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Jones-Bartley v. McCabe, Weisberg & Conway, P.C.

United States District Court, S.D. New York

November 6, 2014

MUREEN JONES-BARTLEY, on behalf of herself and a class of similarly situated individuals, Plaintiff,
v.
MCCABE, WEISBERG & CONWAY, P.C., Defendant

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[Copyrighted Material Omitted]

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For Plaintiff: Abraham Kleinman, Esq., Kleinman LLC, Uniondale, NY.

For Plaintiff: Tiffany Nicole Hardy, Esq., Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL.

For Defendant: Edmund Kean John, Esq., Swartz Campbell LLC, Philadelphia, PA.

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OPINION AND ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

Plaintiff Mureen Jones-Bartley (" Plaintiff" ) filed the instant Complaint on behalf of herself and a class of similarly situated individuals, alleging that Defendant McCabe, Weisberg & Conway, P.C. (" Defendant" ) violated the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq., when in early 2013 it sent a letter attempting to collect a debt. ( See Compl. (Dkt. No. 1).) Before the Court is Defendant's Motion To Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for, respectively, lack of subject matter jurisdiction and failure to state a claim. ( See Mot. To Dismiss Pl.'s Compl. Pursuant to Rules 12(b)(1) & 12(b)(6) (" Mot." ) (Dkt. No. 24).) For the following reasons, the Court grants Defendant's Motion in part and denies it in part.

I. BACKGROUND

A. Factual History

The Complaint alleges that Defendant " sent [P]laintiff [a] letter . . . . regarding [a] debt" that Defendant " has been attempting to collect from [P]laintiff" and that concerns " an alleged residential mortgage debt incurred for personal, family or household purposes," (Compl. ¶ ¶ 12-14). Plaintiff attached the letter to the Complaint. ( See Compl. Ex. A (" MWC Letter" ).)

The letter, which Defendant appears to have sent to Plaintiff on behalf of a third-party mortgage company that is not named in this suit, comprises three pages. The first page, in relevant part, contains Plaintiff's name and a " Loan [Number]," informs the recipient that there has been a " failure to make . . . payments [on a loan] when due," notifies the recipient that " the mortgagee has elected to . . . declare the entire principal balance of the loan due and payable," and makes a " demand . . . for the amount due." ( Id. at 1.) The letter then states that the " [t]otal principal due as of the date of this notice" is $462,634.03. ( Id.) The second page, in relevant part,

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notifies the recipient that, " [d]espite [the] demand for payment, if any portion of this claim is disputed, [the recipient is] to notify [the sender] within 30 days, indicating the nature of the dispute as to the amount due or any part thereof." ( Id. at 2.) It also contains a valediction and the signature of Megan R. Sterback. ( See id.) Finally, the third page, entitled " Validation of Debt Notice," notifies the recipient, in bold, capitalized letters, that " THIS NOTICE AND LETTER ARE AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." ( Id. at 3.) It also contains, in relevant part, language purporting to satisfy the sender's notification obligation under the FDCPA:

Pursuant to the [FDCPA], a consumer debtor is required to be sent the following notice: (1) unless the consumer, within thirty (30) days after receipt of this notice, disputes the validity of the debt or any portion thereof, the debt will be assumed to be valid by the debt collector, (2) if the consumer sends notice the [sic] debt collector in writing within the thirty-day period that the debt or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a Judgment against the consumer and [the] copy of such verification or Judgment will be mailed to the consumer by the debt collector; and (3) upon the consumer's written request, sent by [the] consumer within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

( Id.) The bottom of the third page also contains the signature of Megan R. Sterback, along with Defendant's name, address, and telephone number. ( See id.)

The Complaint alleges that Defendant sent this letter to Plaintiff " [o]n or about January 28, 2013." (Compl. ¶ 13.) It also alleges that this was " the first letter [P]laintiff received from [D]efendant regarding the debt described therein," and that this was " a form letter used by [D]efendant as the initial letter it sends to a consumer." ( Id. ¶ ¶ 14, 16.)

The Complaint alleges that the letter " fails to comply" with the FDCPA in four ways. ( Id. ¶ 18.) First, the Complaint alleges that the letter violates 15 U.S.C. § 1692g(a)(1) (requiring a debt collector to provide a consumer with " a written notice containing . . . the amount of the debt" ) because the letter provides notice only of the " total principal due as of the date of th[e] notice," whereas the " amount of the debt" owed would " include[] accrued but unpaid interest and other fees and charges," which " generally amount to thousands of dollars." ( Id. ¶ 19.) Second, the Complaint alleges that the letter violates 15 U.S.C. § 1692g(a)(2) (requiring a debt collector to provide a consumer with " a written notice containing . . . the name of the creditor to whom the debt is owed" ) because the letter " completely fails to disclose who the current owner of the debt is." ( Id. ¶ 20.) Third, the Complaint alleges that the letter violates 15 U.S.C. § 1692e (prohibiting " [t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer" ) because the letter does not " specify that the debtor has 30 days after receipt of the letter to dispute the debt," but rather states that the recipient has " 30 days" to dispute the debt, " making the most logical interpretation 30 days from the date of the . . . letter." ( Id. ¶ 21.) Finally, the Complaint alleges that the letter violates 15 U.S.C. § 1692g(a)(3) (requiring a debt collector to provide a consumer with " a written notice containing . . . a statement that

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unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector" ) because the letter states that notification of a dispute within the 30-day period must " state 'the nature of the dispute as to the amount due or any part thereof,'" despite the lack of a statutory requirement to do so. ( Id. ¶ 22 (quoting MWC Letter 2.)

In addition to alleging claims on behalf of Plaintiff, the Complaint alleges the same claims " on behalf of a class" of individuals who received a similar letter. (Compl. ¶ ¶ 25-26.) The Complaint specifically defines a proposed class to include

(a) all natural persons with New York addresses (b) who were sent a letter in the form represented by [the letter sent to Plaintiff and attached to the Complaint] (c) addressed to the same address as that of the mortgaged property (d) on or after a date one year prior to the filing of this action, and (e) on or before a date 20 days after the filing of this action.

( Id. ¶ 26.) The Complaint further alleges that, " [o]n information and belief, there are more than 50 members of the class." ( Id. ¶ 27.)

Based on these allegations, the Complaint seeks a " judgment in favor of [P]laintiff and the class and against [D]efendant for: (1) [s]tatutory damages; (2) [a]ttorney's fees, litigation expenses[,] and costs of suit; [and] (3) [s]uch other and further relief as the Court deems proper." ( Id. at 6-7.)

B. Procedural History

Plaintiff filed the Complaint on July 11, 2013, ( see Dkt. No. 1), and served Defendant four days later, ( see Dkt. No. 4 (Affidavit of Service)). Then, in a letter dated July 16, 2013 and filed pursuant to Rule II.A of the Court's Individual Rules of Practice, Plaintiff requested a premotion conference to discuss her " anticipated motion for class certification and motion to enter and continue [her] motion for class certification." (Letter from Tiffany N. Hardy to Court (July 16, 2013)) (" PMC Letter" ) 1 (Dkt. No. 5).)[1] Plaintiff specifically noted that she requested the conference " in order to avoid having the class claims mooted by a Rule 68 Offer of Judgment or other tender," noting further that " the class needs to be protected" from such an outcome. ( Id.) On July 30, the Court endorsed the letter and directed Defendant " to respond to [the] letter by August 5, 2013." ( Id. at 2.)

Defendant submitted two responses on August 5. First, Defendant submitted a letter requesting a 20-day extension to respond to Plaintiff's letter, which request the Court granted, with Plaintiff's consent. ( See Letter from Swartz Campbell LLC to Court (Aug. 5, 2013) (Dkt. No. 8).) Second, Defendant submitted a separate letter " agree[ing] to [Plaintiff's] request" for a pre-motion conference. (Letter from Edmund K. John to Court (Aug. 5, 2013) (Dkt. No. 9).) The Court endorsed this

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letter, directing Defendant, " [p]er the Court's Individual Practices, . . . to respond to the substance of Plaintiff's July 16 letter by August 15, 2013." ( Id.)[2]

On August 15, Defendant submitted a two-part response to Plaintiff's letter. First, Defendant filed a document entitled " Offer of Judgment Pursuant to [Fed. R. Civ. P.] 68." ( See Offer of J. Pursuant to F.R.C.P. 68 (" Rule 68 Offer" ) (Dkt. No. 10).)[3] The substance of that document reads, in full: " Defendant offers to allow judgment to be entered in favor of plaintiff, Mureen Jones-Bartley, and against defendant in amount [sic] of $1,000, plus attorneys' fees, litigation expenses[,] and costs of suit in amount [sic] to be determined by the Court." ( Id.) Second, Defendant submitted a letter purporting to comply with the Court's order to respond to the substance of Plaintiff's pre-motion letter. ( See Letter from Edmund K. John to Court (Aug. 15, 2013) (Dkt. No. 29).) Although Defendant, in its second August 5 letter, had previously agreed to Plaintiff's request for a pre-motion conference, Defendant opposed Plaintiff's request in its August 15 letter. Specifically, Defendant stated that it " believe[d] that [Plaintiff's proposed] motion [for class certification] [would] not [be] necessary in light of the offer of judgment in an amount to compensate plaintiff for the maximum statutory damages and attorneys' fees and costs incurred to date." ( Id.) In Defendant's view, " [t]his action is no longer justiciable because plaintiff's individual claim is moot as a result of the offer of judgment sufficient to make plaintiff, who admittedly suffered no actual damages and sought only to obtain statutory damages, whole." ( Id.)

Shortly after August 15, Plaintiff sent a letter to the Court responding to Defendant's letter. ( See Letter from Tiffany N. Hardy to Court (Dkt. No. 17).)[4] In that letter, Plaintiff renewed her request for a pre-motion conference " for leave to file her motion for class certification," but also separately requested a pre-motion conference " for a motion to strike" Defendant's Rule 68 Offer. ( See id.) In a letter dated August 23, 2013, Defendant responded to the substance of Plaintiff's letter, arguing that the letter was " factually and legally inaccurate" and maintaining that " Plaintiff's claim remains moot as a result of the

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offer of judgment served on August 15, 2013." (Letter from Swartz Campbell LLC to Court (Aug. 23, 2013) 1-2 (Dkt. No. 14.) After reviewing both letters, the Court endorsed Plaintiff's letter on September 5, informing the Parties that it " [would] hold a pre-motion conference on October 15, 2013." (Dkt. No. 17 at 3.)

On September 18, approximately two weeks later, Defendant filed a Motion To Dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). ( See Dkt. No. 15.) Because Defendant had failed to request a pre-motion conference before filing the motion, the Court, on September 25, summarily denied the motion " without prejudice for failure to follow the Court's Individual Practices." ( See Dkt. No. 18.)

The Court then held the pre-motion conference on October 15, at which conference the Court neither granted nor denied Plaintiff's request to file a motion for class certification. (See Dkt. (minute entry for Oct. 15, 2013).) Instead, it granted Defendant permission to file a Motion To Dismiss the Complaint. ( Id.) Pursuant to a scheduling order adopted at the conference, Defendant filed the instant Motion and accompanying Memorandum of Law on November 18, 2013, ( see Mot. To Dismiss (Dkt. No 24); Mem. of Law in Supp. of the Mot. To Dismiss Pl.'s Compl. (" Def.'s Mem." ) (Dkt. No. 25)), Plaintiff filed an Opposition Memorandum on December 16, 2013, ( see Pl.'s Resp. to Def.'s Mot. To Dismiss (" Pl.'s Mem." ) (Dkt. No. 26)), and Defendant filed a Reply Memorandum on January 3, 2014, ( see Reply Brief in Further Supp. of the Mot. To Dismiss (" Def.'s Reply" ) (Dkt. No. 27)). The Court now turns to a discussion of Defendant's Motion.

II. DISCUSSION

Defendant moves to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). With regard to the 12(b)(1) motion, Defendant argues that " the Court no longer has subject-matter jurisdiction" over the Complaint " [b]ecause the offer of judgment provides compensation to plaintiff for the maximum statutory damages," and therefore " there is no longer a justiciable claim." (Def.'s Mem. 2.) In the alternative, Defendant argues that, " to the extent plaintiff's FDCPA claims are based on" two of the four FDCPA violations alleged in the Complaint, the Court should dismiss the FDCPA claims pursuant to Rule 12(b)(6) because " plaintiff has failed to state a claim upon which relief may be granted." ( Id.)

A. Standard of Review

" A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." John Brady v. Int'l Bhd. of Teamsters, Theatrical Drivers & Helpers Local 187, 741 F.3d 387, 389 (2d Cir. 2014) (internal quotation marks omitted). Dismissal under Rule 12(b)(1) is therefore proper when a case becomes moot. Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (per curiam) (" Under Article III of the U.S. Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action." (alterations and internal quotation marks omitted)). In making this determination, " the district court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). " But where jurisdictional facts are placed in dispute, the court has the

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power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." Id. (alterations and internal quotation marks omitted). Ultimately, " the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (internal quotation marks omitted).

" To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege sufficient facts which, taken as true, state a plausible claim for relief." Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014). In reviewing the Complaint, the Court " accept[s] all factual allegations as true and draw[s] every reasonable inference from those facts in the plaintiff's favor." In re Adderall XR Antitrust Litig., 754 F.3d 128, 133 (2d Cir. 2014) (internal quotation marks omitted). " But this indulgence does not relieve the plaintiff from alleging 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Moreover, along with the Complaint itself, the Court " may consider . . . any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies." ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014) (internal quotation marks omitted).

B. Analysis

1. Rule 12(b)(1)

Defendant first moves to dismiss the Complaint in its entirety because, in its view, the Rule 68 Offer " provides compensation to plaintiff for the maximum statutory damages," and therefore " there is no longer a justiciable claim." (Def.'s Mem. 2.) Because the Complaint asserts claims on behalf of Plaintiff and, separately, on behalf of a potential class, the Court must decide (a) whether Plaintiff's individual claim is moot, and, if so, (b) whether the Court retains subject matter ...


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