Hockenhull v. Law Office Howard Lee Schiff, P.C.
Filing
15
OPINION AND ORDER denying 12 Motion for Judgment on the Pleadings. So Ordered by Judge William E. Smith on 12/13/12. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
v.
)
)
LAW OFFICE HOWARD LEE SCHIFF,
)
P.C.; and DOE 1-5,
)
)
Defendants.
)
___________________________________)
DEBRA A. HOCKENHULL,
C.A. No. 12-415 S
OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before the Court is Defendant Law Office Howard Lee Schiff,
P.C.’s (“Schiff”) Motion for Judgment on the Pleadings Pursuant
to the Provisions of Federal Rule of Civil Procedure 12(c).
For
the reasons set forth below, the motion is DENIED.
I.
Background
Plaintiff Debra A. Hockenhull, a resident of Warwick, Rhode
Island,
has
filed
a
four-count
complaint
(the
“Complaint”)
against Defendant Schiff, a Connecticut corporation and thirdparty debt collector, and Does 1-5 (collectively with Schiff,
the “Defendants”).
Hockenhull accuses Defendants of violating
numerous sections of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq. (the “FDCPA”), in connection with efforts
to collect consumer debt owed by Hockenhull.
(See generally
Compl., ECF No. 1.)
According to the Complaint, Defendants sent Hockenhull an
initial collection letter on December 4, 2010, and Hockenhull
responded
on
December
12,
2010,
disputing
requesting verification information.
the
(Id. ¶ 6.)
debt
and
Defendants
never provided this verification information, and instead began
calling Hockenhull “repeatedly.”
(Id. ¶ 7.)
Hockenhull alleges
that Defendants called her two to three times a day, anytime
from
8:05
a.m.
until
8:55
p.m.;
in
all,
Hockenhull
alleges
Defendants called her approximately one hundred times between
December 2010 and June 22, 2011.
(Id.)
The calls consisted of
automated and “pre-recorded messages demanding a return call.”
(Id. ¶¶ 7, 13.)
Hockenhull retained Robert Amador as counsel; on April 15,
2011, and again on April 18, 2011, Amador informed Defendants of
his representation of Hockenhull.
(Id. ¶¶ 8-10.)
Nevertheless,
Defendants allegedly continued to contact Hockenhull regarding
the collection of her debt.
(Id. ¶ 10.)
As a result, on or
about May 20, 2011, Amador sent a demand letter to Defendants,
asserting violations of the FDCPA.
(Id. ¶ 11.)
Hockenhull
claims that Defendants continued to call through November 19,
2011.
(Id. ¶ 12.)
2
Hockenhull filed suit against Defendants on May 31, 2012.
On October 24, 2012, Schiff filed the instant motion.
Mot. for J. on the Pleadings, ECF No. 12.)
on November 13, 2012.
(Def.’s
Hockenhull responded
(Pl.’s Resp. in Opp’n to Def.’s Mot., ECF
No. 14.)
II.
Discussion
Rule 12(c) of the Federal Rules of Civil Procedure states
that “[a]fter the pleadings are closed – but early enough not to
delay trial – a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c).
“The standard of review of a motion for
judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is the same as that for a motion to dismiss under Rule
12(b)(6).”
2007).
Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir.
A court “may not grant a defendant’s Rule 12(c) motion
‘unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.’”
Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Cir. 1988) (quoting George C. Frey Ready-Mixed Concrete, Inc. v.
Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977));
see also Citibank Global Mkts., Inc. v. Rodriguez Santana, 573
F.3d 17, 23 (1st Cir. 2009) (explaining that “the complaint must
plead facts that raise a right to relief above the speculative
level” to survive a motion for judgment on the pleadings).
“In
the archetypical case, the fate of [a 12(c)] motion will depend
3
upon
whether
potential
the
dispute
pleadings,
about
one
taken
or
more
as
of
a
whole,
the
reveal
material
any
facts.”
Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 38 (1st Cir.
2004).
A.
Statute of Limitations
Schiff first argues that some of the allegations must be
dismissed because the phone calls comprising those allegations
occurred prior to May 31, 2011, and thus fall outside the one
year statute of limitations. 1
meanwhile,
applies.
contends
that
(Def.’s Mot. 6-7.)
the
“continuous
(Pl.’s Resp. 2-3.)
Hockenhull,
violation”
theory
While this Court has not yet
addressed the issue of how the one year statute of limitations
applies when some of the conduct occurred within the limitations
period and some occurred outside of it, the courts that have
considered
the
issue
have
found
the
doctrine applicable and the action timely.
continuous
violation
See, e.g., Devlin v.
Law Offices Howard Lee Schiff, P.C., Civil Action No. 11-11902JGD, 2012 WL 4469139, at *7 (D. Mass. Sept. 25, 2012) (citing
cases).
As the Northern District of California put it:
The key
constitutes a
as opposed to
pattern, then
is whether the conduct complained of
continuing pattern and course of conduct
unrelated discrete acts. If there is a
the suit is timely if “the action is
1
15 U.S.C. § 1692k(d) states that “[a]n action to enforce
any liability created by this subchapter may be brought . . .
within one year from the date on which the violation occurs.”
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filed within one year of the most recent date on which
the defendant is alleged to have violated the FDCPA.”
Joseph v. J.J. Mac Intyre Cos., 281 F. Supp. 2d 1156, 1161 (N.D.
Cal. 2003) (quoting Padilla v. Payco Gen. Am. Credits, Inc., 161
F. Supp. 2d 264, 273 (S.D.N.Y. 2001)).
This Court agrees with the reasoning of its sister courts.
The
Complaint
harassed
2011.
alleges
Hockenhull
that
from
(Compl. ¶¶ 7-12.)
Defendants
December
repeatedly
2010
through
called
and
November
19,
This is a clear pattern of conduct and
not a group of unrelated, discrete acts.
Thus the continuing
violation doctrine applies and the applicable date for statute
of
limitation
purposes
November 19, 2011.
well
before
the
November 19, 2012.
B.
is
the
date
of
the
last
phone
call:
The Complaint was filed on May 31, 2012,
one
year
statute
of
limitations
deadline
of
Thus, all of Hockenhull’s claims are timely.
Substantive Arguments
Aside from the statute of limitations argument, Schiff’s
motion contends that Hockenhull failed to state a valid claim
for any of the counts alleged in the Complaint.
These arguments
have
nothing
no
merit.
At
their
core,
each
is
but
a
disagreement over the material facts alleged in the Complaint.
Count I
In response to Count I, that Defendants violated 15 U.S.C.
§ 1692c(a)(2) by making collection calls after having knowledge
5
that Hockenhull was represented by counsel, Schiff argues that
because Amador was not licensed to practice law in Rhode Island,
never provided Schiff with confirmation that he was a licensed
attorney, and never responded to Schiff’s letter, Schiff was
“entitled
to
Hockenhull.”
assume
(Def.’s
that
Mot.
Mr.
Amador
7-10.)
did
not
Moreover,
represent
Mrs.
it
that
argues
because Amador failed to respond in a timely manner, Schiff was
entitled to presume Hockenhull was no longer represented.
at 10.)
(Id.
Hockenhull, meanwhile, disputes the relevance of Amador
not being licensed in Rhode Island and disputes the contention
that Amador did not respond to Schiff’s letter.
8.)
(Pl.’s Resp. 5-
Schiff’s arguments, which implicate both legal and factual
issues, do not support judgment under Rule 12(c).
Regarding the legal issue of whether Amador’s out-of-state
law license negated Schiff’s responsibility to comply with §
1692c(a)(2), Schiff’s argument fails.
Rule 5.5 of the Rhode
Island
entitled
Rules
of
Professional
Conduct,
“Unauthorized
Practice of Law; Multijurisdictional Practice of Law,” provides:
(c) A lawyer admitted in another United States
jurisdiction, and not disbarred or suspended from
practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction
that:
. . . .
(2) are in or reasonably related to a pending or
potential proceeding before a tribunal in this or
another jurisdiction, if the lawyer, or a person the
lawyer is assisting, is authorized by law or order to
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appear in such proceeding or reasonably expects to be
so authorized.
R.I. Supreme Court Rules of Professional Conduct, Article V,
Rule 5.5(c)(2) (emphasis added.)
of-state
attorney
to
This Rule allows for an out-
represent
a
Rhode
Island
resident
in
a
matter which he anticipates will lead to the filing of a lawsuit
and pro hac vice motion; that is exactly the situation presented
here.
See id. (Commentary).
Conversely, under Schiff’s theory,
Amador would be required to seek pro hac vice admission on a
yet-to-be-filed case before he can prepare for the filing of the
lawsuit which may or may not end up being filed.
This not only
would be a waste of resources, it would make no sense; this is
not what the Rules require.
Schiff also argues that Amador’s conduct following receipt
of
Schiff’s
letter
§ 1692c(a)(2).
issue.
attorney.
its
obligation
to
comply
with
This argument raises both a legal and a factual
First,
§ 1692c(a)(2)
alleviated
it
to
is
provide
not
Amador’s
confirmation
responsibility
that
he
is
a
under
licensed
Section 1692c(a)(2) simply requires that the debt
collector “[have] knowledge of, or can readily ascertain, such
attorney’s
Schiff,
name
the
and
debt
address.”
Moreover,
collector,
to
confirm
the
this
burden
is
on
information.
Considering there is ample evidence that Schiff had Amador’s
name and address, Schiff’s attempt to obtain judgment on the
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pleadings by shifting the burden and requiring Amador and/or
Hockenhull to provide any information, let alone information not
required by statute, is improper.
Additionally,
the
root
of
Schiff’s
argument
is
a
fundamental dispute over the communications that were (or were
not)
made
between
Amador
and
Schiff
and
whether
those
communications occurred “within a reasonable period of time.”
This disagreement is a fact issue which further precludes a Rule
12(c) motion.
See Reder, 355 F.3d at 38; Rivera-Gomez, 843 F.2d
at 635.
Count II
In Count II, Hockenhull accuses Defendants of violating 15
U.S.C.
§
1692d
Hockenhull
by
with
the
making
intent
over
one
hundred
to
harass
her.
phone
calls
Schiff’s
to
motion
argues that “the allegation that 100 telephone calls were made
to
Mrs.
Hockenhull
is
simply
false.”
(Def.’s
Mot.
11.)
Schiff’s reference to Jeanine M. Dumont’s affidavit and Schiff’s
phone logs are irrelevant because the Court is still left with a
question of material fact over how many calls were made and when
they were made.
motion.
Thus, Schiff cannot prevail on its Rule 12(c)
See Reder, 355 F.3d at 38; Rivera-Gomez, 843 F.2d at
635.
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Count III
As
with
Count
II,
Schiff’s
argument
in
support
of
its
motion for Count III, a violation of 15 U.S.C. § 1692g(b) for
failing to furnish debt verification information, is merely a
dispute over the truth of the allegations.
Stating that “Schiff
Law Offices did not receive a request for validation from Mrs.
Hockenhull” (Def.’s Mot. 14) and that “[i]f such a request had
been received, the firm has very clear procedures for stopping
all collection activities until validation of the debt had been
sent” (id.) is wholly insufficient to establish “beyond doubt”
that Hockenhull “can prove no set of facts in support” of her
claim.
See Rivera-Gomez, 843 F.2d at 635.
Schiff’s Rule 12(c)
motion, therefore, must fail.
Count IV
Schiff’s argument for judgment on the pleadings for Count
IV
fails
for
the
same
reason.
Hockenhull
alleges
that
Defendants left telephone messages stating, “This message is for
Debra Hockenhull.
up now.
If you are not Debra Hockenhull, please hang
Please call Law Offices Howard Lee Schiff, attorneys in
the practice of debt collection at (866)234-7606, Monday through
Friday from 8:30 a.m. to 8:30 p.m.
to CM number [account number].”
to
Hockenhull,
violated
§§
When you call, please refer
(Compl. ¶ 13.)
1592d(6)
and
e(11)
This, according
of
the
FDCPA
because disclosing the name of the law firm but not the name of
9
the
caller
requirement.
does
not
satisfy
the
“meaningful
disclosure”
Schiff’s motion, meanwhile, asserts that “there is
no basis” for the claim because “[e]very call by the Schiff Law
Office identifies that it is a call for the Law Offices Howard
Lee Schiff and if the call if [sic] made by an employee, the
name
of
the
employee
calling
is
given.”
(Def.’s
Mot.
15.)
Simply disagreeing with the allegations in the Complaint does
not change the fact that Hockenhull has pleaded facts that, if
proven true, entitle her to relief.
Rule 12(c) is inappropriate.
Thus, judgment pursuant to
See Rodriguez Santana, 573 F.3d at
23; Rivera-Gomez, 843 F.2d at 635.
III. Conclusion
For the foregoing reasons, Schiff’s motion for judgment on
the pleadings pursuant to Rule 12(c) is DENIED.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: December 13, 2012
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