Trapper et al v. Credit Collection Services, Inc. et al

Filing 43

-CLERK TO FOLLOW UP-ORDER granting 32 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendation re 36 . Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 2/20/2013. (JMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SEAN M. TRAPPER,
MICHAEL TRAPPER, and
CYNTHIA TRAPPER,
Plaintiffs,
v.

DECISION AND ORDER
10-CV–730

CREDIT CONTROL SERVICES, INC. d/b/a
CREDIT COLLECTION SERVICES, INC., and
AFFILIATED COMPUTER SERVICES, INC.,

Defendants.

This case, wherein plaintiffs seek to recover for defendants’ alleged
violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692
et. seq., was referred to Magistrate Judge Jeremiah J. McCarthy pursuant to 28
U.S.C. §636(b)(1). On January 26, 2011, defendant Credit Control Services, Inc.
(“CCS”) filed a motion to dismiss plaintiffs’ amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). On August 31, 2011 Magistrate Judge
McCarthy issued a Report and Recommendation recommending that CCS’
motion to dismiss be granted (Dkt. No. 23). The Magistrate Judge found that
because plaintiffs’ loans from Wachovia Educational Finance, Inc. were not in
default, the FDCPA did not apply to defendant CCS.
Plaintiffs filed objections to the Report and Recommendation and

defendant CCS filed a response. Oral argument on the objections was held on
October 21, 2011. By Order dated October 26, 2011, this Court adopted
Magistrate Judge McCarthy’s recommendation dismissing plaintiffs’ amended
complaint as to CCS. (Dkt. No. 28).
Defendant Affiliated Computer Services, Inc. (“ACS”) initially answered the
amended complaint instead of moving to dismiss. However, ACS later moved to
dismiss the amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim, relying on the “points of authorities contained
in the motion to dismiss [by defendant CCS] and Order granting said motion”
(Dkt. No. 32). On September 18, 2012, Magistrate Judge McCarthy issued a
Report and Recommendation recommending that defendant ACS’ motion to
dismiss the amended complaint be granted (Dkt. No. 36). The Magistrate Judge
found that “since plaintiffs fail[ed] to raise any arguments distinguishing their
allegations against ACS from those which they asserted against CCS, I
recommend that ACS’ motion to dismiss be granted for the reasons stated in my
August 31, 2011 Report and Recommendation.”
On September 30, 2012, plaintiffs filed objections to the Magistrate Judge’s
Report and Recommendation dismissing the amended complaint against ACS
(Dkt. No. 37). ACS filed a response on October 11, 2012 (Dkt. No. 39). Plaintiffs’
replied to ACS’ response on November 12, 2012, (Dkt. No. 42), and the Court
deemed the matter submitted.
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Pursuant to 28 U.S.C. §636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review, and after reviewing the
submissions from the parties, the Court hereby adopts Magistrate Judge
McCarthy’s recommendation to grant defendant ACS’ motion to dismiss the
amended complaint.
Accordingly, for the reasons set forth in Magistrate Judge McCarthy’s
Report and Recommendation, defendant ACS’ motion to dismiss the complaint is
granted. The Clerk of the Court is directed to close the case.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED:February 20, 2013

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