VAQUERO v. FREDERICK J. HANNA & ASSOCIATES, P.C., No. 2:2013cv00641 - Document 12 (D.N.J. 2013)

Court Description: OPINION fld. Signed by Judge Dennis M. Cavanaugh on 11/6/13. (sr, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ARTURO VAQUERO on behalf of himself and all others similarly situated. Hon. Dennis M. Cavanaugh OPINION Plaintiff, Civil Action No. 2:13-cv-00641 (DMC)(JBC) V. FREDERICK J. HANNA & ASSOCIATES, P.C.. Defendant. i)ENNIS M. CAVANAUGH. U.S.D.J.: This matter comes before the Court upon the Motion of Frederick J. 1-lanna & Associates. P.C. ( Defendant ) to Dismiss the Complaint of Arturo Vaquero ( Plaintiff ), pursuant to FED. R. Civ. P. 1 2(h)(6). Pursuant to FED. R. Civ. P 78. no oral argument was heard. Based on the 1ollowng and ihr the reasons expressed herein. Defendant s Motion is granted. I. 1 BACKGROUND On January 3 1 2010, Defendant sent a letter to Plainti IT (the Letter ) regarding a debt allegedly owed by Plaintiff to Chase Bank USA, N.A ( Chase Bank ). The Letter, which was printed thirty . on . . Defendant s letterhead, states the following: iJniess you notify this office within days after receiving this notice that you dispute the validity of the debt . . . this office will assume this debt is valid. The Letter also states that [tjhis is an attempt to collect a debt The facts from this section are taken from the larties pleadings. and [a]t this time, no attorney with this firm has personaHv reviewed the particular circumstances of your account. Finally, the Letter includes the following statement: it you fail to contact this office, [Chase Bank] may consider additional remedies to recover the balance due. Plaintiff alleges that Defendant violated the Fair Debt Collection Practices Act ( Fi)CPA ). 1 5 U.S.C. § 1 692 ci seq. by sending the letter because Defendant did not inibrm Plaintiff that it is a debt collector and because the contents of the Letter imply that it is a communication . . . from an attorney which it is in fact not. Plaintiff also alleges that the Letter violated the FDCPA because Defendant did not intend to take legal action against Plaintiff and Defendant could not take legal action because it does not employ any attorney licensed to practice law in this state. Plaintiff tiled the Complaint on January 31. 2013 ( Compl.. ECF No. I). Defendant tiled the instant Motion to Dismiss on April 12. 2013 (ECF No. 8). Defendants Motion is unopposed. IL STANDARD OF REVIEW In deciding a motion under FED. R. Civ. P. 1 2(b)(6), the District Court is required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [plaintiffi. Phillips v. Cntv. of Allegheny. 515 F.3d 224. 228 (3d Cir. 2008). [A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations. Bell Atl. Corp. v. Twomblv. 550 U.S. 544. 555 (2007). However. the plaintilis obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions and a formulaic recitation of the elements of a cause of action will not do Id. On a motion to dismiss, courts are not hound to accept as true a legal conclusion couched as a foctual allcgation Papasan Allain 478 U S 265 286 (1986) Plaintitfs complaint is subject to thc heightened pleading standard set forth in Asheroft v. lgbaL To survive a motion to dismiss, a complaint must contain sufilcient factual mailer, accepted as true, to state a claim to relief that is plausible on its face A claim has thcial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense, But where the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct. the complaint has alleged but it has not show[nf that the pleader is entitled to relief. . . . . . . - 556 U.S. 662, 678-679 (2009) (quoting Twomjx, 550 U.S. at 557, 750). III. i)ISCUSSION Plaintiff alleges that Defendant violated various subsections of § 1692e of the FDCPA by sending the Letter. A threshold requirement for application of the FDCPA is that the piohihited practices arc used in an attempt to collect a debt Zimmeirnan v H130 Affiliate $34 F.2d 1163. 1167 (3d Cir. 1987). Therefore. to sustain a claim under the FDCPA. a plaintiff must demonstrate that the alleged debt falls within the meaning of FDCPA § I 692a(5), which defines debt as any obligation or alleged obligation ola consumer to pay money arising out of a transaction in which the money. property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. Plaintilis sole allegation to plead the existence of a debt under FDCPA § 1692a(5) is that Defendant sought to collect from [Plaintifti a debt allegedly due to [Chase Bank] arising from transactions incurred for personal. family. or household purposes (Compl. ¶111). In a separate case against I)efendant tiled by the same attorney who is representing the instant Plaintiff this Court rejected almost identical language as insufticient to withstand Vaigas a motion to dismiss. Fiedenek J Hanna & Assç. No 12-3802 slip op at 3 4 (D N J feb 14 2013) (finding that the plaintiffs conclusorv allegation that the debt at issue arises out of an alleged transaction which was primarily for personal. family or household purposes lacked the sufficiency required to seek relief under the FDCPA ). A number of other courts have reached the same Conclusion based on similar language. See Fenn v. CIR. Law Offices. No. 1: 1 ()-CV 01903. 2011 WL 2621002, at *3 (E.D. Cal. June 29, 201 1) (stating that the plaintilis allegation that the debt was for services that were primarily for family. personal, or household purposes was a legal conclusion[i. not [a] fact[] ): Sullivan v. CTI Collection Servs.. No. 809-C V-365-T- 30, 2009 WL 1587588, at *2 (M.D. Fla, June 5, 2009) (stating that the plaintiff s allegation that he allegedly owes a debt as that term is defined by 15 U.S.C. l692a(5f is exactly the type ol thieadhare iccital[] that the Supremc Couit sought to prevent in ) Nicholas v CMR1 I in Se1\ Inc No 08-3857 2009 \ 1 1652275 at 2 (D N I Tunc 11 2009) ( B limiting 1t Lll to the language of the statutes and failing to provide any facts specific to [the plaintiffj, the [c]omplaint. as currently constituted, cannot meet the requirements of Rule 8(a)(2) [and I k bal 1 and this Court grants Defendant s motion with respect to Plaintiffs FDCPA claims. ). Accordingly. Deflndant s Motion to Dismiss must be granted. IV. CONCLUSION For the foregoing reasons. Defendant s Motion to I)ismiss is granted. An appropriate order follows this Opinion. Dennis M. Cavanaugh, U. Date: Original: cc: November 2013 Clerk s Office Hon. James B. Clark U.S.M.J. All Counsel of Record File 4 . .1.

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