A. The defendants' motion to dismiss
1. Standard of review
On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) 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." Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994). The Second Circuit stated that in deciding a Rule 12(b)(6) motion, a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also International Audiotext Network, Inc. v. AT&T, 62 F.3d 69, 72 (2d Cir. 1995); Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).
It is not the Court's function to weigh the evidence that might be presented at a trial; the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the Court must accept the allegations of the complaint as true, see Leeds v. Meltz, 85 F.3d 51 (2d Cir. 1996); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 110 S. Ct. 723, 107 L. Ed. 2d 743 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Leeds, 85 F.3d at 51; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 109 S. Ct. 1642, 104 L. Ed. 2d 158 (1989).
The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," Fed. R. Civ. P. 8(f).
The issue before the Court on a Rule 12(b)(6) motion "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, U.S. , 117 S. Ct. 50, 136 L. Ed. 2d 14 (1996) (citing Scheuer, 416 U.S. at 235-36). Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal under Rule 12(b)(6). Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (citing Scheuer, 416 U.S. at 236).
Initially, the Court notes that the plaintiff submits documents obtained through discovery in opposition to the defendants' motion to dismiss. Since these documents were not incorporated by reference and the subject matter is not such that the Court is able to take judicial notice, the Court will not consider such submissions in rendering a decision on the defendants' motion.
It is within this framework that the Court addresses the present motion to dismiss.
2. The motion
Initially, the Court notes that the Second Amended Complaint states that the "plaintiff incorporates all of the allegations of her Amended Complaint into the Second Amended Complaint for purposes of preservation of any dismissed issues or parties for appeal." Second Amended Complaint at 1 n.1. The defendants maintain that they "should not have to speculate as to which allegation can or should be ignored." Defendants' Motion for Partial Dismissal of the Second Amended Complaint at 3 n.1. The Court agrees. The Court does not comprehend the effect of incorporating all allegations of a complaint that has been dismissed and superceded by an amended complaint. It is unclear whether the defendants are required to respond to allegations that are incorporated by reference into the Second Amended Complaint. The plaintiff has not chosen to amend her claim as against NEC. However, since some allegations regarding NEC are included in the Second Amended Complaint, the Court will assume that the plaintiff has included all allegations that she deems necessary to state her claims.
The defendants' motion for partial dismissal of the plaintiff's second amended complaint, namely, dismissal as against the defendant ICS, is based on the same grounds as their previous motion to dismiss. In sum, the defendants maintain that the plaintiff has once again failed to allege that ICS is a debt collector or a creditor which, "in the process of collecting [its] own debts, uses the name other than [its] own which would indicate that a third party is collecting or attempting to collect such debts." See 15 U.S.C. § 1692a(6).
The defendants critique the Court's previous Order, suggesting that the Court should modify its Order to hold that ICS may be deemed a debt collector under the FDCPA only if it uses an alias or assumed name to collect its own debts. The defendants maintain that the FDCPA does not extend liability to NBD and ICS even if they constitute a single economic entity or even if ICS controlled almost every aspect of NBD's debt collection. To the extent that the defendants' motion can be deemed a motion for reconsideration of that portion of the Order, the Court has reviewed the defendants' contentions and adheres to its original decision that ICS may be deemed to be a debt collector if: (1) ICS uses an alias or an assumed name to collect its own debt; (2) ICS and NBD are a single economic entity; or (3) ICS controls almost every aspect of NBD's debt collection practice.
The plaintiff has made the following allegations in the Second Amended Complaint, in support of her claim that ICS is a debt collector:
11. NEC owns 100% of ICS Learning Systems, which in turn owns 100% of NBD and ICS.
12. ICS and NBD share officers and personnel.