The opinion of the court was delivered by: Kahn, District Judge.
MEMORANDUM-DECISION AND ORDER
Presently before the Court is Defendant's motion to dismiss
and for fees, costs, and sanctions. For the reasons set forth
below, Defendant's motion is granted in part and denied in part.
Plaintiff alleges that, on or about February 23, 1999, the Law
Office of Andrew F. Capoccia, L.L.C. (now Daly, Cilingiryan,
Murphy, Sinnott & Cappocia Law Centers, L.L.C.) notified
Defendant's client, First Select Corporation ("FSC"), that it
had been retained to represent Plaintiff with respect to
Plaintiffs debt with FSC. According to Plaintiff, this
notification advised FSC to close the account and to forward all
future communications to the Law Office of Andrew F. Capoccia
and not to contact Plaintiff directly.
On August 16, 1999, FSC forwarded Plaintiffs file to Defendant
via electronic mail for collection purposes. Defendant contends
that, despite an established procedure for doing so, the file
did not indicate that Plaintiff was represented by an attorney.
Defendant subsequently sent a demand letter directly to
Plaintiff that same day. Moreover, on October 19, 2000,
Defendant received a facsimile from FSC indicating that a
settlement with Plaintiff as pending and that, as a result of
the pending settlement, Plaintiff was required to make a reduced
payment in satisfaction of his debt by November 13, 1999. This
communication also did not indicate that Plaintiff was
represented by an attorney.
On October 21, 1999, Plaintiff payed off his account with FSC
pursuant to a settlement agreement. On December 14, 1999, having
failed in efforts to receive confirmation of the results of the
settlement effort, Defendant mailed another demand letter to
Plaintiff. On December 28, 1999, Defendant received confirmation
that FSC was paid in full and closed Plaintiffs file.
Plaintiff commenced the present action on January 14, 2000
alleging violations of the Fair Debt Collection Practice Act
("FDCPA"), 15 U.S.C. § 1692, which prohibits debt collectors
from engaging in abusive, deceptive, and unfair collection
practices. Specifically, Plaintiff alleges three causes of
action pursuant to §§ 1692c(a)(2), 1692c(c), and 1692e of the
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), for "failure to state a claim upon which
relief can be granted," 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." 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, Scheuer
v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974); see also Bankers Trust Co. v. Rhoades, 859 F.2d 1096,
1099 (2d Cir. 1988) (applying the principle of construing
inferences in favor of plaintiff).
[C]onsideration is limited to the factual allegations
in [the] complaint, which are accepted as true, 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.
Brass v. American Film Technologies, Inc., 987 F.2d 142, 150
(2d Cir. 1993).
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." Conley, 355 U.S. at 45-46,
78 S.Ct. 99. 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 ...