Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hess v. Cohen & Slamowitz

January 7, 2010

JONATHAN HESS, PLAINTIFF,
v.
COHEN & SLAMOWITZ, LLP, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this unfair debt collection action filed by Jonathan Hess ("Plaintiff") is a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), filed by Cohen & Slamowitz LLP ("Defendant"). (Dkt. No. 6.) For the reasons set forth below, Defendant's motion is granted.

I. BACKGROUND

A. Plaintiff's Claims

The Fair Debt Collection Practice Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq, states, in pertinent part, that "any debt collector who brings any legal action against any consumer shall... bring such action in a judicial district or similar legal entity in which such consumer signed the contract sued upon; or in which such consumer resides at the commencement of the action." See 15 U.S.C. § 1692i(a)(2).

Generally, liberally construed, Plaintiff's Complaint alleges that Defendant violated Plaintiff's rights under FDCPA by "suing [Plaintiff] in a judicial district (i.e., the Syracuse City Court) where [Plaintiff] do[es] not live nor where the alleged credit card contract sued upon was signed...." (See generally Dkt. No. 1 [Plf.'s Compl.].)*fn1 Familiarity with the factual allegations supporting this claim in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Defendant's Motion

Generally, in support of its motion to dismiss, Defendant argues that Plaintiff's cause of action fails to state a claim upon which relief may be granted for the following reasons: (1) although the FDCPA does not define the term "judicial district or similar legal entity," common law within the Second Circuit, including Howell v. Citibank (South Dakota), N.A., 08-CV-6203, 2009 WL 152700 (W.D.N.Y. Jan. 21, 2009), interpret the term as including the county in which a debtor lives (so that Defendant did not violate the FDCPA); and (2) Plaintiff's narrow interpretation of that term as excluding the county in which a debtor lives places unnecessary restrictions on ethical debt collectors, which is contrary to one of the purposes of the FDCPA. (See generally Dkt. No. 6, Attachment 3 [Def.'s Memo. of Law].)

In response, Plaintiff argues, inter alia, as follows: (1) the fact that the Syracuse City Court and Plaintiff reside in the same county is irrelevant because §1692i demands that the court in which the suit is brought have jurisdiction over the debtor; (2) Defendant violated §1692i by suing Plaintiff in Syracuse City Court because that court did not have jurisdiction over Plaintiff pursuant to McKinney's Uniform City Ct. Act § 213, (3) the Court should decline to follow Howell, 2009 WL 152700, because courts in other circuits have made clear that liability under the FDCPA can arise when a debtor lives in the same county as the court in which the suit is brought. (See generally Dkt. No. 7, Attachment 4 [Plf.'s Response Memo. of Law].)

In reply, Defendant argues as follows: (1) the issue of jurisdiction is irrelevant when determining the proper venue under the FDCPA; (2) the cases cited by Plaintiff are distinguishable; (3) to the extent that the cases cited by Plaintiff are not distinguishable, the Court should not follow these cases because they unpersuasive, and persuasive authority on the issue exists among case law decided within the Second Circuit. (See generally Dkt. No. 9 [Def.'s Reply Memo. of Law].)

II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM

For the sake of brevity, the Court will not recite, in this Decision and Order, the well- known legal standard governing dismissals for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), but will direct the reader to the Court's recent decision in Wade v. Tiffin Motorhomes, Inc., 05-CV-1458, 2009 WL 3629674, at *3-5 (N.D.N.Y. Oct. 27, 2009) (Suddaby, J.).

III. ANALYSIS OF PLAINTIFF'S CLAIM UNDER THE FDCPA

As stated above in Part I.B. of this Decision and Order, Defendant seeks the dismissal of Plaintiff's FDCPA claim because (1) common law within the Second Circuit interprets the term "judicial district or similar legal entity" as including the county in which a debtor lives, and (2) Plaintiff's narrow interpretation of the term "judicial district or similar legal entity" as excluding the county in which a debtor lives ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.