Morant v. Miracle Financial, Inc., No. 2:2011cv04140 - Document 9 (E.D.N.Y. 2012)

Court Description: MEMORANDUM & ORDER granting in part and denying in part 4 Motion for Judgment on the Pleadings; granting in part and denying in part 5 Motion to Amend/Correct/Supplement. For the foregoing reasons, it is hereby ORDERED that: (1) Defendant&# 039;s motion to dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiff's claims arising under Section 1692b are hereby DISMISSED WITH PREJUDICE; and (2) Plaintiff's motion to amend her Complaint is GRANTED IN PART and DENIED IN PART: Plaintiff is GRANTED leave to amend her claims under Section 1692d only. The Clerk of the Court is directed to docket the proposed Amended Complaint at Docket Entry 5-2 as a separate docket entry entitled "Amended Complaint." So Ordered by Judge Joanna Seybert on 9/17/12. C/ECF (Valle, Christine)
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Morant v. Miracle Financial, Inc. Doc. 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------X MARGARET MORANT, Plaintiff, MEMORANDUM & ORDER 11-CV-4140(JS)(GRB) -againstMIRACLE FINANCIAL, INC., Defendant. --------------------------------------X APPEARANCES For Plaintiff: Joseph Mauro, Esq. The Law Office of Joseph Mauro, LLC 306 McCall Avenue West Islip, NY 11795 For Defendant: Gregory J. Gallo, Esq. Pellegrino Law Firm 475 Whitney Avenue New Haven, CT 06511 SEYBERT, District Judge: Plaintiff Margaret Morant (“Plaintiff”) commenced this action against Defendant Miracle Financial, Inc. (“Defendant” or “Miracle”) asserting violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). before the Plaintiff’s Court is cross-motion Defendant’s to amend motion her to Pending dismiss Complaint. For and the following reasons, both motions are GRANTED IN PART and DENIED IN PART. BACKGROUND1 Plaintiff asserts that, in or around March 2011, Miracle began calling her residence in an attempt to collect an alleged debt from a person named Theresa Brown. On or about April 19, Miracle’s representatives. 2011, Plaintiff spoke (Compl. ¶ 14.) (Compl. ¶ 10.) with one of She informed him or her that Miracle had the wrong number and demanded that Miracle stop calling her. conversation, thereafter. (Compl. ¶¶ 15-16.) Miracle called Notwithstanding this Plaintiff “several” times (Compl. ¶¶ 17-18.) On August 25, 2011, Plaintiff commenced this action asserting violations of four provisions of the FDCPA--Sections 1692d, 1692d(5), 1692b(1), and 1692b(3). (Docket Entry 1.) On October 11, 2011, Defendant answered the Complaint (Docket Entry 3), and on November 9, 2011, Defendant moved to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Entry 4). On November 19, 2011, Plaintiff filed a motion to amend her Complaint. (Docket Entry 5.) Plaintiff does not assert any new claims in her proposed Amended Complaint; rather, she amplifies the facts as stated in her original Complaint. On November 22, 2011, Plaintiff filed her opposition to Defendant’s 1 The following facts are taken from Plaintiff’s Complaint and are presumed to be true for the purposes of this Memorandum and Order. motion to dismiss. (Docket Entry 6.) 2 Defendant has neither opposed Plaintiff’s motion to amend nor submitted anything further in support of its motion to dismiss. DISCUSSION The Court will address Defendant’s motion to dismiss before turning to the merits of Plaintiff’s motion to amend. I. Motion to Dismiss A. Standard of Review under Rule 12(c) The standard for deciding a motion pursuant to Rule 12(c) “is identical to that failure to state a claim.” Beverly Hills, 259 F.3d omitted). To survive plaintiff must plead a of a Rule 12(b)(6) motion for Patel v. Contemporary Classics of 123, 126 Rule 12(b)(6) sufficient (2d Cir. 2001) motion factual to (citations dismiss, allegations in a the complaint to “state a claim [for] relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A complaint does not need “detailed factual allegations,” but it demands “more than labels and conclusions, and a formulaic elements of a cause of action will not do.” recitation of the Id. at 555. In addition, the facts pled in the complaint “must be enough to raise a right Determining to relief whether a above plaintiff the speculative has met her level.” burden Id. is “a context-specific task that requires the reviewing court to draw on its judicial experience and 3 common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citation omitted); accord Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). B. Alleged FDCPA Violations The FDCPA was enacted to “eliminate abusive debt collection practices by debt collectors, [and] to insure that those debt collectors who refrain from using abusive collection practices are not competitively disadvantaged.” U.S.C. § 1692(e). Amended Complaint, debt 15 Plaintiff, in both her Complaint and proposed asserts that Defendant violated 1692d, 1692d(5), 1692b(1), and 1692b(3) of the FDCPA. Sections The Court will address the claims asserted under Sections 1692d and 1692b separately. 1. Claims under Section 1692d Plaintiff asserts two claims under Section 1692d: one for a violation of subsection (5) and one under the section generally. Section 1692d provides, in relevant follows: A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of 4 part, as the foregoing, the following conduct is a violation of this section: (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. Defendant makes three arguments in support of dismissal of these claims. First, Defendant appears to be arguing that there is no cause of action for a violation of Section 1692d generally and that, to state a claim, Plaintiff must allege a violation of a specific subsection. The Court disagrees. “[T]he list of specified violations is explicitly not exhaustive; it is not intended to ‘limit[] the general application’ of the provision's sweeping prohibition of conduct ‘the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.’” Bank v. Pentagroup Fin., L.L.C., No. 08-CV-5293, 2009 WL 1606420, at *5 (E.D.N.Y. June 9, 2009) (second 1692d). alteration Accordingly, in the original) Court finds (quoting this 15 U.S.C. argument to § be without merit. Second, Defendant argues that the Complaint fails to state a claim under Section 1692d(5) because there is nothing in the Complaint to suggest that the calls were made “repeatedly or continuously with intent to annoy, abuse, or harass” Plaintiff. 5 (Def. Mot. 7.) The Court disagrees. Plaintiff asserts that Miracle called her “several times,” that each time she informed Miracle that the debtor could not be reached at that phone number, and that Miracle nonetheless called Plaintiff “several” more times thereafter. found similar dismiss. (Compl. ¶¶ 11-13, 15-18.) allegations sufficient to survive Courts have a motion to See, e.g., Shand-Pistilli v. Prof’l Account Servs., Inc., No. 10-CV-1808, 2010 WL 2978029, at *4 (E.D. Pa. July 26, 2010) (holding that allegations that the defendant made “continuous calls” to the plaintiff’s home after the plaintiff asked the defendant to stop calling stated a plausible claim for relief under Section 1692d(5)); Stuart v. AR Res., Inc., No. 10CV-3520, 2011 WL 904167, at *3 (E.D. Pa. Mar. 16, 2011) (finding that allegations of “repeated calls by Defendants, use of profane language, and refusal to cease calling” stated a claim under Section Collection 1692d(5)); Corp., No. cf. Kavalin 10-CV-0314, 2011 v. WL Global Credit 1260210, at & *4 (W.D.N.Y. Mar. 31, 2011) (“Courts have held that the question whether a debt collector’s conduct in attempting to contact a debtor by violation telephone of these amounts to provisions harassment ultimately or turns annoyance on in evidence regarding volume, frequency, pattern, or substance of the phone calls.”). 6 Finally, Defendant argues that Plaintiff does not have standing to bring these claims. The Court disagrees. Section 1692k, the general enforcement provision of the FDCPA, provides that “[e]xcept as otherwise provided by this section, any debt collector who subchapter fails with to respect person . . . .” comply to with any any person provision is of to liable this such 15 U.S.C. § 1692k(a) (emphasis added). Courts have interpreted this language broadly to allow “[a]ny person who comes in contact with proscribed debt collection practices” to bring a claim. Supp. 174, 175 Riveria v. MAB Collections, Inc., 682 F. (W.D.N.Y. 1988) (citation omitted); see also Whatley v. Universal Collection Bureau, Inc., 525 F. Supp. 1204, 1206 (N.D. Ga. 1981) (holding that “‘any person,’ as used in 15 U.S.C. § 1692k(a) includes persons . . . who claim they are harmed by proscribed debt collection practices directed to the collection of another person’s debt”); Kerwin v. Remittance Assistance Corp., 559 F. Supp. 2d 1117, 1123 (D. Nev. 2008) (“Persons who do not owe money but are subject to improper practices by debt collectors are covered by the FDCPA.”). Therefore, the Court denies Defendant’s motion dismiss Plaintiff’s claims under Sections 1692d and 1692d(5). 2. Claims under Section 1692b Section 1692b provides in relevant part as follows: 7 to Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall-(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer; [and] (3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information . . . . Defendant argues that Plaintiff’s claims under this section must be dismissed because (i) Plaintiff does not have standing and (ii) Plaintiff never alleges that Defendant telephoned her residence “for the purpose of acquiring location information” about the debtor. Because the Court finds that Plaintiff does not have standing to assert these claims, it will not address the merit of Defendant’s other argument. Before however, the getting Court must to Defendant’s first address standing a argument, threshold issue. Section 1692b contains a list of exceptions to Section 1692c(b), which prohibits a debt collector from communicating, in connection with the collection of a debt, with anyone other than the “consumer.” § 1692b is thus 15 U.S.C. § 1692c(b). a violation of 8 § “Noncompliance with 1692c(b), and not an independent Adjustment 2008). violation Co., Inc., of 579 the F. Act.” Supp. Thomas 2d 1290, v. 1297 Consumer (E.D. Mo. Therefore, the Court will analyze Plaintiff’s claims as if they were properly brought under Section 1692c(b). Although generally “any person” may bring a claim for a violation of the FDCPA, see supra page 7, courts have held that only a “consumer” has standing to bring a claim for relief under Section 1692c. consumers lack See Bank, 2009 WL 1606420, at *4 (“Non- standing to sue under 1692c.”); see also Montgomery v. Huntington Bank, 346 F.3d 693, 696–97 (6th Cir. 2003) (“Only a ‘consumer’ has standing to sue for violations under 15 U.S.C. § 1692c.” (internal quotation marks and citation omitted)); Mathis v. Omnium Worldwide, No. 04-CV-1614, 2006 WL 1582301, at “Consumer” *4-5 is (D. Or. defined by June the 4, 2006) FDCPA as (collecting “any natural obligated or allegedly obligated to pay a debt.” 1692a(3). cases). person 15 U.S.C. § Here, Plaintiff does not assert that she was the alleged debtor, and, accordingly, she does not having standing to bring these claims. Therefore, the Court grants Defendant’s motion to dismiss these claims. II. Motion to Amend Amendments to pleadings are governed by Rule 15 of the Federal Rules of Civil Procedure, which provides that the Court should grant leave to amend “when justice so requires.” 9 FED. R. CIV. P. 15(a)(2). Leave to amend should be granted unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. See Milanese v. Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). To determine whether an amended claim is futile, courts analyze whether the proposed pleading would withstand a articulated above. motion to dismiss under Rule 12(b)(6) See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeal, 282 F.3d 83, 88 (2d Cir. 2002). Here, Plaintiff’s Amended Complaint is substantially similar to her original Complaint. It asserts violations of 15 U.S.C. §§ 1692d, 1692d(5), 1692b(1), 1692b(3) arising out of Miracle’s calling Plaintiff in an attempt to collect an alleged debt from Theresa Brown. Accordingly, the Court finds that the proposed amendments with respect to the claims under Section 1692b are futile, and, to the extent that Plaintiff seeks leave to amend those claims, her motion is denied. Plaintiff’s proposed amendments to the claims under Section 1692d, on the other hand, are not futile for the reasons discussed above. Therefore, the Court grants Plaintiff claims. 10 leave to amend those CONCLUSION For the foregoing reasons, it is hereby ORDERED that: (1) Defendant's motion to dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiff’s claims arising under Section 1692b are hereby DISMISSED WITH PREJUDICE; and (2) Plaintiff’s motion to GRANTED IN PART and DENIED IN PART: amend her Complaint is Plaintiff is GRANTED leave to amend her claims under Section 1692d only. The Clerk of the Court is directed to docket the proposed Amended Complaint at Docket Entry 5-2 as a separate docket entry entitled “Amended Complaint.” SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 17, 2012 Central Islip, New York 11