The opinion of the court was delivered by: SPATT
This action was commenced by the plaintiff, Carolyn Harrison (the "plaintiff"), on behalf of a putative class, seeking statutory damages pursuant to the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692, et seq., from the defendants NBD Inc. ("NBD") and International Correspondence Schools, Inc. ("ICS") (collectively, the "defendants"), for the mailing by NBD to the plaintiff of a letter which the plaintiff alleges contains language contrary to the statute's requirements.
Presently before the Court is: (1) a motion pursuant to Fed. R. Civ. P. 12(b)(6), by the defendants for partial dismissal of the Second Amended Complaint as to the defendant ICS, for failure to state a claim upon which relief can be granted; and (2) a motion pursuant to Fed. R. Civ. P. 15(a), by the plaintiff for leave to file and serve a third amended complaint, if necessary.
According to the Second Amended Complaint, the plaintiff is a resident of Roosevelt, New York. NBD is a Delaware corporation with a principal place of business in Scranton, Pennsylvania. The principal purpose of NBD is the collection of debts due to others. NBD uses the mails in conducting this business. Another firm called National Education Corp. ("NEC"), is a corporation with a principal place of business in Irvine, California. The principal purpose of NEC is the operation of correspondence schools and providing other educational services. NEC owns 100% of ICS Learning Systems, which in turn owns 100% of NBD and ICS.
The plaintiff alleges that ICS and NBD share officers and personnel. Two employees of ICS and NBD, Joan Kozak and Robert Smith, allegedly authorized, approved or were aware of the form letter used by NBD to collect ICS' debt. ICS determines which accounts will be sent for collection by NBD. NBD obtains relevant information regarding the debtors' accounts by accessing a specially coded computer program run by ICS. The collection letters sent by NBD are allegedly printed and mailed at ICS facilities.
The plaintiff received a letter from NBD dated May 21, 1996 (the "letter"), the purpose of which was to collect an alleged debt of $ 247.86 that the plaintiff incurred with ICS. The plaintiff contracted with ICS for a home study course. The plaintiff alleges that the demand purports to come from NBD, an independent third-party collection agency, by stating, "your account with ICS is severely delinquent and has been referred to us for collection." Second Amended Complaint P 31. The plaintiff alleges that ICS is a "debt collector" subject to the FDCPA because it is uses NBD's name to collect a debt, conveying "the impression that a third-party collection agency is involved." Second Amended Complaint PP 30, 38(b). The plaintiff maintains that this alleged act is in violation of 15 U.S.C. § 1692e(10).
The plaintiff further alleges that the amount of the debt is overstated in the letter. The plaintiff's total tuition fee for the course at ICS was $ 2,008.00. The plaintiff paid a down payment of $ 29.00, leaving a balance of $ 1,979.00. The plaintiff completed 11.7% of the course. Multiplying the percent completed by the total tuition, the plaintiff calculates her liability at $ 253.68. However, the letter also lists $ 1,979.00 as the "balance due". The plaintiff acknowledges that if she "now elected to continue with the course, she would owe the $ 1,979.00 figure upon completion." Second Amended Complaint P 33. The plaintiff alleges that the amount of the debt is overstated and misleading, in violation of 15 U.S.C. §§ 1692e(2) and (10), because the letter deceptively states that the "balance due" is $ 1,979.00.
Finally, the plaintiff alleges that she is acting on behalf of a class of similarly situated consumers whose rights have been violated.
The original complaint, which named only NBD and NEC as defendants, was filed with the Court on September 30, 1996. With the consent of NBD, NEC and ICS and the approval of this Court, the plaintiff filed an amended complaint on April 16, 1997. The only substantive difference between the original and amended complaint was the addition of ICS as a defendant. By a Memorandum Decision and Order dated June 30, 1997 (the "Order"), the Court granted the defendants' motion to dismiss the amended complaint as to NEC and ICS but denied the motion as to NBD. However, the Court granted the plaintiff leave to file a second amended complaint, stating that "the only viable amendment that the Court foresees the plaintiff capable of making as to NEC and ICS, is the inclusion of allegations asserting that NEC and ICS controlled almost all aspects of NBD's debt collection or that these three corporate entities were, in fact, one single economic entity." See Order at 34.
The plaintiff filed the Second Amended Complaint on July 28, 1997, dropping NEC as a defendant, thereby naming NBD and ICS as the only defendants.
A. The defendants' motion to dismiss
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 ...