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Spencer v. Arizona Premium Finance Co.

December 24, 2008


The opinion of the court was delivered by: William M. Skretny United States District Judge



Plaintiff Theresa M. Spencer commenced this action on March 16, 2006, by filing a Complaint in the United States District Court for the Western District of New York against Defendant Arizona Premium Finance Co., Inc. ("Arizona"). Spencer filed an Amended Complaint on June 5, 2008, asserting claims for Arizona's alleged violation of the Credit Repair Organization Act, 15 U.S.C. §§ 1679 et seq. ("CROA"), and New York General Business Law § 349, and for common law intentional infliction of emotional distress.

Currently before this Court are Plaintiff's Motion for Leave to file a Second Amended Complaint, Defendant's Motion to Dismiss the Amended Complaint, and Plaintiff's Motion to Strike. For the reasons set forth below, Plaintiff's Motion for Leave to Amend is granted in part and denied in part, the Motion to Dismiss is denied as moot, and the Motion to Strike is denied as moot.


A. Plaintiff's Motion for Leave to File a Second Amended Complaint

In her Amended Complaint, Plaintiff alleges that she borrowed funds from Arizona to purchase automobile insurance and repaid all sums owed no later than May 30, 2005. Despite purportedly making full payment, she claims to have received telephone calls from Arizona two to three times a day, beginning in June 2005 and continuing for approximately ten months thereafter, in which Arizona stated that she still owed a debt, it had reported her delinquency to credit agencies, and she must pay the obligation to repair her credit. On these same fact allegations, Plaintiff now seeks to amend her Amended Complaint to add two new legal claims for violations of: (1) section 223 of the Communications Act of 1934, 47 U.S.C. §§ 151 et seq.; and (2) the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227.

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading shall be freely given when justice so requires. See Livingston v. Piskor, 215 F.R.D. 84, 85 (W.D.N.Y. 2003). "Absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility, Rule 15's mandate must be obeyed." Monahan v. New York City Department of Corrections, 214 F.3d 275, 283 (2d Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed. 2d 222 (1962)), cert. denied, 531 U.S. 1035 (2000).

In support of her Motion for Leave to Amend, Plaintiff states that the proposed amendment will not cause undue delay or prejudice to Defendant because no answer has been filed and no discovery has been conducted. (Docket No. 12, Affidavit of Kenneth R. Hiller, Esq. ¶ 11.)

Defendant has filed an attorney's affidavit and the affidavit of Jay A. Rosenblum, Arizona's President, in opposition. These affidavits do not separately address the legal claims Plaintiff seeks to add and are unaccompanied by any legal analysis. In general, Defendant appears to assert that the motion should be denied due to Plaintiff's delay in bringing these claims and because "there is simply no basis for th[em]." (Docket No. 15, Affidavit of Steven G. Legum, Esq. ¶¶ 4, 6.)

1. The Communications Act Claim

Plaintiff first seeks to add a claim under section 223 of the Communications Act, alleging that Defendant used telecommunications devices with the intent to annoy, abuse, threaten and harass Plaintiff while engaged in interstate debt collection in violation of that statute. However, "47 U.S.C. § 223 is a criminal statute that prohibits the making of obscene or harassing telecommunications, but creates no private right of action." Sloan v. Truong, 573 F. Supp. 2d 823, 829 (S.D.N.Y. 2008) (citing Ghartey v. Chrysler Credit Corp., No. CV-92-1782 (CPS), 1992 U.S. Dist. LEXIS 18185, at *13-16 (E.D.N.Y. Nov. 18, 1992) (holding that there is no express or implied provision for private remedy under section 223)); see also, Watson v. NCO Group, Inc. 462 F. Supp. 2d 641, 643 n.1 (E.D. Pa. 2006) (plaintiff withdrew Communications Act claim after acknowledging that § 223 is a criminal statute).

Because section 223 does not provide for a private right of action, Plaintiff has no standing to bring a claim. Absent standing, the Court is without a viable basis for jurisdiction over the claim and its addition would be futile as a matter of law.*fn1 Accordingly, this Court denies Plaintiff's ...

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