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MICARE v. FOSTER & GARBUS

February 21, 2001

JOSEPH R. MICARE, PLAINTIFF,
V.
FOSTER & GARBUS, DEFENDANT.



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.

I. BACKGROUND

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 FDCPA, respectively.

II. ANALYSIS

A. Motion to Dismiss

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 ...


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