Laccinole v. Assad

Filing 40

MEMORANDUM AND ORDER granting (9) Motion for Judgment on the Pleadings; granting (12) Motion to Dismiss for Failure to State a Claim in case 1:14-cv-00404-S-PAS. So Ordered by Chief Judge William E. Smith on 3/7/16. Associated Cases: 1:14-cv-00404-S-PAS, 1:14-cv-00447-S-PAS, 1:14-cv-00508-S-PAS(Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
JUDY B. ASSAD,
)
JAMES D. SYLVESTER, and
)
THE VILLAGE LOWER SCHOOL, INC.,
)
)
Defendants.
)
___________________________________)
CHRISTOPHER LACCINOLE,

C.A. No. 14-404 S

MEMORANDUM AND ORDER
Plaintiff, Christopher Laccinole (“Laccinole”), has brought
three suits relating to attempts to collect the same debt — moneys
he allegedly owes to The Village Lower School, Inc. (“The Village
Lower School”).

In the first suit, C.A. No. 14-404 S,

Laccinole

names Judy B. Assad (“Assad”), James D. Sylvester (“Sylvester”),
and The Village Lower School as defendants.

In the other two

matters, C.A. No. 14-447 S and C.A. No. 14-508 S, Laccinole names
Assad as the sole defendant.

The Court consolidated these actions

for more efficient case management.

(ECF Nos. 37 (14-404), 18

(14-447), and 13 (14-508).)
This Memorandum and Order considers two motions currently
pending before the Court in 14-404: Assad’s Motion for Judgment on
the Pleadings (ECF No. 9) (“Assad’s Mot.”) and Sylvester’s Motion

to Dismiss Pursuant to Rule 12(b)(6) (ECF No. 12) (“Sylvester’s
Mot.”). For the reasons set forth below, both motions are granted.
I. Background
The alleged facts in this debt collection drama are relatively
straight

forward.

Laccinole,

a

resident

of

Narragansett

Washington County, Rhode Island, has two alleged antagonists.
first,

Assad,

is

a

licensed

Rhode

Island

attorney

—

in
The

not

a

registered debt collector — who sought to collect a debt Laccinole
owed to Assad’s client, The Village Lower School.

(Am. Compl. ¶¶

20, 71, 73, 86, ECF No. 2; Ex. B to Am. Compl., ECF No. 2-2.)

The

second is Sylvester, a Rhode Island constable and process server,
who, like Assad, is not a registered debt collector.

(Am. Compl.

¶¶ 29, 72, ECF No. 2.)
The present action focuses on Assad’s attempted to commence
a civil suit (the “state collection action”) against Laccinole
related to a debt to The Village Lower School.

(Am. Compl. ¶ 71,

ECF No. 2; see Exs. A & B to Am. Compl., ECF Nos. 2-1 & 2-2.)
August

27,

2014,

Sylvester

served

Laccinole

a

summons

and

On
a

complaint alleging that he owed $8,075.00 to the school. (Am.
Compl. ¶¶ 72, 78, ECF No. 2; Exs. A & B to Am. Compl., ECF Nos. 21 & 2-2.)

The complaint also referenced a copy of an “account”

outlining the debt, which it purported to attach as Exhibit A to
the complaint.
attached.

(Id. at ¶ 82.)

The exhibit, however, was not

(Am. Compl. ¶¶ 82-83, ECF No. 2.)
2

During service,

Sylvester circled Assad’s name on the complaint, drew an arrow to
Assad’s phone number, and told Laccinole to “just call her and you
can set up payments so you don’t have to go to court.”

(Id. ¶¶

77-78, ECF No. 2.)
At the time of service, Assad had not yet filed the state
collection action.

(Am. Compl. ¶ 91, ECF No. 2.)

The operable

Rhode Island District Court Rule at the time gave a plaintiff ten
days to file a complaint after serving it on a defendant.
R.I. R. Dist. Ct. Civ. Rule 3 (2014).

See

Assad’s ten day window

technically expired on Saturday, September 6, 2014, but she did
not file the complaint until the following Monday, September 8,
(Ex. A to Assad’s Mot., ECF No. 9-2.) 1

2014.
dismiss

the

complaint

alleging

that

Assad

Laccinole moved to
improperly

served

Laccinole and that Assad filed the complaint two days after the
service period prescribed by the Rhode Island Civil Rules.
D to Assad’s Mot., ECF No. 9-5.)
filed

an

Laccinole.

affidavit

from

(Ex.

Assad opposed the motion and

Sylvester

recounting

(Ex. D to Am. Compl., ECF No. 2-4.)

how

he

served

In the affidavit,

Sylvester averred, among other things, that he circled Assad’s

1

The Court takes judicial notice of the state collection
action pleadings Assad attaches to her motion, which it can
properly do without converting the motion to one for summary
judgment. See Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008)
(“A court may consider matters of public record in resolving a
Rule 12(b)(6) motion to dismiss. Matters of public record
ordinarily
include
documents
from
prior
state
court
adjudications.” (citations and internal quotation marks omitted)).
3

name and phone number on the complaint and told Laccinole that he
could contact Assad.
Laccinole’s motion.
On
action.

September

(Id.)

The Rhode Island trial court denied

(Ex. E to Assad’s Mot., ECF No. 9-6.)
11,

2014,

Laccinole

commenced

the

present

On September 29, 2014, Laccinole amended his complaint

(ECF No. 2) (“Amended Complaint”) alleging thirteen counts against
Assad, Sylvester, and The Village Lower School based on Assad and
Sylvester’s
action.

respective

The

thirteen

roles

in

counts

filing

include

the

four

state
Federal

collection
Fair

Debt

Collection Practices Act (“FDCPA”) (15 U.S.C. § 1692, et seq.)
claims against Assad and Sylvester (Counts I, II, III, and IV),
four Rhode Island Fair Debt Collection Practices Act (“RI FDCPA”)
(R.I. Gen. Laws § 19-14.9-1, et seq.) claims against Sylvester
(Counts V, VI, VII, and VIII), and five claims against all three
defendants: a Rhode Island Deceptive Trade Practice Act claim (“RI
DTPA”) (R.I. Gen. Laws § 6-13.1-1, et seq.) (Count IX), a fraud
claim (Count X), a civil conspiracy claim (Count XI), a “Right to
Privacy” claim (Count XII), and a “Civil Liability for Crimes and
Offenses” claim (Count XIII).

Assad has moved for judgment on the

pleadings as to all of the claims against her pursuant to Fed. R.
Civ. Pro. 12(c) (ECF No. 9), and Sylvester has moved to dismiss
all of the claims against him pursuant to Fed. R. Civ. P. 12(b)(6)
(ECF No. 12).

4

II. Legal Standard
The standard of review is the same for both a motion for
judgment on the pleadings under Federal Rule of Civil Procedure
12(c) and a motion to dismiss under Rule 12(b)(6).

Frappier v.

Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014).
Under both rules, the court must view the facts contained in the
pleadings in the light most favorable to the non-moving party and
draw all reasonable inferences in that party’s favor.

Perez-

Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).

To

survive either motion, however, plaintiff must present “factual
allegations that ‘raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
are true.’”

Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 545 (2007)).

Put another way, “[w]hile detailed factual

allegations are not required, ‘a formulaic recitation of the
elements of a cause of action’ is not sufficient.

DeLucca v. Nat’l

Educ. Ass’n of Rhode Island, 102 F. Supp. 3d 408, 411 (D.R.I. 2015)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
In reviewing motions brought under rules 12(c) and 12(b)(6),
courts ordinarily are limited to reviewing the complaint and
documents attached to it.
Cir. 2007).

Curran v. Cousins, 509 F.3d 36, 44 (1st

There are, however, “exception[s] for documents the

authenticity of which are not disputed by the parties; for official
public records; for documents central to plaintiffs’ claim; or for
5

documents sufficiently referred to in the complaint.”

DeLucca,

102 F. Supp. 3d at 411-12 (quoting Watterson v. Page, 987 F.2d 1,
3 (1st Cir. 1993)); Curran, 509 F.3d at 44 (applying rule to
motions brought under Rule 12(c)).

Generally, courts may consider

documents from prior state court proceedings in deciding motions
to dismiss as “public records.”

Giragosian v. Ryan, 547 F.3d 59,

66 (1st Cir. 2008) (“Matters of public record ordinarily include
“documents from prior state court adjudications.”); Boateng v.
InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000) (“And
a court ordinarily may treat documents from prior state court
adjudications as public records.”).
III. Discussion
Before considering Laccinole’s individual causes of action,
the Court pauses to consider two allegations – what Laccinole
characterizes as “unlawful” and “criminal” conduct – forming the
core of many of Laccinole’s claims: (1) that Assad and Sylvester
engaged in the unauthorized practice of law (“UPL”) when Sylvester
served Laccinole; and (2) that Assad and Sylvester should have
registered as debt collectors under Rhode Island law.

Both of

these allegations are baseless and disposing of them now will
streamline the analysis of the remainder of Laccinole’s claims.
Laccinole bases his UPL claim on Sylvester’s comment that
Laccinole could avoid court by calling Assad to set up a payment
plan.

(Am. Compl. ¶¶ 78-79, 100-104, ECF No. 2.)
6

According to

Laccinole, Sylvester’s comments constituted legal advice and a
settlement negotiation under R.I. Gen. Laws 11-27-2(2) & (3).
Aside from quoting the statutory language, however, Laccinole
cites to no authority to support his contention that Sylvester’s
conduct meets either definition and this Court has found none.
While “[w]e must remember that the practice of law at a given time
cannot be easily defined,” Unauthorized Practice of Law Comm. v.
State, Dep’t of Workers’ Comp., 543 A.2d 662, 665 (R.I. 1988),
Laccinole’s allegations simply do not suggest Sylvester practiced
law.

Accordingly, his UPL allegations do nothing to support his

other claims.
Laccinole

also

alleges

that

Assad

and

Sylvester

unlawfully by not registering as debt collectors.

acted

The RI FDCPA

requires registration as a debt collector when a person is engaged
in the “business of a debt collector,” “engage[d] in soliciting
the right to collect or receive payment for another . . .”, or
advertises for or solicits in print for the right to collect or
receive payment from another.

R.I. Gen. Laws § 19-14.9-12(1).

The statute, however, expressly excludes attorneys and process
servers from its definition of “debt collector.”
§

19-14.9-3(5)(d)

(exempting

“[a]

person

R.I. Gen. Laws

while

serving

or

attempting to serve legal process on another person in connection
with the judicial enforcement of a debt.”); R.I. Gen. Laws § 1914.9-2(5)(g) (exempting “[a]ttorneys-at-law collecting a debt on
7

behalf

of

a

client.”).

Here,

Laccinole’s

Amended

Complaint

concedes that Assad is an attorney and Sylvester a process server.
(Am. Compl. ¶¶ 20, 29-30, ECF No. 2.)

Thus, even taken in the

light most favorable to Laccinole, his Amended Complaint alleges
facts

that

registration

exempt

Assad

requirement

and
and,

Sylvester
like

his

from
UPL

the

RI

FDCPA’s

allegation,

his

“failure to register” argument does not support his other claims. 2
A.

FDCPA Claims

The Court now turns to Laccinole’s FDCPA claims.

Congress

created the statute to protect consumers from “abusive, deceptive,
and unfair debt collection practices.”

15 U.S.C. § 1692(a).

To

that end, the Act “regulates debt collectors’ tactics and, inter
alia, creates a private cause of action for victims of oppressive
or offensive collection agency behavior.”

Chiang v. Verizon New

England Inc., 595 F.3d 26, 41 (1st Cir. 2010) (internal quotation

2

Laccinole’s only reasonable argument in support of his
failure to register claim is that Sylvester should have registered
as a debt collector because he went beyond the duties of a process
server when he served the complaint on Laccinole. (Pl.’s Opp’n to
Sylvester’s Mot. 3-5, ECF No. 30-1.) Laccinole is correct that
Sylvester, as a process server, can still be liable under the FDCPA
and RI FDCPA for conduct falling outside his duties as a process
server. See Andrews v. S. Coast Legal Servs., Inc., 582 F. Supp.
2d 82, 88 (D. Mass. 2008) (“[A] person who goes beyond being merely
a messenger in serving legal process and engages in prohibited
abusive or harassing activities to force an individual to repay a
debt is no longer exempt under the legal process server
exception.”(internal citation and quotation marks omitted)).
This, however, does not implicate the statute’s registration
requirement, from which Sylvester was clearly exempt.
8

marks and citations omitted).

In assessing a debt collector’s

representations or means of collecting debts, courts in this
Circuit employ an objective test to determine whether the conduct
would have disabled an “unsophisticated consumer” from knowingly
deciding how to handle the debt collection effort.

See Pollard v.

Law Office of Mandy L. Spaulding, 766 F.3d 98, 103 (1st Cir. 2014).
This

standard

“protects

all

consumers,

including

the

inexperienced, the untrained, and the credulous” but will not hold
debt collectors liable for a consumer’s “chimerical or farfetched”
understanding of a communication.

Id. at 103-04.

Here, Laccinole

alleges that Assad and Sylvester’s collection efforts violated
multiple sections of the FDCPA.
1.

The Court considers each in turn.

Abusive or Harassing Conduct in Violation of 15
U.S.C. § 1692d

In Count I, Laccinole alleges that Assad and Sylvester’s
collection tactics were abusive and harassing in violation of 15
U.S.C. § 1692d.

Section 1692d prohibits tactics, “the natural

consequence of which is to harass, oppress, or abuse any person”
and then lists six non-exhaustive examples of such conduct.
U.S.C. § 1692d.

15

These examples include the use or threat of

violence, the use of obscene or profane language, and publishing
a list of consumers who refuse to pay a debt.

Id.

Laccinole does

not

one

of

allege

categories.

conduct

that

easily

fits

into

§

1692d’s

Instead, he argues more generally that Defendants

9

used “sham legal papers” to harass and abuse him.
Assad’s Mot. 9, ECF No. 32-1.)

(Pl.’s Opp’n to

Specifically, Laccinole claims

that Sylvester served him the complaint before it was filed and
that Assad filed the complaint after the ten day window for doing
so had closed.
As a general rule, threatening to file or filing a lawsuit
does not, by itself, constitute abusive or harassing conduct
violative of § 1692d.

Jeter v. Credit Bureau, Inc., 760 F.2d 1168,

1179 (11th Cir. 1985) (a threatened lawsuit might cause a consumer
“embarrassment, inconvenience, and further expense

. . .” but

“even a consumer susceptible to harassment, oppression, or abuse
would not have been harassed, oppressed, or abused by the [threat]
in and of itself.” (emphasis in original)); Harvey v. Great Seneca
Fin. Corp., 453 F.3d 324, 330 (6th Cir. 2006) (same); Miljkovic v.
Shafritz & Dinkin, P.A., 791 F.3d 1291, 1305-06 (11th Cir. 2015)
(same).

This

is

the

ultimately unsuccessful.

case

even

if

a

collection

lawsuit

is

See, e.g., Hemmingsen v. Messerli &

Kramer, P.A., 674 F.3d 814, 820 (8th Cir. 2012) (“That the state
court granted [plaintiff] summary judgment is not evidence that
[the debt collector’s] aggressive pursuit of [an] unpaid account
in litigation violated statutory prohibitions targeted at abusive
pre-litigation practices.”).

Nevertheless, threatening to file a

lawsuit that a debt collector cannot lawfully file or does not
intend to file can constitute harassment under § 1692d.
10

See Curto

v. Palisades Collection, LLC, No. 07-CV-529(S), 2011 WL 5196708,
at *5 (W.D.N.Y. Oct. 31, 2011) (“Bringing suit where a prior
collection

action

has

been

dismissed

with

prejudice

could

constitute violations under § 1692d.”).
Here, Laccinole cannot show that Defendants’ service and
filing of the state collection action violated § 1692d.

First,

the applicable civil rules at the time permitted plaintiffs to
file complaints up to ten days after a process server effectuate
service.

See R.I. R. Dist. Ct. Civ. Rule 3 (2014). 3

Thus, that

Sylvester served Laccinole prior to filing does not render service
of the complaint abusive or harassing.
Further, assuming, arguendo, that Laccinole’s allegation is
correct and Defendants filed the collection action two days late,
this does not amount to a violation of § 1692d either.

Even with

the alleged error, Laccinole does not, and cannot, allege that

3

The Rhode Island District Court Rules were amended
effective November 5, 2014.
Sylvester served Laccinole the
collection action on August 27, 2014, prior to the amendments
taking effect. (Am. Compl. ¶ 72, ECF No. 2.) Accordingly, the
operative rule at the time read in relevant part:
3.
Commencement of action. - A civil action is
commenced . . . (3) by delivery of a summons and
complaint to an officer for service. When method
(3) is used, the complaint shall be filed with the
court within ten (10) days after the completion of
service.
R.I.D.C.Civ.R. 3 (2014).
11

Assad lacked the ability or intent to file the state collection
action (for example, because her claim was barred by the statute
of limitations or a final judgment).

Assad, in fact, filed the

action and prevailed on Laccinole’s motion to dismiss for improper
service of process.

(See Ex. E to Assad’s Mot., ECF No. 9-6.)

Thus, even construing Laccinole’s factual allegations in the light
most favorable to him, his claim arises out of nothing more than
the lawful commencement of a collection action in state court and
does not violate § 1692d.
2.

False or Misleading Representations in Violation of
15 U.S.C. § 1692e

Laccinole brings Count II under 15 U.S.C. § 1692e, which
generally prohibits debt collectors from using false, deceptive or
misleading

practices

when

collecting

a

debt.

Examples

of

proscribed conduct include lying about the amount or status of a
debt, threatening to take legal action that a collector does not
intend or cannot legally take, and falsely representing that
documents are legal process.

See 15 U.S.C. § 1692e(1)-(16).

Laccinole contends that Assad and Sylvester violated § 1692e by:
(1) threatening, but not filing the collection action; (2) creating
the false impression that Assad had served him legal process; (3)
informing Laccinole that he could avoid court by entering into a
payment plan; and (4) serving only a portion of the complaint on
him.

(See Pl.’s Opp’n to Assad’s Mot. 10-11, ECF No. 32-1.)

12

Particularly when considered with the underlying state collection
action, none of Laccinole’s allegations constitute violations of
§ 1692e.
First, as detailed above, Assad and Sylvester did not falsely
threaten to file a collection action or falsely serve process on
Laccinole.

They served him and filed the complaint.

Further,

while Laccinole alleges that Assad filed the state court action
two days after the ten day deadline (on a Monday rather than a
Saturday),

even

assuming

arguendo

that

this

was

actually

a

procedural error, it did not take away Assad’s legal ability to
sue for the debt, obscure the fact that Assad was commencing the
state court action, or affect Laccinole’s ability to respond to
the action. As the summons clearly stated, Laccinole was “required
to serve upon the plaintiff’s attorney, whose name and address
appears above, an answer to the complaint . . .” within 20 days
after service and file the original answer with the court.
A to Am. Compl., ECF No. 2-1.)

(Ex.

Filing the complaint on Saturday,

September 6, or Monday, September 8, did not change the fact that
Assad was commencing legal action against him to collect a debt he
admits he owed, and did not affect Laccinole’s ability to follow
the instructions on his summons.
procedural

error

unsophisticated

would

not

consumer.

be

Based on this, the alleged

deceptive

or

Gabriele

v.

See

misleading
Am.

Home

to

an

Mortg.

Servicing, Inc., 503 F. App’x 89, 95 (2d Cir. 2012) (violation of
13

procedural

rules

did

not

violate

FDCPA

where

they

“were

not

misleading or deceptive as to the nature or legal status of
[plaintiff’s]

debt,

nor

sophisticated

consumer

would
from

they

have

responding

prevented
to

or

the

disputing

least
the

action.”).
Second, merely informing Laccinole that he could avoid court
by entering into a payment plan for his debt did not constitute
deceptive or misleading conduct. Absent an allegation that Assad’s
offer was false or that it was misleading, the offer does not
violate § 1692e.

See Sutton v. Fin. Recovery Servs., Inc., No.

15-CV-313 (RJD)(CLP), 2015 WL 4662599, at *3 (E.D.N.Y. Aug. 6,
2015) (“As the complaint ‘nowhere alleges that the repayment offer
was not as represented, this pleading is necessarily insufficient
to state a § 1692e(10) claim.’” (internal citation omitted));
Morrison

v.

Hosto,

Buchan,

Prater

&

Lawrence,

PLLC,

No.

5:09CV00146JLH, 2009 WL 3010917, at *3 (E.D. Ark. Sept. 17, 2009)
(letter

attached

to

summons

informing

debtor

that

contacting

attorney to set up a payment plan “may avoid the necessity of you
appearing in Court or filing an answer” was insufficient to support
a claim under § 1692e where complaint lacked allegation that
statement was false).

Here, Laccinole’s Amended Complaint does

not allege that Assad’s offer was false.

He simply alleges that

Assad, through Sylvester, made an offer to set up a payment plan.

14

Accordingly, this allegation does not support a claim under §
1692e.
Third, Laccinole alleges that Assad’s omission of an exhibit
to the complaint violated § 1692e.

According to the complaint,

the attachment was an “accounting” of Laccinole’s debt.

The

complaint itself, however, detailed the debt that Laccinole owed:
$8,075.00 to The Village Lower School.
ECF No. 2-1.)
or

that

the

(See Ex. A to Am. Compl.,

Laccinole does not dispute that he owed this debt,
missing

attachment

in

any

understanding of Assad’s collection action.

way

obscured

his

Further, and more to

the point, the Court does not see how the missing attachment would
mislead an unsophisticated consumer, particularly considering the
simple and clear statement of the debt in the complaint.

See,

e.g., Richardson v. Midland Funding, LLC, Civil No. CIV. CCB-131356, 2013 WL 6719110, at *4 (D. Md. Dec. 18, 2013) aff’d, 583 F.
App’x 124 (4th Cir. 2014) (“A debt collector’s mere failure to
offer evidence sufficient to prove its claim at the time it files
a complaint is not prohibited conduct under the FDCPA.”); Johnson
v. BAC Home Loans Servicing, LP, 867 F. Supp. 2d 766, 781 (E.D.N.C.
2011) (“To the extent Plaintiffs’ allegations imply the filing of
a lawsuit without substantiating documentation is false, deceptive
or misleading, Plaintiffs do not state a claim[.]”).

Like his

prior two allegations, the missing attachment does not render the

15

state collection action misleading and Laccinole has, thus, failed
to state a claim under §1692e.
3.

Unfair Practices in Violation of 15 U.S.C. § 1692f

Count III alleges Defendants violated 15 U.S.C. § 1692f,
prohibiting debt collectors from using unfair or unconscionable
means to collect a debt.
argues

that

impermissibly

Defendants
sought

In support of this claim, Laccinole
failed

attorney’s

to

serve

fees,

and

him

the

attached

complaint,
a

false

affidavit to a subsequent filing in the state collection action.
(Pl.’s Opp’n to Assad’s Mot. 11-12, ECF No. 32-1.)

None of these

allegations state a cognizable claim under § 1692f.
detailed

above,

Laccinole’s

Amended

Complaint

First, as

alleges

that

Sylvester served him (Am. Compl. ¶¶ 72, 81, ECF No. 2.), an
admission confirmed by the state collection action pleadings (see
Ex. A to Assad’s Mot., ECF No. 9-2).

Thus, Laccinole’s assertion

that Defendants failed to serve him with the complaint has no basis
in fact.
Second, that Assad included a request for attorney’s fees in
her complaint does not violate the FDCPA.

As Laccinole points

out, § 1692f(1) prohibits the collection of any amount of money,
including fees, unless the amount is authorized in an agreement or
permitted by law.

Rhode Island law permits the collection of

attorney’s fees for breach of contract actions such as this one.

16

See

R.I. Gen. Laws § 9-1-45.

Accordingly, Assad’s request for

attorney’s fees is permitted by law and does not violate §1692f. 4
Finally, the affidavit Sylvester submitted in state court is
not part of an unfair or unconscionable means of collecting a debt.
To be sure, filings in state court collection actions can violate
§ 1692f.

See Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1031-

32 (9th Cir. 2010) (“[A] complaint served directly on a consumer
to facilitate debt-collection efforts is a communication subject
to the requirements of [15 U.S.C. § 1692f]”).

To do so, however,

the filing must misrepresent the status or the character of the
debt, or constitute some other unfair or unconscionable litigation
tactic such as submitting false or baseless statements to the
court.

See, e.g., Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp.

2d 413, 423-24, n.10 (S.D.N.Y. 2010) (collecting cases); contra
Hemmingsen, 674 F.3d at 820 (collection action pleadings “had more
than enough basis in fact to defeat as a matter of law [plaintiff’s
claims] that [defendant] . . . used ‘unfair or unconscionable means
to collect or attempt to collect any debt,’ § 1692f”).
Here, aside from describing Sylvester’s affidavit as “false,”
Laccinole does not allege that Sylvester lacked personal knowledge

4

Laccinole cites to McCollough v. Johnson, Rodenburg &
Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011), to support his claim
that Assad’s attorney’s fee request violates § 1692f. McCollough,
however, is distinguishable from Laccinole’s claims.
There,
attorney’s fees were not permitted under Montana law. Id. at 950
n. 2. In Rhode Island, as noted above, just the opposite is true.
17

to make his averments, does not specify how Sylvester lied in the
affidavit,

and

does

not

explain

how

those

lies

mislead

him.

Indeed, a fair reading of Sylvester’s affidavit reveals that it
mirrors the allegations in Laccinole’s Amended Complaint: that
Sylvester served Laccinole on August 27, 2014 (compare Am. Compl.
¶ 72, ECF No. 2, with Ex. D ¶¶ 2-6 to Am. Compl., ECF No. 2-4),
that Sylvester underlined the amount Laccinole allegedly owed The
Village Lower School and circled Assad’s telephone number (compare
Am. Compl. ¶¶ 77-78, with Ex. D ¶ 7 to Am. Compl.), and told
Laccinole that he could contact Assad (compare Am. Compl. ¶ 78,
with Ex. D

¶ 9-10 to Am. Compl.).

Like his other assertions, his

argument relating to Sylvester’s affidavit fails to allege a
violation of § 1692f.
4.

Furnishing Certain Deceptive Forms in Violation of
15 U.S.C. § 1692j

Laccinole brings his final FDCPA claim under § 1692j.

This

section prohibits debt collectors from using forms that give the
false impression a non-existent third party is involved in the
debt collection.

15 U.S.C. § 1692j(a); Laccinole v. Twin Oaks

Software Dev., Inc., No. CA 13-716 ML, 2014 WL 2440400, at *7
(D.R.I. May 30, 2014); Avila v. Riexinger & Assocs., LLC, Nos. 13
CV 4349(RJD)(LB), 14 CV 2740(RJD)(LB) 2015 WL 1731542, at *10
(E.D.N.Y. April 14, 2015).

In other words, § 1692j prohibits The

Village Lower School from serving a collection letter on Laccinole

18

with Assad’s name on it if Assad is not involved in the collection
of the debt.
Here, Laccinole alleges that Assad violated § 1692j because
Assad served Laccinole and Assad gave him the false impression
Assad was commencing a collection lawsuit against him.
Opp’n to Assad’s Mot. 12-13, ECF No. 32-1.)

(Pl.’s

Laccinole, thus

concedes that Assad participated in the collection action, a
concession that defeats his § 1692j claim. See Wells v. McDonough,
No. 97 C 3288, 1999 WL 966431, at *5 (N.D. Ill. Sept. 29, 1999)
(no § 1692j claim where attorney “had some actual participation in
the debt collection process” and did not just lend his name to
collection letters). 5
B.

RI FDCPA Claims

Laccinole also brings four claims against Sylvester under the
RI FDCPA.

In Count V, he alleges that Sylvester’s conduct was

harassing and abusive in violation of R.I. Gen. Laws § 19-14.9-6,
in Count VI he alleges that Sylvester made false or misleading
representations in violation of R.I. Gen. Laws § 19-14.9-7, in

5

A review of the summons and complaint confirms that neither
document gave the false impression a third-party was involved in
the debt collection process. The summons clearly states that the
plaintiff in the collection action is “The Village Lower School”
and that Judy B. Assad is “Plaintiff’s Attorney.” (Ex. A to Am.
Compl., ECF 2-1.) Similarly, the complaint clearly spells out the
debt Assad is collecting —$8,075.00 that Laccinole owes the school.
(Ex. B to Am. Compl., ECF No. 2-2.) Assad then signs the complaint
on behalf of her client, The Village Lower School. (Id.)
19

Count VII he alleges that Sylvester used unfair and unconscionable
means to collect a debt in violation of R.I. Gen. Laws § 19-14.98, and in Count VIII, he alleges that Sylvester furnished a
deceptive form while attempting to collect a debt in violation of
R.I. Gen. Laws § 19-14.9-11.

Sylvester argues that each of these

claims should fail for two reasons.

First, he argues that he is

immune from suit under R.I. Gen. Laws § 45-16-4.5, which grants
constables immunity from civil actions for “acts of commission or
omission arising directly out of his or her negligent serving or
executing the process . . . .”

R.I. Gen. Laws § 45-16-4.5.

In

the alternative, Sylvester argues that Laccinole’s RI FDCPA claims
fail because the statute exempts constables from its definitions
of debt collectors.

See R.I. Gen. Law § 19-14.9-3(5)(d).

As noted above, the process server exemption from FDCPA
liability only extends to the server’s duties as a messenger
serving process.

“[A] person who goes beyond being merely a

messenger in serving legal process and engages in prohibited
abusive or harassing activities to force an individual to repay a
debt is no longer exempt under the legal process server exception.”
Andrews v. S. Coast Legal Servs., Inc., 582 F. Supp. 2d 82, 88 (D.
Mass. 2008).

Neither party has addressed the application of this

doctrine to R.I. Gen Law § 45-16-4.5 or the RI FDCPA and the Court
need not decide the issue.

The provisions of the RI FDCPA under

which Laccinole brings his claims against Sylvester are nearly
20

identical to the FDCPA claims he brought against both Defendants.
Compare R.I. Gen. Laws § 19-14.9-6, with 15 U.S.C. § 1692d; R.I.
Gen. Laws § 19-14.9-7, with 15 U.S.C. § 1692e; R.I. Gen. Law § 1914.9-8, with 15 U.S.C. § 1692f; R.I. Gen. Law § 19-14.9-11, with
15 U.S.C. § 1692j.

Accordingly, setting aside the immunity issue,

Laccinole’s RI FDCPA claims fail for the same reasons his FDCPA
claims fail.
C.

RI DTPA Claims

In Count IX, Laccinole alleges that Assad and Sylvester’s
conduct violated the RI DTPA.

The RI DTPA is a consumer protection

statute which prohibits a number of activities that are “unfair or
deceptive.”

Park v. Ford Motor Co., 844 A.2d 687, 692 (R.I. 2004).

To adequately plead a claim, Laccinole must allege (1) that he was
the subject of a deceptive practice or act in connection with the
purchase of a service; and (2) that he suffered an ascertainable
loss of money or property as a result of the deceptive practice.
R.I. Gen. Laws § 6-13.1-5.2; Twin Oaks, 2014 WL 2440400 at *8,
*12.
Laccinole’s complaint fails on the first element. For conduct
to be deceptive it must, among other things, be likely to mislead
a reasonable consumer and it must be material to a consumer’s
choices or conduct.
2014).

Long v. Dell, Inc., 93 A.3d 988, 1003-04 (R.I.

As detailed above, Laccinole has not alleged any facts

that would mislead an objectively unsophisticated consumer, a more
21

stringent standard than the reasonableness standard applied to RI
DTPA claims. Like with his FDCPA claim, Laccinole has failed to
state viable claim in Count IX.
D.

Fraud Claims

In Count X, Laccinole brings a common law fraud claim against
Assad and Sylvester.

To establish a prima facie case of fraud in

Rhode Island, a plaintiff must allege facts to show that (1) the
defendant made a false representation; (2) the defendant intended
to induce the plaintiff to rely on that representation; and (3)
the plaintiff justifiably relied on the representation to his or
her detriment.

Women’s Dev. Corp. v. City of Central Falls, 764

A.2d 151, 160 (R.I. 2001).

Further, to survive a motion to

dismiss, a plaintiff must meet Fed. R. Civ. Pro. 9(b)’s heightened
pleading standard, which requires plaintiffs to “specify the who,
what,

where,

and

representation.”

when

of

the

allegedly

false

or

fraudulent

Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374

F.3d 23, 29 (1st Cir. 2004).
Here, it is arguable whether Laccinole’s Amended Complaint,
as clarified by his Opposition Memorandum, meets Rule 9(b)’s
heightened pleading standard.

As Assad points out, rather than

specify what conduct supports his fraud claim, Laccinole merely
lists the paragraph numbers for numerous paragraphs in his Amended
Complaint under each element of his claim.
Assad’s Mot. 16-17, ECF No. 32-1.)
22

(See Pl.’s Opp’n to

Many of these paragraphs

contain

no

factual

allegations

and

Laccinole

provides

no

explanation as to why the factual allegations he does reference
amount to fraud.
Nevertheless, setting aside any pleading deficiencies, the
facts of this case are uncomplicated and fail to support numerous
elements of Laccinole’s common law fraud claim. First, as detailed
above, Defendants did not make false representations to Laccinole.
They served Laccinole with a lawsuit outlining a debt he owed and
filed

that

lawsuit.

Second,

Laccinole

has

failed

to

allege

sufficient facts that he relied on Defendants’ representations to
his detriment.

Laccinole cites to only one allegation that even

references his reliance: “Plaintiff did in fact rely upon such
misrepresentation, concealment and omissions to his detriment.”
(Am. Compl. ¶ 109, ECF No. 2.)

This language merely parrots the

language of his fraud claim’s third element, and thus, does nothing
to support his claim even if the stricter Rule 9(b) pleading
standard did not apply. Laccinole has not adequately pled multiple
elements of his fraud claim and, thus, has failed to state a claim.
E.

Civil Conspiracy Claims

Count XI advances a civil conspiracy claim in an attempt to
hold Assad, Sylvester, and The Village Lower School vicariously
liable

for

conspiracy,

each
a

other’s

plaintiff

conduct.
must

To

allege

adequately

that

“(1)

plead

there

civil

was

an

agreement between two or more parties and (2) the purpose of the
23

agreement was to accomplish an unlawful objective or to accomplish
a lawful objective by unlawful means.”

Smith v. O’Connell, 997 F.

Supp. 226, 241 (D.R.I. 1998) (citing Stubbs v. Taft, 149 A.2d 706,
708–09 (1959)). Further, “[c]ivil conspiracy is not an independent
basis of liability, but merely a means of establishing joint
liability for tortious conduct. Thus, a civil conspiracy claim
requires a valid underlying intentional tort theory.”

Guilbeault

v. R.J. Reynolds Tobacco Co., 84 F. Supp. 2d 263, 268 (D.R.I. 2000)
(citing ERI Max Entm’t, Inc. v. Streisand, 690 A.2d 1351, 1354
(R.I. 1997)).

Here, as detailed in this Order, Laccinole has not

pleaded any valid theories of recovery, and, thus, his civil
conspiracy claim cannot survive.
F.

Right to Privacy Claims

In Count XII, Laccinole alleges that Assad and Sylvester
violated Rhode Island’s statutory right to privacy when they served
him with the state collection action.
No. 2.)

(See Am. Compl. ¶ 167, ECF

Rhode Island’s privacy law provides, inter alia, that

individuals have a right “to be secure from unreasonable intrusion
upon one’s physical solitude or seclusion.”
1-28.1(a)(1).

R.I. Gen. Laws § 9-

“To establish a claim under [§ 9-1-28.1(a)(1)],

some invasion of a person’s physical solitude or seclusion must
have occurred.”

Swerdlick v. Koch, 721 A.2d 849, 858 (R.I. 1998).

Conduct that occurs in full public view, even if in the vicinity

24

of an individual’s residence, does not intrude on a person’s
physical solitude or seclusion.
Here,

Laccinole

makes

Id. at 857.

clear

in

his

Opposition

that

the

offensive conduct — being served with legal process — occurred in
full public view: “Sylvester appeared with a badge, knocked on
Plaintiff’s door, asked him to step outside . . .” (Pl.’s Opp’n to
Assad 17-18, ECF No. 32-1.)

This type of public conduct does not

support an invasion of privacy claim.
G.

Civil Liability for Crimes and Offenses

In Count XIII, Laccinole attempts to recover civil damages
for Assad and Sylvester’s alleged criminal conduct under R.I. Gen.
Laws § 9-1-2.

Section 9-1-2 allows plaintiffs to bring civil

claims to recover damages incurred from criminal offenses.
R.I. Gen. Laws § 9-1-2.

See

Thus, to plead a claim under § 9-1-2,

Laccinole must sufficiently plead an underlying criminal offense.
See, e.g., Getty Petroleum Mktg., Inc. v. 2211 Realty, LLC, No.
CIV.A. 11-40003-FDS, 2012 WL 527655, at *7 (D. Mass. Feb. 16, 2012)
(“Although ‘[i]t is not necessary for the [claimant] to allege the
commission of the crime, which is the basis of his claim for
damages, with the technical accuracy required in the criminal
complaint[,]

.

.

.

it

must

be

described

sufficiently

for

identification.’” (quoting Williams v. Smith, 28 R.I. 531, 68 A.
306, 308–309 (R.I. 1907)).

Laccinole alleges that Assad and

Sylvester acted criminally when they engaged in the unauthorized
25

practice of law and failed to register as debt collectors.

As

detailed above, Laccinole’s Amended Complaint fails to allege
facts to support these allegations and, as a result, his civil
liability claim fails with them.
IV.

Dismissal with Prejudice
None of Laccinole’s thirteen counts state a claim upon which

relief can be granted.

The question, however, remains whether the

Court should dismiss them with prejudice or grant him leave to
amend.

The former is appropriate here. First, Laccinole’s account

of the conduct that gives rise to this lawsuit, particularly when
considered

with

comprehensive.

the
His

state

collection

Amended

Complaint

action

pleadings,

includes

over

is
179

paragraphs, and four attachments. He then provides further details
in support of his claim in his Opposition to both Assad and
Sylvester’s motions.

Even considering all of this information in

the light most favorable to Laccinole, he has failed to state
claims under the FDCPA, RI FDCPA, RI DTPA, and his other causes of
action.

Second, while Laccinole is pro se, this Court agrees with

Judge Lisi that he is a very sophisticated pro se Plaintiff.
Oaks, 2014 WL 2440400 at *1.

Twin

Indeed, he has filed fourteen

actions, including the three actions associated with The Village
Lower School debt, which seek relief under the FDCPA, RI FDCPA,
and other statutes for practices his creditors use to collect his

26

debts. 6

In short, this is not Laccinole’s first rodeo.

And, in

any event, based on the detailed pleadings before the Court,
granting him leave to amend would be futile.

Brown v. Rhode

Island, 511 F. App’x 4, 5 (1st Cir. 2013).

6

See Laccinole v. SageStream, LLC, C.A. No. 15-549S (D.R.I.
December 23, 2015) (complaint alleges violations of the RI DPTA;
motion to remand pending); Laccinole v. IC Sys., Inc., C.A. No.
15-337M (D.R.I. August 11, 2015) (complaint alleges violations of
FDCPA, RI–FDCPA, and RI–DTPA; stayed for arbitration); Laccinole
v. Cavalry Portfolio Servs., LLC, C.A. No. 15-141S (D.R.I. April
7, 2015) (complaint alleges violations of FCRA, FDCPA, and RI–
DTPA; dismissed prior to answer); Laccinole v. Collect Am., LTD,
C.A. No. 15-131ML (D.R.I. April 2, 2015) (complaint alleges
violations of FDCPA, RI–FDCPA, and RI–DTPA; dismissed prior to
answer) Laccinole v. Recovery Res., LLC, C.A. No. 14-455S (D.R.I.
October 14, 2014) (complaint alleges violations of FDCPA, RI–
FDCPA, and RI–DTPA; remanded to state court due to improper
removal), Laccinole v. Twin Oaks Software Dev., Inc., C.A. No. 13716S (D.R.I. September 25, 2013) (complaint alleges violations of
FDCPA, RI–FDCPA, and RI–DTPA; defendant granted summary judgment);
Laccinole v. PFS III, LLC, C.A. No. 13–434S (D.R.I. June 11, 2013)
(complaint alleges violations of FDCPA, RI–FDCPA, RI–DTPA and
TCPA; dismissed prior to answer); Laccinole v. United Recovery
Sys., LP, C.A. No. 13–291S (D.R.I. Apr. 30, 2013) (complaint
alleges violations of FDCPA, RI–FDCPA, RI–DTPA, FCRA and Texas
state law claims; dismissed prior to answer); Laccinole v. Prof'l
Account Mgmt., LLC, C.A. No. 13–86S (D.R.I. Feb. 4, 2013)
(complaint alleges violations of FDCPA and RI–DTPA; dismissed
prior to answer); Laccinole v. MB ROI, C.A. No. 12–516L (D.R.I.
Jul. 12, 2012) (complaint alleges violations of FDCPA and RI–DTPA;
dismissed prior to answer); Laccinole v. Healthcare Revenue
Recovery Grp., LLC, C.A. No. 12–283S (D.R.I. Apr. 13, 2012)
(complaint alleges violations of FDCPA and RI–DTPA; dismissed
prior to answer).

27

V.

Conclusion
For the forgoing reasons, the Court GRANTS Assad’s Motion for

Judgment on the Pleadings (ECF No. 9) and Sylvester’s Motion to
Dismiss (ECF No. 12), and hereby dismisses Laccinole’s claims with
prejudice, the parties to bear their own fees and costs.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: March 7, 2016

28