The opinion of the court was delivered by: Mordue, District Judge.
MEMORANDUM — DECISION AND ORDER
Plaintiffs commenced the present suit on September 27, 1999,
seeking damages as a result of defendant's alleged violation of
the Fair Debt Collection Practices Act ("FDCPA"),
15 U.S.C. § 1692 et seq. Specifically, plaintiffs allege six causes of
action pursuant to §§ 1692c(a)(2), 1692d 1692c(c), 1692e(5),
1692e(11) and 1692f(1) of the FDCPA as well as a cause of action
seeking exemplary damages arising from what plaintiffs allege to
be willful and wanton conduct of defendant.
By letter dated February 19, 1998, plaintiffs notified
defendant's client, People's Bank, that the Law Office of Andrew
F. Capoccia, LLC, had been retained to represent them with
respect to an account plaintiffs maintained with People's
Bank.*fn1 The letter instructed the bank to close the referenced
account, direct all communications to the Capoccia Firm and
refrain from directly contacting plaintiffs regarding same.
As attorneys for People's Bank, defendant sent an August 24,
1999, letter stating that plaintiffs had an outstanding balance
of $5,865.18 and that the account had been forwarded to defendant
for immediate attention in an attempt to collect the debt. The
letter referenced potential court action and additional costs
that would be charged to plaintiffs if such action was
required.*fn2 No account number is mentioned in the letter.
Presently before the Court is plaintiffs' motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56 and
defendant's cross-motion to dismiss pursuant to Rule
12(b)(6).*fn3 Defendant also requests costs, fees and Rule 11
Summary Judgment is appropriate where there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. See Fed. R.Civ.P. 56(c). Substantive law
determines which facts are material; that is, which facts might
affect the outcome of the suit under the governing law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). Irrelevant or unnecessary facts do
not preclude summary judgment, even when they are in dispute.
See id. The moving party bears the initial burden of
establishing that there is no genuine issue of material fact to
be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). With respect to any issue
on which the moving party does not bear the burden of proof, it
may meet its burden on summary judgment by showing that there is
an absence of evidence to support the nonmoving party's case.
See id. at 325, 106 S.Ct. 2548. Once the movant meets this
initial burden, the nonmoving party must demonstrate that there
is a genuine unresolved issue for trial. See Fed.R.Civ.P.
Although the trial court must resolve all ambiguities and draw
all inferences in favor of that party against whom summary
judgment is sought, Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 465 (2d Cir. 1989), the motion will not be defeated by a
nonmovant who raises merely "metaphysical doubt" concerning the
facts or who only offers conjecture or surmise. See Delaware &
H.R. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.
1990) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986)). Indeed, the nonmoving party's opposition may not rest on
mere denials of the moving party's pleading, but "must set forth
specific facts showing there is a genuine issue for trial." See
Fed.R.Civ.P. 56(e). The standard for granting summary judgment
mirrors the directed verdict standard under Rule 50(a) which
requires the court to grant a directed verdict where there can be
but one reasonable conclusion. Anderson, 477 U.S. at 250, 106
S.Ct. 2505. "It is a gratuitous cruelty to parties and their
witnesses to put them through the ordeal of a trial when the
outcome is foreordained." See Mason v. Continental Illinois
Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983). It is with these
considerations in mind that the Court addresses the parties'
In order to prevail under 1692c(a)(2), plaintiffs must prove
that defendant contacted him/her when it had "actual knowledge
that he/she was represented by an attorney." 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.); see also
15 U.S.C. § 1692c(a)(2) ("if the debt collector knows"). "The
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). Thus, an
agent cannot be imputed with information
that his principal failed to give him.
Plaintiffs have presented insufficient evidence to suggest that
defendant possessed actual knowledge that plaintiffs were
represented by counsel at the time of the communication.
Plaintiffs' only proof is that their lawyers sent People's Bank a
letter before defendant attempted to contact them. The record is
devoid, however, of any evidence indicating that defendant was
aware plaintiffs were represented and defendant specifically
denies any such knowledge. Thus, since plaintiffs have failed to
establish a prima facie case pursuant to 1692c(a)(2), the Court
must deny their motion. Similarly, because ...