United States District Court, N.D. New York
GROUP, PLLC, Attorneys for Plaintiff
BARCLAY DAMON, LLP, Attorneys for Defendant
KOHN, ESQ. PAUL A. SANDERS, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
29, 2016, Cheryl Rogers ("Plaintiff") commenced
this action alleging that Overton, Russell, Doerr, and
Donovan, LLP ("Defendant") violated 15 U.S.C.
§§ 1692 et seq., commonly referred to as
the Fair Debt Collections Practices Act ("FDCPA").
See Dkt. No. 1 at ¶ 1. Currently before the
Court is Defendant's motion to dismiss. See Dkt.
action concerns Plaintiff's alleged consumer debt as
defined by 15 U.S.C. § 1692a(5) and Defendant's
inaction as a debt collector to provide the credit bureau
with a status update for Plaintiff's alleged debt.
See Dkt. No. 1 at ¶¶ 9, 13, 16. Nearly two
years before April 6, 2016, Defendant reported
Plaintiff's alleged debt to a credit bureau. See
id. at ¶ 11; Dkt. No. 8 at 1. On April 6, 2016,
Plaintiff sent Defendant a letter to dispute the alleged
debt. See Dkt. No. 1 at ¶ 12. On June 1, 2016,
Plaintiff examined her credit report and saw that Defendant
had neither removed the credit account nor marked it as
"disputed by consumer." Id. at ¶ 13.
As a result, Plaintiff asserts that Defendant violated
"various provisions of the FDCPA, including but not
limited to 15 U.S.C. §§ 1692d, 1692e(2), 1692e(5),
1692e(8), 1692e(10), and 1692f." Id. at ¶
August 23, 2016, Defendant filed a motion to dismiss pursuant
to Rule 12(b)(6). See Dkt. No. 8. Defendant argues
that the complaint raises a single legal issue, "whether
a debt collector has an affirmative/continuing duty to report
to a credit bureau Plaintiff's dispute learned after the
initial report." Id. at 2. Defendant further
contends "that a debt collector owes no affirmative
post-reporting duty to communicate a dispute."
before the Court is Defendant's motion to dismiss for
failure to state a claim. See id.
Standard of review
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure tests
the legal sufficiency of the party's claim for relief.
See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.
2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded
facts in the pleading and draw all reasonable inferences in
the pleader's favor. See Lanier v. Bats Exch.,
Inc., 838 F.3d 139, 150 (2d Cir. 2016) (citing ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir. 2007)). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally
limited to the facts presented in the pleading, the court may
consider documents that are "integral" to that
pleading, even if they are neither physically attached to,
nor incorporated by reference into, the pleading. See
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
survive a motion to dismiss, a party need only plead "a
short and plain statement of the claim, " see
Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft
to 'sho[w] that the pleader is entitled to relief[,
]'" Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557 (2007) (quotation omitted). Under this standard, the
pleading's "[f]actual allegations must be enough to
raise a right of relief above the speculative level, "
see Id. at 555 (citation omitted), and present
claims that are "plausible on [their] face, "
id. at 570. "The plausibility standard is not
akin to a 'probability requirement, ' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (citation
omitted). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability,
it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'"
Id. (quoting [Twombly, 550 U.S.] at 557,
127 S.Ct. 1955). Ultimately, "when the allegations in a
complaint, however true, could not raise a ...