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Sam v. Cohen & Slamowitz, LLP

United States District Court, W.D. New York

January 8, 2015

MARK SAM, Plaintiff,
v.
COHEN & SLAMOWITZ, LLP, MITCHELL SELIP, MITCHELL G. SLAMOWITZ, and DAVID A. COHEN, Defendants.

JOHN T. CURTIN, District Judge.

On July 29, 2014, plaintiff Mark Sam filed a complaint seeking relief individually and on behalf of a proposed class of similarly situated plaintiffs based on allegations that defendants violated the venue provision of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692i, [1] by bringing a collection lawsuit against plaintiff in the City Court of the City of Dunkirk, New York, and obtaining a default judgment thereon, at a time when plaintiff was not a resident of the city or of a town contiguous thereto. See Item 1. Plaintiff has moved pursuant to Fed.R.Civ.P. 23 for certification of the class (Item 9), and defendants have cross-moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings, seeking dismissal of the complaint as time-barred (Item 15).

For the reasons that follow, these motions are denied.

BACKGROUND

As alleged in the complaint, defendant Cohen & Slamowitz, LLP ("C&S"), a law firm engaged in the business of debt collection, commenced the Dunkirk City Court action against plaintiff, on behalf of its client Midland Funding, LLC ("Midland"), on or about January 10, 2007, seeking collection of a consumer debt related to an Aspire Visa credit card issued to plaintiff by Columbus Bank and Trust Company. At the time, plaintiff resided at 57 Union Street, Westfield, New York. Subsequently, on a date not set forth in the pleadings, exhibits, affidavits, or other materials in the record currently before the court, C&S obtained a default judgment against plaintiff. See Item 1, ¶¶ 20-24.

Plaintiff alleges that he was never served with the summons and complaint, and never otherwise received notice of the action, the entry of default judgment, or any debt collection activity until he received an income execution from the Chautauqua County Sheriff's office dated April 24, 2014, issued by the law firm of Eltman Eltman & Cooper (EEC) following substitution of attorneys and transfer of the Midland file from C&S to EEC. Id. at ¶¶ 22, 27, 40. Plaintiff further alleges that on May 13, 2014, shortly after receipt of the income execution, his attorney filed an order to show cause in the Dunkirk City Court action seeking to vacate the judgment of default and dismiss the case, and on June 9, 2014, his attorney entered into a written stipulation with EEC on behalf of Midland vacating the default judgment and discontinuing the underlying collection action, with prejudice. Id. at ¶¶ 27-28.

Plaintiff claims that C&S, along with attorneys/partners Mitchell Selip, Mitchell G. Slamowitz, and David A. Cohen (referred to collectively herein as "C&S" or "defendants"), violated the FDCPA's venue provision by bringing the collection action against plaintiff in Dunkirk City Court on January 10, 2007, at a time when plaintiff was not a resident of the City of Dunkirk or of a town contiguous to city, as specified in section 213(a) of the New York Uniform City Court Act ("UCCA").[2] Id. at ¶¶ 26, 29-30. Plaintiff purports to assert this claim on behalf of himself and as representative of a class consisting of:

... (a) all natural persons (b) sued by Defendants (c) in a City Court (d) to collect an amount owed under a consumer credit card account (e) where the person did not reside, at the time suit was filed, within the boundaries of the city containing that court and the towns within the same county that are contiguous by land thereto and (f) where either the original action or a collection proceeding was filed on or after January 10, 2007 through the date of the filing of this action.

Id. at ¶ 47.

Defendants seek dismissal of the action as time-barred, based on the one-year statute of limitations for claims brought under the FDCPA. Defendants further contend that, should the court consider plaintiff's motion for class certification, it should be denied as unsupported and premature.

DISCUSSION

I. Rule 12(c): Judgment on the Pleadings

Rule 12(c) of the Federal Rules of Civil Procedure provides that: "After 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 standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim. Cleveland v. Caplaw Enters., 448 F.3d 518, 520 (2d Cir. 2006). To survive a motion for judgment on the pleadings, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In applying this plausibility standard, "the court must examine the legal sufficiency of the claims alleged in the complaint by taking its factual allegations to be true and drawing all reasonable inferences in the plaintiff's favor." Janese v. Scrufari, 2013 WL 5503953, at *3 (W.D.N.Y. Oct. 2, 2013) ...


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