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Sussman v. I.C. System, Inc.

United States District Court, S.D. New York

March 6, 2013

David SUSSMAN a/k/a Mark Sussman, M.D. Sussman individually and on behalf of all others similarly situated, Plaintiff,
I.C. SYSTEM, INC., Defendant.

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Aytan Yehoshua Bellin, Petroff & Bellin, LLP, Jeffrey M. Eilender, Schlam Stone & Dolan LLP, New York, NY, for Plaintiff.

Kenneth A. Elan, New York, NY, for Defendant.


RAMOS, District Judge:

Plaintiff David Sussman (" Sussman" ) commenced this action against Defendant I.C. System, Inc. (" Defendant" or " I.C." ) alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (" FDCPA" or the " Act" ) and Section 399-p of the New York General Business Law (" GBL" ). Doc. 1 (" Compl." ) ¶¶ 39-48. Before the Court is I.C.'s Motion to Dismiss the Complaint for failure to state a claim.[1] Doc. 19. For the reasons set forth below, Defendant's motion is GRANTED in part and DENIED in part.

I. Factual Background

Plaintiff is a New York citizen residing in Monsey, New York. (Compl. ¶ 9.) Defendant is a collection agency with its principal place of business in Minnesota. ( Id. ¶ 11.) Plaintiff alleges that from on or about October 1, 2011 to the date of the filing of the Complaint, January 10, 2012, in an attempt to collect a debt for home telephone bills which Plaintiff did not owe, Defendant placed over 50 calls to Plaintiff's residential telephone lines without Plaintiff's consent. ( Id. ¶ 19.) Defendant placed these calls using an automatic dialing-announcing

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device. ( Id. ) The calls terminated either prior to or as soon as Plaintiff, members of Plaintiff's household, or Plaintiff's voice mail answered the call. ( Id. ) In these calls, Defendant failed to identify the name of the person making the call, the person on whose behalf the calls were being made, or the address and telephone number of the person on whose behalf the calls were being made. ( Id. ¶ 20.) Plaintiff alleges that nothing in federal, state or local law prohibited the Defendant form making such disclosures. ( Id. ) On or about November 4, 2011, Plaintiff informed Defendant in writing that he did not owe anything and instructed Defendant to stop harassing him. ( Id. ¶ 21.) Plaintiff alleges that Defendant continued to make calls to Plaintiff's residential telephone lines even after Plaintiff instructed Defendant to stop harassing him. ( Id. )

Plaintiff further alleges that from three years prior to the date of the filing of the Complaint to January 10, 2012, Defendant used the automatic dialing-announcing device to place over 100,000 calls to thousands of persons in New York. ( Id. ¶ 22.) In these calls, Defendant hung up either prior to or after the phone was picked up by a person or answering device, and otherwise did not identify the address of the persons on whose behalf the calls were being made. ( Id. )

II. Legal Standard for a Motion for Judgment on the Pleadings

Rule 12(c) provides that " [a]fter the pleadings are closed— but early enough not to delay trial— a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The Court applies the same standard of review to a Rule 12(c) motion as it does to a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6). Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006).

When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff's favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010). However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In order to satisfy the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support its claims with sufficient factual allegations to show " more than a sheer possibility that a defendant has acted unlawfully." Id. " Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (internal quotation marks omitted).

III. Plaintiff's New York Law Claim is Not Preempted by the TCPA

Plaintiff alleges that Defendant's calls violated New York GBL § 399-p, which requires that any person using an automatic dialing-announcing device state at the beginning of the call the nature of the call and the name, address and telephone number of the person on whose behalf the message is being transmitted. N.Y.G.B.L. § 399-p(3). Defendant argues that

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GBL § 399-p is preempted by the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227, insofar as GBL § 399-p applies to calls made from outside New York, as Defendant contends the calls in this case were. (Def.'s Mem. L. at 9.)

Federal law can preempt state law if Congress expresses its intent to preempt the law through explicit statutory language or, in the absence of explicit statutory language, if the state law regulates conduct in a field that Congress intended the federal government to occupy exclusively (" field preemption" ) or if state law directly conflicts with federal law (" conflict preemption" ). See N.Y. Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995); Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 641 (2d Cir.2005). The key factor in determining whether a state law has been preempted is the intent of Congress. N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir.2010) (citation omitted). The determination that a state law is preempted under the field or conflict preemption theories is generally based on the implied manifestations of congressional intent. Id.

a. Presumption Against Preemption

Courts addressing claims of preemption start from the presumption that Congress does not intend to supplant state law. Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir.2012). Accordingly, the legislative exercise of the " historic police powers of the State" is not to be superseded by a federal statute unless it was " the clear and manifest purpose of Congress" to do so. N.Y. SMSA Ltd. P'ship, 612 F.3d at 104 (citing Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009)). However, the presumption is generally not applied when a state regulates in an area " ...

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