Giudice v. Strauss, Factor, Laing & Lyons et al

Filing 5

ORDER granting 2 Motion for Judgment on the Pleadings; terminating 3 Motion to Stay; and dismissing Plaintiff's complaint with prejudice. So Ordered by Chief Judge William E. Smith on 11/30/2015. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
JOHN GIUDICE,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 15-94 S
)
LYNDA LAING; STRAUSS, FACTOR,
)
LAING & LYONS,
)
)
Defendants.
)
___________________________________)
ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendants’ Motion for Judgment on the
Pleadings (“Def.s’ Mot.”) (ECF No. 2).

Plaintiff has not filed an

opposition, and the time for doing so has passed.

For the reasons

that follow, the Court hereby GRANTS Defendants’ motion.
Plaintiff’s Complaint alleges violations of the Fair Debt
Collections Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”)
based on Defendants’ filing of an entry of appearance and an answer
to

a

counterclaim

disposition

of

in

state

Plaintiff’s

court,
claims

and
in

a

motion

arbitration.

for

summary

Plaintiff

claims that “Defendants misled the Plaintiff, and indeed the Court,
by taking actions as legal professionals which had been illegal
for nearly three years”; that “Defendants continued to prosecute
in a venue which had lost subject matter jurisdiction, posing a
threat to deny the Plaintiff’s right to arbitrate”; and finally,

that “Defendants acted unfairly by continuing to prosecute in a
venue to which the Plaintiff was not expected or legally required
to return.”

(Compl. ¶¶ V1a, V2a, V3a, ECF No. 1-1.)

The FDCPA “applies to attorneys who ‘regularly’ engage in
consumer-debt-collection
consists of litigation.”

activity,

even

when

that

activity

Heintz v. Jenkins, 514 U.S. 291, 299

(1995). However, Plaintiff fails to explain how any of Defendants’
filings were deceptive or misleading.

Instead, it appears that

“Defendants were simply filing ‘ordinary court-related documents’
to ‘preserv[e] the creditor[’s] judicial remedies.’”

(Defs.’ Mot.

12 (quoting Heintz, 514 U.S. at 296).)
The

notice

procedure”

and

of
the

appearance
answer

was

to

“required

Plaintiff’s

by

state

counterclaim

court
“was

necessary under state procedures to protect Defendants’ client
from being defaulted.”

(Id. at 19.)

The motion for summary

disposition of Plaintiff’s claims in arbitration was likewise a
“legitimate effort[] to protect [Defendants’] client’s remedies,”
as Defendants contend that Plaintiff’s claims are outside the scope
of the arbitration clause and barred by the statute of limitations.
(Id.)

Filing a motion in the arbitration proceeding was the

appropriate procedure for mounting these defenses.

Furthermore,

even if the arbitrator denies Defendants’ motion for summary
disposition, that motion will not suddenly violate the FDCPA,
2

absent some evidence of an attempt to mislead.

See Heintz, 514

U.S. at 296 (“[W]e do not see how the fact that a lawsuit turns
out ultimately to be unsuccessful could, by itself, make the
bringing

of

it

an

‘action

that

cannot

legally

be

taken.’”);

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

Discover’s

unpaid

that

[Defendant’s]

account

in

aggressive

litigation

pursuit

violated

of

statutory

prohibitions targeted at abusive pre-litigation practices.”). 1
For the foregoing reasons, Defendants’ Motion for Judgment on
the Pleadings is hereby GRANTED and Plaintiff’s Complaint is
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: November 30, 2015

1

Cf. Gionis v. Javitch, Block & Rathbone, LLP, 238 F. App’x
24, 28 (6th Cir. 2007) (law firm violated FDCPA by filing affidavit
stating that defendant could recover its attorneys’ fees “to the
extent permitted by applicable law,” where the applicable law
clearly prohibited attorneys’ fees for collection of consumer
debt); Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 229 (4th Cir.
2007) (FDCPA applied to plaintiff’s allegation that law firm’s
summary judgment motion falsely represented the amount of his debt
and illegally sought attorney’s fees).
3