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Schroer v. Emil Norsic & Son

December 5, 2007


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Pro se plaintiff Harold P. Schroer ("plaintiff") brought this action against contractor Emil Norsic and Son, Inc. ("Norsic") and Capital One Financial Corporation ("Capital One") in connection with a dispute regarding a $543.75 charge to plaintiff's Mastercard after plaintiff hired Norsic to clean the septic tank at his home. By Stipulation, filed August 7, 2007, the case against Capital One was dismissed with prejudice.

With respect to the remaining defendant, Norsic, plaintiff attempts to assert federal claims under the "U.S. Consumer Protection Act," the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCPA"). Plaintiff also seeks to bring state claims for fraud, breach of contract, defamation, and unfair and deceptive business practices.

Norsic moves to dismiss plaintiff's federal claims in the Amended Complaint (the "complaint") for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Norsic also seeks to have the Court, if the federal claims are dismissed, decline to exercise subject matter jurisdiction over the remaining state claims. For the reasons set forth below, Norsic's motion to dismiss the federal claims is granted. Specifically, given the facts in the complaint, there is no plausible claim that can be brought under federal law with respect to the charge submitted by Norsic to Capital One in connection with work at plaintiff's home. The Court declines to retain jurisdiction over plaintiff's remaining state law claims, and dismisses such claims without prejudice.


A. Facts

The facts are drawn from the complaint and taken as true for the purposes of this motion.

Plaintiff's complaint seeks compensatory damages against Norsic for a breach of contract in the amount of $419.00.*fn1 Plaintiff also seeks the following: (1) compensatory damages in an unspecified amount for defamation; (2) punitive damages in an unspecified amount; and (3) a permanent injunction by which the Court would order that Norsic follow certain procedures in performing septic tank work and charging customers.

With respect to the core dispute regarding Norsic's work on the septic tank, although plaintiff acknowledges in the complaint that he authorized a charge to his Capital One credit card for work Norsic was to perform on his septic tank (based on a estimate of $250), he alleges (1) that Norsic overcharged him for the work done and thereby obtained payment on his card for $543, (2) that Capital One relied on the misrepresentations of Norsic regarding the amount owed, and (3) that this resulted in "defamation" of his credit.

B. Procedural History

Plaintiff filed the complaint on April 17, 2007. By letter dated May 7, 2007, plaintiff requested leave to amend his complaint. On May 8, 2007, the Court granted leave to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure. On May 30, 2007, the Amended Complaint was filed. On July 27, 2007, Norsic filed its motion to dismiss. On August 7, 2007, a stipulation of dismissal with prejudice was filed as to Capital One. On September 25, 2007, plaintiff filed his opposition to the motion. On October 30, 2007, at plaintiff's request, oral argument was held. In a letter dated November 1, 2007, plaintiff submitted a letter supplementing his previous submission. All of plaintiff's submissions have been considered by the Court.


In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). The plaintiff must satisfy "a flexible `plausibility standard.'" Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (May 21, 2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." Id. Moreover, as the plaintiff is appearing pro se, the Court shall "`construe [his complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.'" Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). ...

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