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Sembler v. Attention Funding Trust

September 3, 2009

FREDERICK M. SEMBLER, PLAINTIFF,
v.
ATTENTION FUNDING TRUST A/K/A ATTENTION FUNDING & TRUST; ATTENTION, LLC A/K/A WEST ASSET MANAGEMENT, INC.; AND SHARINN & LIPSHIE, P.C., DEFENDANTS.



The opinion of the court was delivered by: Bloom, United States Magistrate Judge

REPORT & RECOMMENDATION

Plaintiff brings thisaction alleging defendants violated his rights under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). Plaintiff further alleges claims under New York state law for usury, breach of contract, libel, abuse of process, malicious prosecution, unlawful attachment, deceptive acts and practices, negligent supervision, as well as violations of unspecified Utah state law. Defendants West Asset Management, Inc.*fn1 and Worldwide Asset Purchasing, LLC*fn2 (collectively "West defendants"), move to dismiss plaintiff's second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6).*fn3 The Honorable Raymond J. Dearie referred this motion to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the following reasons, it is respectfully recommended that defendants' motion to dismiss should be granted.

BACKGROUND

This is the West defendants' second motion to dismiss this action.*fn4 On the first motion, I recommended dismissal of all claims against defendant Advanta Bank Corporation, and that plaintiff should be ordered to file a Second Amended Complaint to clarify his claims against the remaining defendants. See Report and Recommendation ("R&R") dated May 21, 2008, document 54. The R&R was adopted. (Documents 57, 65.) Plaintiff filed his Second Amended Complaint on July 7, 2008, asserting substantially the same claims as those alleged in the First Amended Complaint. For the purposes of this motion, the Court assumes familiarity with the underlying facts of plaintiff's claim, as set forth in the prior R&R.

Defendants move to dismiss the complaint on the grounds (1) that the Second Amended Complaint fails to state a claim; and (2) that it fails to comply with the Court's Order regarding any amended complaint. Plaintiff opposes the motion and defendants reply.

STANDARD OF REVIEW

When ruling on a motion to dismiss, a court must accept all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema

N. A., 534 U.S. 506, 508, n. 1 (2002)); Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999). To survive a motion to dismiss, however, a plaintiff's complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 569. If a plaintiff does not "nudge [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. 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, 129 S.Ct. 1937, 1949 (2009).

Plaintiff filed the original complaint as well as both amended complaints pro se.*fn5

While "[a] document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), that liberal construction does not apply here. Plaintiff is an admitted attorney. As "the rules afforded pro se litigants are not relaxed when that litigant is also an attorney," see Larsen v. JBC Legal Group, P.C., 533 F.Supp.2d 290, 295 n. 2 (E.D.N.Y. 2008), the Court will not construe plaintiff's pleadings liberally "to raise the strongest arguments they suggest." Burgos, 14 F.3d at 790. See also Leeds v. Meltz, 898 F.Supp. 146, 149 (E.D.N.Y. 1995), aff'd, 85 F.3d 51 (2d Cir. 1996) (pro se attorney not entitled to the liberality normally afforded pro se litigants). Moreover, Carol Ann Crossett, an attorney from "The Law Office of Frederick M. Sembler, PLLC," entered a notice of appearance on plaintiff's behalf and appeared at the March 12, 2008 status conference, prior to the filing of the Second Amended Complaint. Ms. Crosset also filed plaintiff's opposition to the instant motion.

DISCUSSION

I. FDCPACLAIMS AGAINST WEST DEFENDANTS

The FDCPA was enacted to prohibit debt collectors from engaging in abusive, deceptive, or unfair conduct. See 15 U.S.C. §1692, et seq.; Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) ("The FDCPA was passed to protect consumers from deceptive or harassing actions taken by debt collectors."). The West defendants do not dispute that they are "debt collectors" within the meaning of the statute, nor do they dispute that they are subject to the statute. Rather, they argue that plaintiff's Second Amended Complaint should be dismissed because it fails to state a claim upon which relief may be granted. Plaintiff's Second Amended Complaint alleges the following facts against the West defendants:

1. Beginning in 2004, plaintiff received "numerous communications" from West defendants concerning his purported debt to the Advanta Corporation, including letters and telephone calls to his home, and telephone calls and ...


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