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Ellis v. Cohen & Slamowitz

March 26, 2010

DENNIS ELLIS, PLAINTIFF,
v.
COHEN & SLAMOWITZ, LLP, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Dennis Ellis brings this action against defendant Cohen & Slamowitz, LLP (C&S) under the Fair Debt Collection Practices Act (FDCPA)*fn1 and New York General Business Law § 349. (Compl., Dkt. No. 1.) Pending is C&S's motion to dismiss. (Dkt. No. 8.) For the reasons that follow, C&S's motion is denied.

II. Background

On January 12, 2009, defendant C&S sent a letter to plaintiff Dennis Ellis demanding that he pay $6,370.35 for an alleged debt owed to Target National Bank. (See Compl. ¶ 6, Dkt. No. 1.) C&S advised Ellis that Target referred Ellis's account to its law office for collection. (See Letter One, Dkt. No. 1:2.) In the letter, C&S also provided Ellis with a "Validation Notice," which stated: (1) that unless Ellis disputed the validity of the debt within thirty days, the debt would be assumed valid; and (2) that if Ellis disputed any portion of the debt, S&C would obtain and mail a verification of the debt to him. (See id.)

On January 29, 2009, C&S sent Ellis a second letter entitled "Tax Season Special Discount." (See Letter Two, Dkt. No. 1:3.) In this second letter, C&S stated that it was offering Ellis "a savings of 30% off on the outstanding balance owed on [his] account ... [and] will accept the reduced sum of $4,490.75 if [he] pay[s] this amount on or before February 25, 2009." (Id.) In a third letter, also dated January 29, 2009, C&S advised Ellis that "[o]ur client has authorized us to commence suit against you." (Letter Three, Dkt. No. 1:4.) This third letter does not mention either of the previous two letters or Ellis's ability to seek validation of the debt or the tax season discount offer.

Following the receipt of these letters, Ellis filed suit against C&S on July 16, 2009, under the FDCPA and New York General Business Law based on allegations that the contents of the individual letters, the sequence of the letters, and the letters in the aggregate were deceptive and misleading and overshadowed and contradicted his validation rights. (See Compl. ¶¶ 16-36, Dkt. No. 1.) As a result, Ellis seeks actual and statutory damages, attorneys' fees and costs, a declaration that C&S violated the FDCPA and New York General Business Law, and an injunction preventing C&S from sending letters offering a discount without a notice of the attendant tax ramifications. (See id. at 10.) On September 3, 2009, C&S moved to dismiss each of Ellis's claims under FED. R. CIV. P. 12(b)(6). (See Dkt. No. 8.)

III. Standard of Review

Rule 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court's task is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003) (internal quotation marks and citation omitted). Therefore, in reviewing a motion to dismiss, a court "must accept the facts alleged in the complaint as true and construe all reasonable inferences in [the plaintiff's] favor." Fowlkes v. Adamec, 432 F.3d 90, 95 (2d Cir. 2005) (citation omitted).

"To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd.,493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted). Rather, the claim must be "plausible on its face." Id. at 570. "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." Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949 (2009) (citation omitted). Thus, the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," id., but "does not impose a probability requirement," Twombly, 550 U.S. at 556.

IV. Discussion

A. The Fair Debt Collection Practices Act

The FDCPA establishes a general prohibition against the use of "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Section 1692e includes sixteen subsections that set forth a non-exhaustive list of practices that fall within this ban. See Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). The subsections relevant to the pending motion include: (2) The false representation of -- (A) the character, amount, or legal status of any ...


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