United States District Court, Northern District of New York
May 3, 2000
DAVID BURGER, PLAINTIFF,
RISK MANAGEMENT ALTERNATIVES, INC. AND MR. WATSON, DEFENDANTS.
The opinion of the court was delivered by: Mordue, District Judge
MEMORANDUM — DECISION AND ORDER
Plaintiff commenced the present suit on October 12, 1999,
seeking damages as a result of defendants' alleged violation of
the Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. § 1692 et seq. Specifically, plaintiff alleges that defendants
violated § 1692c(a)(2) of the FDCPA. Section 1692c(a)(2)
prohibits a debt collector from contacting a debtor if the debt
collector has knowledge that the debtor is represented by counsel
with respect to that debt.
Defendant, Risk Management Alternatives, Inc., ("Risk
Management" or "defendant") is a debt collection agency which
provides debt collection services for its client, Sears.
Defendant Watson, apparently, is a fictitious name used by agents
employed by Risk Management.
By letter dated May 22, 1998, plaintiff notified Sears that the
Law Office of Andrew F. Capoccia, LLC, had been retained to
represent plaintiff with respect to an account plaintiff
maintained with Sears. The letter instructed Sears to close
plaintiff's account, direct all communications regarding same to
the Capoccia Firm and refrain from directly contacting plaintiff
regarding his account.
Plaintiff alleges that, as agent for Sears, defendants sent a
September 10, 1999, letter to plaintiff requesting that he accept
a settlement offer on the alleged debt. Plaintiff alleges that
defendants had knowledge that plaintiff was represented by the
Capoccia Firm at the time of this communication and, therefore,
that the September 10, 1999, letter was an impermissible
communication pursuant to § 1692c(a)(2) of the FDCPA.
Presently before the Court is defendants' motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Motion to Dismiss
Rule 8(a) of the Federal Rules of Civil Procedure sets forth
the requirements for pleading a claim for relief as follows:
A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, cross-claim,
or third-party claim, shall contain (1) a short and
plain statement of the grounds upon which the court's
jurisdiction depends, unless the court already has
jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) a short and plain
statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for
the relief the pleader seeks. . . .
A dismissal under Rule 12(b)(6) is a dismissal on the merits of
the action, a determination that the facts alleged in the
complaint fail to state a claim upon which relief may be granted.
See Teltronics Services, Inc. v. LM Ericsson Telecommunications,
Inc., 642 F.2d 31
, 34 (2d Cir. 1981). In deciding a 12(b)(6)
motion, the court
must "accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in a light most favorable to the nonmoving party." Rocks v.
City of Philadelphia, 868 F.2d 644
, 645 (3rd Cir. 1989). The
court may not consider matters outside the pleadings and may not
weigh evidence that might be presented at trial. The sole inquiry
is whether the complaint is legally sufficient. See LaBounty v.
Adler, 933 F.2d 121
, 123 (2d Cir. 1991). Dismissal of a claim is
not proper unless it is obvious that the plaintiff is unable to
prove any set of facts supporting his claim which will enable him
to prevail. See Gagliardi v. Village of Pawling, 18 F.3d 188
191 (2d Cir. 1994) (quoting Allen v. West-Point-Pepperell,
Inc., 945 F.2d 40
, 44 (2d Cir. 1991)); Robb v. City of
Philadelphia, 733 F.2d 286
, 290 (3rd Cir. 1984). A complaint may
be dismissed, however, when the facts pleaded and the reasonable
inferences therefrom are legally insufficient to support the
relief sought. See Commonwealth of Pennsylvania, ex rel.
Zimmerman v. PepsiCo, Inc., 836 F.2d 173
, 179 (3rd Cir. 1988).
The function of a motion to dismiss is merely to assess the legal
feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof. See
Countryman v. Solomon & Solomon, 2000 WL 156837 (N.D.N.Y. Feb.8,
2000) (Munson, S.J.); Filsinger v. Upton, Cohen & Slamowitz,
2000 WL 198223 (N.D.N.Y. Feb.18, 2000) (Munson, S.J.) (citing
Ryder Energy Distribution Corp. v. Merrill Lynch Commodities,
Inc., 748 F.2d 774
, 779 (2d Cir. 1984)).
Section 1692c(a)(2) of the FDCPA provides:
(a) Without the prior consent of the consumer given
directly to the debt collector or the express
permission of a court of competent jurisdiction, a
debt collector may not communicate with a consumer in
connection with the collection of any debt . . . (2)
if the debt collector knows the consumer is
represented by an attorney with respect to such debt
and has knowledge of, or can readily ascertain, such
attorney's name and address, unless the attorney
fails to respond within a reasonable period of time
to a communication from the debt collector or unless
the attorney consents to direct communication with
the consumer. . . .
After articulating the factual allegations as established
above, plaintiff's complaint alleges that "[d]efendants violated
Section 805(a)(2) of the fair Debt Collection Practices Act
(15 U.S.C. § 1692c(a)(2)) by communicating with the plaintiff,
despite knowledge that Plaintiff was represented by counsel."
Courts have construed the "knowledge" requirement of
1692c(a)(2) to mean that a debt collector need possess "actual
knowledge that [the plaintiff/debtor] was represented by an
attorney." Countryman, 2000 WL 156837, at *2; Filsinger, 2000
WL 198223, at * 2; See also 15 U.S.C. § 1692c(a)(2) ("if the
debt collector knows"). Furthermore, a "creditor's knowledge that
the consumer has an attorney is not automatically imputed to the
debt collector." Hubbard v. National Bond and Collection
Associates, Inc., 126 B.R. 422 (D.Del. 1991), aff'd.,
947 F.2d 935 (3rd Cir. 1991). Defendants argue that the complaint should
be dismissed based on the foregoing law since plaintiff's
pleading does not explicitly establish that defendants possessed
Although it is clear that a plaintiff must establish actual
knowledge to prevail on a 1692c(a)(2) claim, there is no
authority to suggest that a plaintiff must plead actual
knowledge to survive a motion to dismiss. To the contrary, the
liberal system of "notice pleading" established by the Federal
Rules of Civil Procedure militates against this conclusion. As
stated above, Rule 8(a)(2) requires that a complaint include only
"a short and plain statement of the claim showing that the
pleader is entitled to relief." Plaintiff's complaint alleges
that defendants had "knowledge" that he
was represented by counsel. Plaintiff's failure to articulate
whether he meant actual or constructive knowledge is not fatal
for purposes of this 12(b)(6) motion. It certainly cannot be
said, based on the pleading, that the plaintiff could prove no
set of facts in support of his claim which would entitle him to
relief. Defendants' argument is one more appropriately brought
pursuant to Rule 56 in the event that discovery establishes that
actual knowledge is absent and plaintiff cannot make out a prima
facie case. However, this is not a summary judgment motion and
those are not presently the facts. Based on the foregoing, the
Court concludes that plaintiff's complaint satisfies basic
pleading requirements and denies defendants' motion to dismiss.
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss plaintiff's
complaint pursuant to Fed.R. of Civ.P. 12(b)(6) is DENIED.
IT IS SO ORDERED
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