Covell v. Chiari & Ilecki, LLP et al

Filing 19

DECISIION AND ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendation re 14 . Case is referred back to Magistrate Judge Scott for further proceedings. Signed by Hon. Richard J. Arcara on 2/21/2013. (JMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIAM COVELL, JR.,
Plaintiff,
v.

DECISION AND ORDER
12-CV–660

CHIARI & ILECKI, LLP,
DOES 1-10, Inclusive
Defendants.

This case, wherein plaintiff seeks 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 Hugh B. Scott pursuant to 28 U.S.C.
§636(b)(1). Defendant Chiari & Ilecki, LLP (“Chiari & Ilecki”) has moved to
dismiss the amended complaint for failure to state a claim pursuant to Federal
Rules of Civil Procedure 8 and 12(b)(6). On October 16, 2012 Magistrate Judge
Scott issued a Report and Recommendation recommending that the motion to
dismiss be granted in part and denied in part (Dkt. No. 14).
The Magistrate Judge specifically found that because plaintiff was aware
that it was his son who owed the purported debt, and because the least
sophisticated consumer would have known that the letter was not intended for
plaintiff and not a false representation of a debt owed, the majority of Plaintiff’s
claims under Section 1692 of the FDCPA should be dismissed. However, the

Magistrate Judge also found that because Section 1692e(10), unlike other
provisions of the FDCPA involving false representation, allows claims for “the
mere dunning of the wrong party”, plaintiff met the plausibility threshold for a
claim under Section 1692(e)(10). Thus, the Magistrate Judge recommended that
the defendant’s motion to dismiss as to this claim be denied.
On October 30, 2012 defendant filed objections to the Magistrate Judge’s
Report and Recommendation (Dkt. No. 15). Plaintiff filed a response on
November 16, 2012 (Dkt. No. 17). Defendant replied to plaintiff’s response on
November 27, 2012, (Dkt. No. 18), and the Court deemed the matter submitted.
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 Scott’s
recommendation to dismiss the majority of the amended complaint alleging
violations of Section 1692 of the FDCPA, but to allow plaintiff to proceed with
respect to his claim pursuant to Section 1692e(10) only.
Accordingly, for the reasons set forth in Magistrate Judge Scott’s Report
and Recommendation, defendant Chiari & Ilecki’s motion to dismiss is granted in
part and denied in part. The case is referred to the Magistrate Judge for further
proceedings.

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SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: February 21, 2013

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