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Mateo Patisso v. Law Offices of Bruce E. Baldinger

October 24, 2011


The opinion of the court was delivered by: Seybert, District Judge:


Plaintiff Mateo Patisso commenced this action pro se against the Law Offices of Bruce E. Baldinger, LLC, Bruce E. Baldinger, Howard A. Teichman and Pat Galler (collectively, "Defendants") asserting violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1962, et seq. ("FDCPA"), and New York General Obligations Law § 349. Pending before the Court is Defendants' motion to dismiss and Plaintiff's motions to disqualify defense counsel, to hold defense counsel in criminal contempt, and to strike Defendants' motion to dismiss. For the following reasons, Defendants' motion is GRANTED and Plaintiff's motions are DENIED.*fn1


The claims in this case relate to a lawsuit pending before Judge Peter G. Sheridan in the District of New Jersey. On or about June 18, 2010, Defendant Baldinger commenced that suit against Plaintiff and others asserting seven causes of action in tort: defamation per se, invasion of privacy, injurious falsehood, defamation, trade libel, tortious interference with business, and intentional infliction of emotional distress. (Compl. ¶ 25.) Plaintiff failed to appear in the action, and default judgment was entered against him on September 9, 2010, in the amount of $195,000. (Compl. ¶¶ 27-28.) Immediately thereafter, "Defendant(s)"*fn3 initiated collection activity against Plaintiff, including: "telephoning plaintiff, sending emails, sending written correspondence to plaintiff and others, enforcing the judgment, issuing writs of execution and garnishment." (Compl. ¶ 28.) Plaintiff asserts that these communications failed to comply with the requirements of the FDCPA because Defendants used threatening and obscene language, Defendants failed to identify themselves and state that Plaintiff owed a debt, and the communications occurred at unusual times and in unusual places such as his place of employment. (Compl. ¶¶ 30-32.)

On or about February 8, 2011, Judge Sheridan ordered Baldinger to show cause why the default judgment entered against Plaintiff should not be vacated and temporarily enjoined Baldinger from enforcing the judgment. (Compl. ¶ 33.) On or about February 28, 2011, the default judgment was vacated. (Compl. ¶ 33.) Plaintiff asserts that Defendants continued their collection activities even after the temporary restraining order was entered by seeking a writ of execution to be issued to Plaintiff's bank and garnishing Plaintiff's bank accounts. (Compl. ¶ 34, 37.)

On April 22, 2011, Plaintiff filed his Complaint in this action asserting violations of the FDCPA and New York General Business Law § 349 arising out of Defendants' attempts to collect on the default judgment.

Defendants, represented by Baldinger, an attorney admitted in the Eastern District of New York, moved to dismiss the Complaint (1) for failure to state a claim, FED. R. CIV. P. 12(b)(6), (2) for improper venue, FED. R. CIV. P. 12(b)(3), and (3) as against Defendants Teichman and Galler for lack of personal jurisdiction, FED. R. CIV. P. 12(b)(2).*fn4 Plaintiff opposed the motion to dismiss and moved to disqualify Baldinger as defense counsel and to strike all of his filings in this action for violating New York Judiciary Law § 470. Because the Court finds that dismissal is proper under Rule 12(b)(6) and all of Plaintiff's motions are meritless, the Court will not address Defendants' other arguments.


Standard under Rule 12(b)(6)

In deciding Rule 12(b)(6) motions to dismiss, the

Court applies a "plausibility standard," which is guided by "[t]wo working principles," Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). First, although the Court must accept all allegations as true, this "tenet" is "inapplicable to legal conclusions;" thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft, 129 S. Ct. at 1949). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Pro se plaintiffs enjoy a somewhat more liberal pleading standard. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotations marks and citations omitted). However, pro se plaintiffs must still "comport with the procedural and substantive rules of law." Javino v. Town of Brookhaven, 06-CV-1245, 2008 WL 656672, at *3 (E.D.N.Y. Mar. 4, 2008).

II. Fair Debt Collection Practices Act The FDCPA provides a cause of action for consumers who have been exposed to "abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e). As a threshold matter, a suit brought under the FDCPA must involve a "debt" within the meaning of the statute. See Shmerkocvich v. RMC Consulting Grp. LLC, No. 09-CV-5490, 2011 WL 887871, at *4 (E.D.N.Y. Jan. 31, 2011), adopted by 2011 WL 900850 (E.D.N.Y. Mar. 14, 2011); Beal v. Himmel & Bernstein, LLP, 615 F. Supp. 2d 214, 216 (S.D.N.Y. 2009). Defendants argue that Plaintiff's FDCPA claims do not involve a "debt" and thus must be dismissed. The Court agrees.

The statute defines "debt" as: any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household ...

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