United States District Court, S.D. New York
MEMORANDUM AND ORDER
KEVIN NATHANIEL FOX, Magistrate Judge.
On January 21, 2014, Eleanor Capogrosso ("Capogrosso") commenced this action, pursuant to 15 U.S.C. § 1692, et seq., alleging violations of the Fair Debt Collection Practices Act ("FDCPA") by Mitchell Troyetsky, Esq. ("Troyetsky"), arising out of a demand letter for rent in arrears. On May 30, 2014, Capogrosso's counsel made a motion to withdraw as her attorney, which the Court granted. Thereafter, no other attorney appeared in the action to represent Capogrosso; thus, she is proceeding pro se. Capogrosso failed to appear for two pretrial conferences scheduled for January 22 and 29, 2015. Before the Court is the defendant's motion to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted, and, alternatively, Rule 41(b) for failure to prosecute or to comply with a court order(s). Capogrosso has not opposed the motion.
Capogrosso alleges that Troyetsky is an attorney specializing in collecting outstanding consumer debts, and was employed by her landlord, the creditor. According to Capogrosso, in 2013, Troyetsky sent a demand letter to her in the form of "a one-page printout that did not contain any written disclosure." The letter, which is Exhibit A to the complaint, is dated April 5, 2013, and is signed by the landlord, Anthony Barrett ("Barrett"). Troyetsky's address and telephone number are printed at the bottom of the letter. The demand letter states that Capogrosso is indebted to the landlord in the amount of $6, 850 for unpaid rent due for March and April 2013, as well as a $50 late fee. Capogrosso contends that the April 5, 2013 demand letter failed to make proper disclosures, as required in an initial communication from a debt collector, indicating that he is attempting to collect a debt and that any information will be used for that purpose. Moreover, according to Capogrosso, the defendant failed to provide her with a validation notice, within five days of the initial communication.
Troyetsky contends that the complaint should be dismissed because he neither issued nor served the demand letter, but, rather, the landlord did. Further, Troyetsky asserts that Capogrosso's "recitals and conclusory statements in her complaint are insufficient [to state a claim upon which relief can be granted] and implausible." Alternatively, Troyetsky contends dismissal is proper, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, because Capogrosso has failed to prosecute the action. In support of that contention, Troyetsky recounts that Capogrosso did not maintain communication with her former counsel, Hashim Rahman, Esq. ("Rahman"), prompting Rahman to move to be relieved as Capogrosso's attorney. In his motion to be relieved as counsel, Rahman noted that he had attempted to contact Capogrosso by various methods, including ten letters, six e-mail messages and six telephone calls. The Court granted Rahman's motion to withdraw on June 25, 2014. The last filing Capogrosso made in connection with this action was on April 30, 2014.
On June 25, 2014, the Court ordered Capogrosso to provide her address and telephone number to the Court by July 3, 2014; however, she failed to respond timely. Capogrosso sent a letter to the Court dated July 20, 2014, contending that both personal and familial health issues explained her failure to prosecute and asking that her counsel be reinstated. The Court denied her request. In the same letter, Capogrosso provided an updated address, to which the Court sent notice that she risked having this action dismissed for failing to comply with a court order(s) or failing to prosecute the action. Thereafter, Capogrosso failed to attend two pretrial conferences scheduled by the Court for January 22 and 29, 2015. The defendant contends that Capogrosso did not inform the Court why she failed to attend the conferences.
Troyetsky submitted affidavits in support of his motion to dismiss by: (1) his attorney, Sheldon J. Fleishman ("Fleishman"), and (2) Barrett, the plaintiff's former landlord. Barrett's affidavit states that he signed and issued the demand letter, and instructed the superintendent at the building where Capogrosso resided to deliver the letter. Attached to Barrett's affidavit is, inter alia, Exhibit 2, an affidavit of service executed by Andrew Losso, describing the actions he took to serve the demand letter upon Capogrosso.
Rule 12(b)(6) Legal Standard
A party may assert the defense: "failure to state a claim upon which relief can be granted" by a motion. Fed.R.Civ.P. Rule 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court must accept as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At the pleading stage, the plaintiff has an obligation to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Iqbal, 556 U.S. at 678.
When assessing a motion made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters [about] which judicial notice may ...