Graffeo v. Revenue Assistance Corporation

Filing 29

ORDER denying 11 Motion to Dismiss. Case is referred back to Magistrate Judge for further proceedings. Signed by Hon. Richard J. Arcara on 2/10/2010. (JMB)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

M E L IS S A A. GRAFFEO, P la in tiff, D E C IS IO N AND ORDER 0 8 -C V -9 2 9 A v.

REVENUE ASSISTANCE CORP. d/b/a REVENUE GROUP, D e fe n d a n t.

IN T R O D U C T IO N P e n d in g before the Court is a motion by defendant to dismiss plaintiff's c o m p la in t for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal R u le s of Civil Procedure ("FRCP"). In support of its motion, defendant argues th a t this case now is moot because plaintiff rejected an offer of judgment p u rs u a n t to FRCP 68 that would have given her the maximum amount that she c o u ld recover for statutory damages. Plaintiff asserts in opposition, inter alia, that d e fe n d a n t is mistaken in its belief about the burden of proof that she must meet th is early in the case regarding actual damages. Pursuant to FRCP 78(b), the C o u rts finds oral argument unnecessary. Because defendant admitted in its own m o tio n papers that its offer of judgment did not address all of plaintiff's claims, the C o u rt will deny the pending motion.

BACKGROUND T h is case concerns allegations of improper debt collection attempts that vio la te d the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § § 1692­1692p. On December 18, 2008, plaintiff filed a complaint (Dkt. No. 1) a c c u s in g defendant of multiple violations of the FDCPA, including failure to d is c lo s e information required by statute, improper communications with parties o th e r than the debtor, and harassing telephone calls. Paragraph 29 of the c o m p la in t states explicitly "[t]hat as a result of the Defendant's FDCPA violations a s alleged herein, Plaintiff Melissa A. Graffeo became nervous, upset, anxious a n d suffered from emotional distress." In the ad damnum clause of her c o m p la in t, plaintiff explicitly requests actual damages among several other types o f relief. O n April 16, 2009, defendant filed the pending motion to dismiss for lack of s u b je c t matter jurisdiction. In the memorandum of law filed that day (Dkt. No. 13), d e fe n d a n t explained that it made an FRCP 68 offer of judgment that plaintiff did n o t accept. The offer of judgment was for $1,001 in statutory damages, plus a tto rn e y fees and costs to be determined later. Defendant conceded explicitly th a t "the Rule 68 offer did not provide for the assessment of actual damages" (id. a t 5), even though the first type of relief requested in the complaint was actual d a m a g e s . Nonetheless, defendant somehow reasons that "given this is a factual a tta c k on this Court's subject matter jurisdiction, the onus is now on Plaintiff to c o m e forward with some evidentiary facts demonstrating her entitlement to actual

damages in order to meet her burden of demonstrating that this Court still has s u b je c t matter jurisdiction over her claims." In opposition to defendant's motion, p la in tiff cites extensively to authority establishing how low plaintiff's burden of p ro o f of actual damages is this early in the case. DISCUSSION "[A ] party defending against a claim may serve on an opposing party an o ffe r to allow judgment on specified terms, with the costs then accrued." FRCP 6 8 (a ).1 In general, a case becomes moot when a plaintiff rejects an offer for the m a xim u m amount recoverable for all claims in a complaint, because "there is no ju s tific a tio n for taking the time of the court and the defendant in the pursuit of m in u s c u le individual claims which defendant has more than satisfied." Abrams v. In te rc o Inc., 719 F.2d 23, 32 (2d Cir. 1983). "Courts have, however, denied a d e fe n d a n t's motion to dismiss on mootness grounds where the plaintiff potentially c o u ld recover more than the relief offered by defendant, such as where the offer is not comprehensive, or where the amount due to plaintiff is disputed." Ward v. B a n k of N.Y., 455 F. Supp. 2d 262, 267 (S.D.N.Y. 2006) (citations omitted). Defendant's motion must be denied because defendant itself has admitted th a t its offer of judgment did not address all damages that plaintiff could recover. In the particular context of FDCPA claims, "a plaintiff is limited to $1,000 plus

F o r the sake of thoroughness, the Court will note that the amendments to F R C P 68 that became effective on December 1, 2009 have no effect on the p e n d in g motion.

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costs and attorneys' fees for her claim under FDCPA only if she does not assert a n y claim for actual damages . . . . Here, plaintiff asserts that she sustained a c tu a l damages. It says so in her complaint, which I presume (perhaps wrongly) th e defendant . . . and its counsel have read. So $1,000 is not the limit of her m a xim u m possible recovery on her FDCPA claim . . . ." Shepherd v. Law Offices o f Cohen & Slamowitz, LLP, No. 08 Civ. 6199, 2009 W L 3496863, at *3 (S.D.N.Y. O c t. 29, 2009). Since defendant did not address actual damages in its offer of ju d g m e n t or offer any argument that actual damages are reasonably calculable in a d va n c e , dismissal is not warranted. C O N C L U S IO N F o r all of the foregoing reasons, defendant's motion is denied. This case is re fe rre d back to Magistrate Judge Foschio for further proceedings. SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: February 10 , 2010