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John M. Franasiak v. Palisades Collection

September 29, 2011

JOHN M. FRANASIAK, PLAINTIFF,
v.
PALISADES COLLECTION, LLC, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

In this action, Plaintiff John M. Franasiak asserts claims pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq., and the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. Plaintiff's claims arise from Defendant's use of an automated telephone dialing system to telephone Plaintiff's residence multiple times over a period of seven months. Plaintiff seeks to recover actual damages, statutory damages pursuant to 15 U.S.C. § 1692k and 47 U.S.C. § 223(b)(3)(B), treble statutory damages pursuant to 47 U.S.C. § 227b(3), and costs, disbursements, and reasonable attorney's fees pursuant to 15. U.S.C. § 1692k. Presently before this Court is Defendant's Motion for Partial Judgment on the Pleadings.*fn1

Defendant's motion raises the issue of whether the TCPA applies to calls by debt collectors to nondebtors. This Court first confronted that question in Spencer v. Arizona Premium Finance Co., Inc., No. 06-CV-160S, 2008 WL 5432245, at *2 n.2 (W.D.N.Y. Dec. 30, 2008). Although at that time, this Court did not have occasion to provide an answer, the present case puts the matter squarely before the Court. For the reasons discussed below, Defendant's motion is granted.

II. BACKGROUND

A. Facts

In adjudicating Defendant's Motion for Partial Judgment on the Pleadings, this Court assumes the truth of the following factual allegations contained in the Complaint. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)). Plaintiff, John Franasiak, is a resident of Erie County, New York. (Complaint ("Comp."), Docket No.1, ¶ 5.) Defendant, Palisades Collection, LLC ("Palisades") is a Delaware corporation engaged in the debt collection business. (Id. at ¶ 6.)

In January 2009 Palisades began calling Franasiak about a debt owed by Franasiak's daughter, Joy Segal. (See id. at ¶¶ 22.) Defendant called Franasiak despite the fact that Segal neither lived with her father, nor shared a phone number. (Id. at ¶ 20.) Furthermore, Plaintiff himself did not owe a debt. (See id. at ¶¶ 17, 18, 21.) Franasiak informed Defendant of these facts on multiple occasions. (Id. at ¶ 25.) Plaintiff went so far as to send Defendant a cease and desist letter, all to no avail. (Id.) Defendant continued contacting Franasiak several times a week through the use of an artificial or prerecorded voice message concerning Segal's debt. (Id. at ¶ 27.) On the basis of these messages, Plaintiff filed suit.

B. Procedural History

Plaintiff commenced this action on September 24, 2009, alleging Defendant's phone calls were in violation of the FDCPA and TCPA. Defendant filed a motion for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on March 24, 2010, asking this Court to dismiss Plaintiff's TCPA claim. Following Plaintiff's Response on April 13, 2010 and Defendant's Reply on April 26, 2010, Plaintiff provided this Court with further case law in support of his opposition. Defendant followed suit and filed a series of newly entered opinions from the Northern District of Alabama, the Eastern District of Michigan, the Western District of New York, and the 11th Circuit Court of Appeals.

On December 17, 2010 the parties filed a joint motion to stay this case pending a decision on Defendant's Motion for Partial Judgment on the Pleadings. (Docket No. 27.) The case was subsequently stayed by order of Magistrate Judge Jeremiah J. McCarthy on December 20, 2010.

III. DISCUSSION

A. Legal Standards

1. Judgment on the ...


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