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Carubia v. Cohen & Slamowitz LLP

United States District Court, N.D. New York

January 23, 2015

MICHAEL CARUBIA, Plaintiff,
v.
COHEN & SLAMOWITZ LLP and MIDL FUNDING LLC, Defendants.

MICHAEL CARUBIA, Plaintiff, Pro Se, Rensselaer, NY.

PODVEY, MEANOR LAW FIRM, WENDY B. SHEPPS, ESQ., Attorneys for Defendant Cohen & Slamowitz LLP, New York, NY.

WILSON, ELSER LAW FIRM, JOSEPH L. FRANCOEUR, ESQ., THOMAS A. LEGHORN, ESQ., Attorneys for Defendant Midland Funding LLC, New York, NY.

MEMORANDUM-DECISION & ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Plaintiff Michael Carubia ("Carubia" or "plaintiff"), proceeding pro se, filed this action against defendants Cohen & Slamowitz LLP ("Cohen") and Midland Funding LLC ("Midland") alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA" or the "Act").

Defendants Cohen and Midland (collectively "defendants") have each moved for a judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c) seeking dismissal of Carubia's complaint in its entirety. Although an opposition to both motions was due on January 6, 2015, plaintiff failed to respond. Both pending motions were considered on the basis of the submissions without oral argument.

II. BACKGROUND[1]

Carubia is a resident of Rensselaer County, New York "who allegedly owed a debt to Midland, " a debt collection agency. Compl. ¶¶ 4(a)-(b). At some point, Midland (and/or its attorneys at Cohen) employed a process server to serve legal documents on plaintiff in connection with this outstanding debt. Id . ¶ 14. Plaintiff alleges that the process server "harassed the tenant that lived upstairs from [plaintiff] about [plaintiff's] whereabouts." Id . Plaintiff further alleges that this process server "had not obtained permission from the landlord to be on the property... [or] to enter the building and start interviewing tenants." Id . (internal quotation marks omitted).

On April 30, 2013, a state court traverse hearing occurred "pertaining to the validity of service of the summons and complaint by the process server." Compl. ¶ 7. However, at some point before this hearing took place, Midland's attorney "entered the room where [plaintiff] was meeting with [his] attorney... probably for the purpose of discussing out of court settlement options." Id . ¶ 9(a). According to plaintiff, "this had the effect of communication with [him] before clearing it with [his] attorney first." Id.

Carubia also alleges that the above-mentioned process server entered the room where plaintiff was meeting with his attorney. Compl. ¶ 15. Plaintiff claims that when he "explained to [the process server] that to be even legally driving around [in that capacity], she needed to have additional insurance coverage to cover the business use of her personal vehicle, " both the process server and Midland's attorney stated that "[i]t doesn't matter." Id . According to plaintiff, this rendered the affidavit of service "counterfeit." Id.

Finally, Carubia alleges that Midland "won" the traverse hearing and represented that it "wanted a trial." Compl. ¶ 13. However, according to plaintiff, Midland "never intended to pursue a trial against [him]." Id.

III. LEGAL STANDARDS

A. Judgment on the Pleadings-Legal Standard

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 standard for granting a [Rule 12(c)] motion... is identical' to that of a 12(b)(6) motion to dismiss." Ginsburg v. City of Ithaca, 839 F.Supp.2d 537, 540 (N.D.N.Y. 2012) (quoting Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001)).

"Where, as here, the complaint was filed pro se, it must be construed liberally to raise the strongest arguments it suggests. Nonetheless, a pro se complaint must state a plausible claim for relief." Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (citation omitted). In other words, a plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Dismissal is appropriate only if, construing the complaint liberally and drawing all reasonable inferences in the ...


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