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).
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 ...