evidence
II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Under Federal Rule of Civil
Procedure 56(a), a court may only grant a
motion for summary judgment if “the movant
shows that there is no genuine dispute as to
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is merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties” alone will not defeat a properly
supported motion for summary judgment. Id.
at 247-48 (emphasis in original). The
nonmoving party may not rest upon mere
conclusory allegations or denials but must set
forth “concrete particulars” showing that a
trial is needed. R.G. Grp., Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation Corp.,
585 F.2d 31, 33 (2d Cir. 1978)). Thus, it is
insufficient for a party opposing summary
judgment “merely to assert a conclusion
without supplying supporting arguments or
facts.” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996)
(quoting Research Automation Corp., 585
F.2d at 33).
abusive debt collection practices by debt
collectors, to insure that those debt collectors
who refrain from using abusive debt
collection practices are not competitively
disadvantaged, and to promote consistent
State action to protect consumers against debt
collection abuses.” Id. §§ 1692a, 1692e. The
FDCPA provides “examples of particular
practices that debt collectors are forbidden to
employ,” but the list of examples “is nonexhaustive, and the FDCPA generally forbids
collectors from engaging in unfair, deceptive,
or harassing behavior.” Kropelnick v. Siegel,
290 F.3d 118, 127 (2d Cir. 2002).
Here, defendants have moved for
summary judgment as against Kusic, arguing
that he was not a personally involved debt
collector within the meaning of the FDCPA,
and therefore cannot be held liable for the
debt collection actions of NRA. (Def. Mot. at
8.) 3 The Court agrees.
“While the Second Circuit has yet to rule
explicitly on the issue of individual FDCPA
liability, many courts, including courts within
this district, have recognized that individual
liability may be imposed where the defendant
sought to be held liable personally engaged in
the prohibited conduct.” Baltazar v.
Houslanger & Assocs., PLLC, No. 16-4982
(JMA) (AKT), 2018 WL 3941943, at *17
(E.D.N.Y. Aug. 16, 2018), report and
recommendation adopted, No. 164982
III. DISCUSSION
Congress enacted the FDCPA in response
to the “use of abusive, deceptive, and unfair
debt collection practices by many debt
collectors.” 15 U.S.C. § 1692a. Because
“[a]busive
debt
collection
practices
contribute to the number of personal
bankruptcies, to marital instability, to the loss
of jobs, and to invasions of individual
privacy,” the FDCPA aims “to eliminate
In opposition, plaintiffs first suggest in a footnote that
insufficient discovery has prevented them from
determining Kusic’s involvement with the collection
efforts. (Pl. Opp. at 1, n.1.) In addition, plaintiffs
assert that Kusic is individually liable under the
FDCPA due to his actions and omissions concerning
the NRA’s overbilling (Id. at 2-4.) First, the Court
finds plaintiffs’ discovery argument to be without
merit. During the November 16, 2018 telephone
conference, when the issue of additional discovery
was discussed, plaintiffs’ counsel indicated that he did
not believe he needed additional discovery before
opposing defendants’ summary judgment motion on
this ground, because he had conducted Kusic’s
deposition. (ECF No. 88.) Moreover, although
counsel now makes this conclusory statement in a
footnote in the opposition papers about the need for
discovery, no affidavit or declaration was filed under
Rule 56(d) of the Federal Rules of Civil Procedure
indicating what additional discovery would be needed.
With respect to the merits, as discussed infra, the
Court finds insufficient evidence in the record that
would allow Kusic to be held individually liable for
any alleged overbilling by NRA. To the extent
plaintiffs argue that individual liability exists under the
FDCPA due to inaction (even in the absence of
personal involvement), the Court disagrees.
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4
(JMA)(AKT), 2018 WL 4781143 (E.D.N.Y.
Sept. 30, 2018) (quoting Krapf v. Prof'l
Collection Servs., Inc., 525 F. Supp. 2d 324,
327 (E.D.N.Y. 2007)); see also McCrobie v.
Palisades Acquisition XVI, LLC, 15-CV-18,
2019 WL 643523, at *8-9 (W.D.N.Y. Feb.
15, 2019) (collecting cases); Williams v.
Prof'l Collection Servs., Inc., No. CV 04-286
(JS)(ARL), 2004 WL 5462235, at *4
(E.D.N.Y. Dec. 7, 2004) (citing Musso v.
Seiders, 194 F.R.D. 43, 46-47 (D. Conn.
1999)); Ohlson v. The Cadle Co., No. 04 Civ.
3418 DRH/ETB, 2006 WL 721505, at *3
(E.D.N.Y. Mar. 21, 2006) (officers and
employees may be “jointly and severally
liable with the agency where they have
affirmatively acted”). This conclusion is
completely consistent with the plain meaning
of the statutory language. 4
others in its industry,” Krapf, 525 F. Supp. 2d
at 326; or was the “sole employee responsible
for collecting plaintiffs’ debt.” Jordan v.
Tucker, Albin & Assocs., Inc., No.
13CV6863JMASIL, 2017 WL 2223918, at
*6
(E.D.N.Y.
May
19,
2017),
reconsideration denied sub nom. Jordan v.
Tucker, Albin & Assocs., No. 13-CV-6863SIL, 2018 WL 4259987 (E.D.N.Y. Sept. 6,
2018).
Here, the uncontroverted evidence
demonstrates that Kusic was not “personally
involved” in the collection efforts of
plaintiffs’ debt.
As noted supra, it is
undisputed that Kusic was not personally
involved in contacting any consumers
(including plaintiffs) in connection with
NRA’s debt collection; the disputed
collection letters did not identify Kusic as an
individual attempting to collect plaintiffs’
debts; and, as CEO, he did not “create,
review, approve, or sign the debt collection
letters sent to plaintiffs.” (Def. 56.1 ¶¶ 3336.)
Thus, this Court agrees with the analysis
in those decisions and holds that this personal
engagement requirement is met if the
individual defendant engaged in some
affirmative action with respect to the debt
collection, such as where the individual
defendant made repeated phone calls to the
plaintiff, Teng v. Metro. Retail Recovery Inc.,
851 F. Supp. 61, 67 (E.D.N.Y. 1994); signed
material documents sent to the plaintiff,
Baltazar, 2018 WL 3941943, at *17; made a
“series of abusive and deceptive phone
messages,” Williams, 2004 WL 5462235, at
4; had “final supervisory authority” over the
collection letters, Winslow v. Forster &
Garbus, LLP, No. CV 15-2996 (AYS), 2017
WL 6375744, at *14 (E.D.N.Y. Dec. 13,
2017), appeal withdrawn, No. 18-116, 2018
WL 1840195 (2d Cir. Apr. 6, 2018); acted in
“an abusive, harassing, and deceptive manner
contrary to the standards of civilized society,
and contrary to the standards employed by
A debt collector is defined as “any person who uses
any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects
In opposition, plaintiffs do not point to
any evidence that Kusic acted affirmatively,
but rather ask the “Court to determine
whether under the circumstances of this case
the owner and CEO of a debt collection
agency may be held liable under the FDCPA
where he may not have ‘acted affirmatively’
in the collection of individual accounts, but,
rather, did nothing upon discovering his
agency grossly overbilled more than 12,000
New York consumers.” (Pls.’ Opp. at 1.)
As a threshold matter, plaintiffs’
contention that nothing was done upon
discovering the duplicate files is unsupported
by the record. In fact, the uncontroverted
evidence in the record is that, upon learning
or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.”
15 U.S.C. § 1692a(6).
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