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Rogers v. Overton

United States District Court, N.D. New York

February 13, 2017

CHERYL ROGERS, Plaintiff,
v.
OVERTON, RUSSELL, DOERR & DONOVAN, LLP, Defendant.

          RC LAW GROUP, PLLC, Attorneys for Plaintiff

          BARCLAY DAMON, LLP, Attorneys for Defendant

          DANIEL KOHN, ESQ. PAUL A. SANDERS, ESQ.

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge

         I. INTRODUCTION

         On June 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. No. 8.

         II. BACKGROUND

         This 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 ¶ 16.

         On 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." Id.

         Currently before the Court is Defendant's motion to dismiss for failure to state a claim. See id.

         III. DISCUSSION

         A. Standard of review

         A 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)).

         To 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 ...


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