The opinion of the court was delivered by: Kahn, District Judge.
Plaintiff alleges that the Defendant violated the Fair Debt Collection
Practice Act, ("FDCPA") 15 U.S.C. § 1692, which prohibits debt
collectors from engaging in abusive, deceptive, and unfair collection
Presently before this Court is Defendant's motion to dismiss pursuant
to Fed. R.Civ.P. 12(b)(6), and for fees, costs and sanctions pursuant to
§ 1692(k) of the FDCPA. For the reasons set forth below, Defendant's
motion is denied.
By letter, on or about July 3, 1998, the Law Office of Andrew F.
Capoccia, LLC notified Defendant's client, World Financial Network
Bank/Lane Bryant, Inc., that it had been retained to represent Plaintiff
with respect to an account Plaintiff maintained with World Financial
Network Bank/Lane Bryant, Inc. The letter instructed the bank to close
the referenced account, direct all further communication to the Capoccia
Firm, and refrain from directly contacting Plaintiff either at her home
or place of business. On January 28, 1999, Plaintiff's account was
settled with World Financial Network Bank/Lane Bryant, Inc. by the
Capoccia Firm in full for $324.65.
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) must be denied
"unless it appears beyond doubt that the Plaintiff can prove no set of
facts in support of his claim [that] would entitle him to relief." See
Conley v. Gibson, 355 U.S. 41. 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
In assessing the sufficiency of a pleading, "all factual allegations in
the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121,
123 (2d Cir. 1991), and all reasonable inferences must be construed in
favor of the Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bankers Trust Co. v. Rhoades,
859 F.2d 1096. 1099 (2d Cir. 1988), cert. denied sub now., Soifer v.
Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158
[C]onsideration is limited to the factual allegations
in [the] complaint, to documents attached to the
complaint as an exhibit or incorporated in it by
reference, to matters of which judicial notice may be
taken, or to documents either in Plaintiffs'
possession or of which Plaintiffs had knowledge and
relied on in bringing suit.
See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d
The Rules do not require the Plaintiff to set out in detail the facts
upon which the claim is based, but only that a defendant be given "fair
notice of what the claim is and the grounds upon which it rests." See
Conley v. Gibson, 355 U.S. 41, 45-46. 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Individual allegations, however, that are so baldly conclusory that they
fail to give notice of the basic events and circumstances of which the
Plaintiff complains are meaningless as a practical matter and, as a
matter of law, insufficient to state a claim. See Barr v. Abrams,
810 F.2d 358, 363 (2d Cir. 1987).
Plaintiff's first cause of action relies upon § 1692c(a)(2)'s
requirement that the debt collector may not communicate with a consumer
in connection with the collection of any debt if the debt collector knows