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Howell v. Citibank

January 21, 2009

ALLY W. HOWELL, PLAINTIFF,
v.
CITIBANK (SOUTH DAKOTA), N.A., MICHAEL C. MANNIELLO, PETER T. ROACH & ASSOC., P.C., DISCOVER BANK, LEANDRE M. JOHN, COHEN & SLAMOWITZ, L.L.P., DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION AND ORDER

INTRODUCTION

Plaintiff Ally W. Howell ("plaintiff"), proceeding pro se, brought this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §1692, et seq. Specifically, plaintiff alleges that defendants Leandre M. John and Cohen & Slamowitz, L.L.P. ("defendants") violated §1692i(a) of the FDCPA by bringing a legal action on a debt outside a "judicial district or similar legal entity" in which plaintiff resides. Defendants have filed a motion to dismiss pursuant to 12(b)(6) of the Federal Rules of Civil Procedure on the basis that plaintiff's cause of action fails to state a claim upon which relief can be granted. Also for consideration is a motion filed by plaintiff to strike the affidavit filed by counsel for defendants in support of their motion to dismiss plaintiff's complaint.

For the reasons set forth below, the Court denies plaintiff's motion to strike and grants defendants' motion to dismiss.

MOTION TO STRIKE

Plaintiff initially claims that the affidavit of counsel is "[outside] the record." See Pls. Motion to Strike at 2. Moreover, plaintiff contends that on a motion to dismiss under Rule 12(b)(6), the "court is limited to the facts on the face of the complaint, incorporated by reference in the complaint, and matters of which the court may take judicial notice." See id. citing Allen v. West Point-Pepperill, Inc., 945 F.2d (2d cir. 1991).*fn1

The Local Rules of the Western District of New York provide that a party moving to dismiss an action must submit with its "motion papers a memorandum of law and an affidavit in support of the motion[.]" See W.D.N.Y. Loc. R. Civ. P. 7.1(e) (emphasis supplied). Accordingly, contrary to plaintiff's contention, defendants were required to submit an affidavit in support of their motion to dismiss and have complied with the local rules of this Court. Thus, plaintiff's initial contention is without merit.

Further, in deciding a 12(b)(6) motion, the Court is confined to "the allegations contained within the four corners of the complaint." See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir.1998). However, the Court may examine "any written instrument attached to [the complaint] or any statements or documents incorporated in it by reference" as well as any document on which the complaint relies heavily. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir.2002); see also Rothman v. Gregor, 220 F3d 81, 88 (2d Cir. 2000) (A court reviewing a motion to dismiss may take judicial notice of and consider the contents of documents "integral to and explicitly relied on in the complaint"). "Of course, it may also consider matter of which judicial notice may be taken under Fed.R.Evid. 201." See Kramer v. Time Warner, Inc., 837 F.2d 767, 773 (2d Cir.1991).

Upon a review of the affidavit of defendants' counsel in support of their motion to dismiss, the Court finds that the statements made as set forth in the affidavit of counsel are "integral to and explicitly relied on in the Complaint." Accordingly, the Court finds that there is no basis in law or fact to strike the affidavit of counsel. Thus, the Court will consider the affidavit filed by counsel for defendants and plaintiff's motion to strike such affidavit is denied.

MOTION TO DISMISS

BACKGROUND

Plaintiff initiated this action by filing a Summons and Complaint in this Court on May 6, 2008. See Affidavit of Daniel R. Ryan ("Ryan Aff."), ¶5, Ex. A. Plaintiff is a resident of New York State, residing in the Town of Pittsford in Monroe County. See id., ¶6. In March 2007, defendants commenced a consumer credit civil action against plaintiff in the Rochester City Court for less than fifteen thousand dollars. See id., ¶7-8. Plaintiff alleges that defendants violated 15 U.S.C. § 1692i(a) by initiating a consumer credit civil action in Rochester City Court. See Pls. Br. at 3. In addition, plaintiff claims that defendants urge the court to adopt an "overly technical and restrictive definition of the terms 'judicial district or similar legal entity.'" See id. Defendants contend that there has been no violation of 15 U.S.C. §1692i(a). See Defs. Br. at 4. Defendants argue that the Rochester City Court and Pittsford Town Court are both located within the 7th Judicial District. See id. Accordingly, defendants claim that plaintiff has failed to state a claim on which relief can be granted because the consumer credit civil action filed by defendants was filed in the same county, and "judicial district or similar legal entity" in which the plaintiff resides. See id. at 4-6.

DISCUSSION

I. Defendants' Motion to ...


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