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Hallmark v. Overton, Russell, Doerr & Donovan, LLP

United States District Court, W.D. New York

June 26, 2013

MICHAEL HALLMARK, Plaintiff,
v.
OVERTON, RUSSELL, DOERR AND DONOVAN, LLP, Defendant

Filed: June 27, 2013.

For Plaintiff: LAW OFFICES OF KENNETH HILLER, PPLC (SETH ANDREWS, ESQ., OF COUNSEL), Amherst, New York.

For Defendant: OVERTON RUSSELL DOERR & DONOVAN LLP (THOMAS R. McCORMICK, ESQ., OF COUNSEL), Clifton Park, New York.

OPINION

JOHN T. CURTIN, United States District Judge.

Page 508

INTRODUCTION

Plaintiff commenced this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq . (" FDCPA" ). Currently pending before the court are defendant's motions to dismiss for failure to state a claim (Item 10) and for sanctions (Item 11) and plaintiff's motion for leave to amend/correct the complaint (Item 14).

BACKGROUND and FACTS

Plaintiff commenced this action with the filing of a complaint on November 14, 2012 (Item 1). He alleged that he incurred a debt and subsequently defaulted on that debt. Id., ¶ ¶ 9, 11. In October 2011, defendant began calling the plaintiff in an attempt to collect the debt. Id., ¶ 13. Plaintiff further alleged that, in some of those telephone calls, defendant stated to the plaintiff that plaintiff was not authorized to record the conversation between plaintiff and defendant. Id., ¶ 14. Plaintiff stated that this conduct violates the FDCPA in that the " least sophisticated consumer" would be led to believe that it was illegal to record the conversation. In fact, under New York State law, if both parties are located in New York, there is no requirement that a party to a conversation have the consent of the other party in order to record the conversation. Id., ¶ ¶ 16-17.

Defendant filed its answer to the complaint on December 14, 2012 (Item 4). Following an initial scheduling conference, the court referred the case to mediation and directed the parties to select a mediator by April 26, 2012 (Item 8). On April 26, 2013, the defendant filed a motion to dismiss for failure to state a claim (Item 10) and a motion for sanctions (Item 11). Defendant argued that plaintiff's interpretation of its statements regarding the recording of telephone conversations was " illogical, bizarre, and idiosyncratic" and that its conduct was neither deceptive, abusive, nor misleading (Item 10, Affidavit in Support, ¶ ¶ 4, 6). Accordingly, defendant argued that plaintiff failed to state a claim pursuant to the FDCPA as a matter of law. Additionally, defendant sought sanctions pursuant to Fed.R.Civ.P. 11, stating that plaintiff's suit was legally and factually baseless and commenced in bad faith, " solely for purposes of harassment and/or forcing the Defendant to agree to settlement . . .." (Item 11, Memorandum of Law, p.1).

Page 509

On May 24, 2013, plaintiff filed a memorandum in opposition to the motion for sanctions (Item 13), a memorandum in opposition to the motion to dismiss (item 15), and a motion for leave to amend/correct the complaint (Item 14). Specifically, plaintiff sought to clarify the nature of his claim against the defendant and to withdraw his claim for actual damages.

Defendant filed replies to its motions (Items 20, 21) and an affidavit in opposition to the plaintiff's motion to amend (Item 19). The court heard oral argument on the motions on June 12, 2013. For the reasons that follow, the ...


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