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Bank v. Pentagroup Financial

June 9, 2009

TODD C. BANK, PLAINTIFF,
v.
PENTAGROUP FINANCIAL, LLC, DEFENDANT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Todd C. Bank brings this action against Pentagroup Financial, LLC ("Pentagroup"). Bank alleges two violations of the Federal Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C. §§ 1692 et seq., by the defendant debt collector in relation to pre-recorded telephone messages left on Bank's voicemail. Bank seeks damages of $1,000 and costs, disbursements and attorney's fees. Pentagroup moves to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. I heard argument on the motions on June 5, 2009. For the reasons discussed below, the defendant's motion is granted in part and denied in part.

BACKGROUND

The following facts are drawn from Bank's amended complaint, filed April 23, 2009, and are assumed to be true for the purposes of this motion.

Bank is a resident of Queens County, New York.*fn1 Pentagroup is a "debt collector" within the meaning of FDCPA. See 15 U.S.C. § 1692a(6). During 2008, Pentagroup called Bank approximately 30 times. Each time, it left one of two versions of a pre-recorded voicemail message. Version one stated:

This confidential and important message is meant exclusively for. If you are not, please hang up or disconnect now. The law requires that we notify you that this call is from Pentagroup Financial LLC, a debt collection company. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please return this call to Pentagroup Financial LLC at. Again, the number is.

Version two was identical except that, unlike version one, it included the name of an individual and toll-free number for Pentagroup.*fn2 The named individual was not someone Bank recognized. Specifically, Bank received version one of the message on September 19 and 24, 2008 and version two on September 29, 2008. He does not specify when the other alleged calls were received.

Bank filed his original complaint on December 31, 2008 and his amended complaint April 23, 2009. Bank alleges violations of 15 U.S.C. § 1692c(b) ("Communication in connection with debt collection") and § 1692d ("Harassment or abuse").

DISCUSSION

A. Standard of Review -- Motion to Dismiss

Motions to dismiss pursuant to Rule 12(b)(6) test the legal, not the factual, sufficiency of a complaint. See, e.g., Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998))). Accordingly, I must accept the factual allegations in the complaint as true, Erickson v. Pardus, 551 U.S. 89, ---, 127 S.Ct. 2197, 2200 (2007) (per curiam), and draw all reasonable inferences in favor of the plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal ("Iqbal"), 556 U.S. ---, 129 S.Ct. 1937, 1949 (2009).

The plaintiff is not entitled to unlimited favorable inferences at the motion to dismiss stage. The Supreme Court has held that the standard governing a complaint's legal sufficiency is in part one of "plausibility," Twombly, 550 U.S. at 560-63, no longer governed by the "no set of facts" admonition of Conley v. Gibson. 355 U.S. 41, 45-46 (1957) ("[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

When considering a motion to dismiss, a court may examine (1) the factual allegations in the complaint, which are accepted as true; (2) documents attached to the complaint as exhibits or incorporated in it by reference; (3) matters of which judicial notice may be taken; and (4) documents either in the plaintiff's possession or of which the plaintiff had knowledge and ...


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