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James Nichols v. Frederick J. Hanna & Associates

January 12, 2011

JAMES NICHOLS, PLAINTIFF,
v.
FREDERICK J. HANNA & ASSOCIATES, PC, DEFENDANT.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff James Nichols ("plaintiff" or "Nichols") commenced this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692--1692(p). Plaintiff alleges that defendant violated § 1692e(3) by mailing a debt collection letter (also referred to as a "dunning letter"), written on law firm letterhead, to plaintiff's New York residence-thus implying that defendant could take legal action against plaintiff when, in fact, no member of defendant's firm was licensed to practice law in New York. Plaintiff seeks declaratory and monetary relief pursuant to § 1692(k). Defendant has moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant claims that it is not a violation of § 1692e(3) for an out-of-state attorney to mail a dunning letter on law firm letterhead and maintains that § 1692e(3) merely prohibits non-attorneys from falsely representing that they are attorneys. Plaintiff opposes the motion to dismiss and cross moves for leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15 to add a claim that defendant also violated § 1692e(5).

II. FACTUAL BACKGROUND

The following facts, gleaned from the complaint, are accepted as true for the purposes of this motion to dismiss. See Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964).

Nichols, a resident of Syracuse, New York, owed a debt to a creditor other than defendant. On May 5, 2010, defendant mailed a debt collection letter to plaintiff. This letter was written on defendant's legal letterhead, which included an office address in Georgia, and indicated that defendant represented the creditor to which plaintiff owed a debt. Nichols maintains that this communication was misleading in that it suggested defendant had the ability to take legal action against him in New York. However, no attorney in defendant's firm was licensed to practice law in New York, and no New York attorney had been retained by defendant for the purpose of pursuing legal remedies against plaintiff at the time the letter was sent.

III. DISCUSSION

A. Motion to Dismiss Standard

To survive a 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009).

Dismissal is appropriate only where plaintiff has failed to provide some basis for the allegations that support the elements of his claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

B. Section 1692e(3) Claim

Plaintiff argues that the May 5, 2010, letter violated § 1692e(3) because it falsely implied that defendant was licensed to practice law in New York.*fn1 Defendant asserts that § 1692e(3) merely prohibits non-lawyers from falsely claiming to be lawyers. Defendant is correct.

The FDCPA broadly prohibits the use of "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e.

Section 1692e(3), stated in its entirety, proscribes "[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney." Id. § 1692e(3). In order to carry out the FDCPA's purpose of protecting vulnerable debtors from abusive and misleading practices, courts are required to view attempts to collect "from the perspective of the 'least sophisticated consumer.'" Greco, 412 F.3d at 363 (quoting Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993)). However, an unsophisticated consumer is still to be ...


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