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Umoh v. Marks

June 25, 2010

AKANIMOH UMOH, PLAINTIFF,
v.
PAUL MARKS; LAW OFFICE OF PAUL MARKS; AND CAPITAL REGION AMBULATORY SURGERY CENTER, DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Akanimoh Umoh commenced this action against defendants Paul Marks, Law Office of Paul Marks, and Capital Region Ambulatory Surgery Center (CRASC), alleging violations of the Fair Debt Collection Practices Act (FDCPA)*fn1 and New York General Business Law in connection with the collection of an alleged debt owed by Umoh. (Compl., Dkt. No. 1.) Pending are CRASC's motion to dismiss, and Umoh's motion to amend his complaint. (Dkt. Nos. 8, 14.) For the reasons that follow, CRASC's motion to dismiss is granted in part and denied in part, and Umoh's motion to amend is granted in part and denied in part.

II. Standard of Review

Rule 15(a) provides that where a party seeks to amend his pleading before trial, "[t]he court should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). "A motion to amend should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party." Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987) (internal quotation marks and citation omitted).

"An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of N. Hempstead, 282 F.3d 83, 88 (2d Cir. 2002) (citation omitted). Accordingly, where the plaintiff submits a proposed amended complaint, "the district judge may review that pleading for adequacy and need not allow its filing if it does not state a claim upon which relief can be granted." Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). However, the court "should not deny leave to file a proposed amended complaint ... 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 ...." Id. (internal quotation marks and citation omitted).

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.

III. Discussion

A. The Fair Debt Collection Practices Act

1. Debt Collector Status

The FDCPA prohibits "debt collector[s]" from using "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. A "debt collector" is defined as: any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another.

15 U.S.C. § 1692a(6). The term "debt collector" also includes "any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts." Id. Otherwise, "[a]s a general matter, creditors are not subject to the FDCPA." Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir. 1998); see also 15 U.S.C. § 1692a(4) (defining a creditor as one "who offers or extends credit creating a debt or to whom a debt is owed"). The rationale behind the FDCPA's targeting of debt collectors is that "[u]nlike creditors, who generally are restrained by the desire to protect their good will when collecting past due accounts," independent debt collectors are not likely to have further contact with the consumer and consequently are not concerned with the risk that a negative reputation regarding their collection practices will threaten their access to future consumers. Harrison v. NBD Inc., 968 F. Supp. 837, 841 (E.D.N.Y. 1997) (internal quotation marks and citation omitted); see also Williams v. Citibank, N.A., 565 F. Supp.2d 523, 528 n.6 (S.D.N.Y. 2008).

Here, in his proposed amendments, Umoh alleges that CRASC "engage[s] in the business of providing medical facilities to doctors and collecting debts on their behalf." (Proposed Am. Compl. ¶ 10, Dkt. No. 14:2.) As to his claims against CRASC, Umoh alleges that in September 2005, he underwent surgery that was performed at CRASC's facility by a doctor who "was not employed by CRASC or affiliated with them in anyway." (Id. at ¶ 11.) He then contends that he was billed by CRASC for the surgery "even though those services were not performed by CRASC"; that any debt that may have existed "was owed to the doctor [who] performed his surgery only"; that he was "never billed for the use of the facility"; and that "the debt [CRASC] sought to collect was not their own debt." (Id. at ¶¶ 12, 21-23.) Umoh further contends that CRASC's sending of numerous letters in 2007 regarding the alleged debt and its "failure to inform ...


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