United States District Court, E.D. New York
WILLIAM GUERRERO, Individually and on Behalf of all others Similarly Situated, Plaintiff,
GC SERVICES LIMITED PARTNERSHIP, Defendant.
MEMORANDUM AND ORDER
KATHLEEN TOMLINSON U.S. MAGISTRATE JUDGE.
William Guerrero (“Plaintiff” or
“Guerrero”) brings the instant action on behalf
of himself and all others similarly situated against
Defendant GC Services Limited Partnership
(“Defendant” or “GCS”) alleging
violations arising under the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et
seq. See generally Complaint
(“Compl.”) [DE 1]. Presently before the Court is
Plaintiff's motion to amend the Complaint. See
DE 31. For the reasons set forth below, Plaintiff's
motion to amend is GRANTED.
The Proposed Amended Complaint
following information has been taken directly from
Plaintiff's Proposed Amended Complaint. All facts are
assumed to be true for purposes of deciding the motion to
amend and are construed in a light most favorable to the
Plaintiff as the moving party. See, e.g., LaFaro v.
N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir.
2009); Matthews v. City of N.Y., 889 F.Supp.2d 418,
425 (E.D.N.Y. 2012); Alkhatib v. New York Motor Group,
LLC, No. CV 13-2337, 2015 WL 3507340, at *7 (E.D.N.Y.
June 3, 2015) (quoting Mendez v. U.S. Nonwovens
Corp., 2 F.Supp.3d 442, 451 (E.D.N.Y. 2014)) (noting
that the court “is required to accept the material
facts alleged in the amended [pleading] as true and draw
reasonable inferences in the [movant's] favor”).
an individual residing in the State of New York, is a
“consumer” as that term is defined by the FDCPA
since he is “allegedly obligated to pay a debt.”
Am. Compl. ¶¶ 5-6.Defendant, an entity with its
principal place of business in Houston, Texas, is a
“debt collector” within the meaning of the FDCPA
since it is primarily engaged in “a business the
principal purpose of which is the collection of debts”
and because it “uses an instrumentality of interstate
commerce or the mails” in order to engage in the direct
or indirect collection of debts. Id. ¶¶
At some point prior to the filing of the instant action,
Plaintiff incurred a debt that was primarily for
“personal, family or household purposes.”
Id. ¶ 10. Thereafter, Plaintiff was deemed to
have defaulted and the debt was “assigned or otherwise
transferred to Defendant for collection.” Id.
¶ 11-12. As part of its efforts to collect the debt,
Defendant sent Plaintiff a letter on October 2, 2015.
Id. ¶ 13, Ex. 1 (October 2, 2015 Collection
Letter). Plaintiff asserts that Defendant's letter
violated the FDCPA in certain respects. Id. ¶
15. Specifically, Counts One, Three and Four allege
violations of 15 U.S.C. § 1692g, which requires that
certain disclosures be provided to the debtor in the debt
collector's initial communication, or within 5 days
thereafter, see generally Am. Compl.; 15 U.S.C.
§ 1692g, while Counts Two and Five allege violations of
15 U.S.C. § 1692e, which prohibits a debt collector from
using any false, deceptive, or misleading representation or
means in connection with the collection of a debt. See
generally Am. Compl.; 15 U.S.C. § 1692e. In
addition, Count Six alleges that Plaintiff has stated a claim
for actual damages. See Am. Compl. ¶¶
118-127. Because each factual allegation is inextricably
connected with each enumerated count, the Court will briefly
summarize the salient facts contained in each count of the
to Count One, Plaintiff asserts that Defendant's October
2, 2015 letter violated 15 U.S.C. § 1692g by failing to
“clearly” and “explicitly” set forth
“the name of the creditor to whom the debt is
owed.” Am. Compl. ¶¶ 18-24. Although the
letter states “YOU OWE: SPRINT, ” Am. Compl., Ex.
1 (emphasis in original), Plaintiff states that he: (1)
“is unaware of what the alleged debt represents;”
(2) “does not owe ‘Sprint;'” (3)
“does not have an account with any entity named
‘Sprint;'” (4) “never contracted with
an entity named ‘Sprint;'” and (5) does not
owe any money to an entity named ‘Sprint.'”
Id. ¶¶ 25-40. In addition, Plaintiff
claims that “there are more than one hundred (100)
disparate entities registered in New York that begin their
legal name with ‘Sprint'” and therefore
“[t]he least sophisticated consumer would likely be
confused as to which of the more than one hundred (100)
disparate entities registered in New York that begin their
legal name with ‘Sprint' is the alleged creditor to
whom the debt is owed.” Id. ¶¶
32-34. Therefore, because “Defendant failed to
explicitly [and] clearly state the name of the creditor to
whom the debt is owed, ” it violated 15 U.S.C. §
1692g. Id. ¶¶ 39-45.
respect to Count Two, Plaintiff contends that the statement
“YOU OWE: SPRINT, ” Am. Compl., Ex. 1 (emphasis
in original), is “false” since “Plaintiff
does not owe any money to an entity named
‘Sprint'” and that “[t]he least
sophisticated consumer would likely be deceived in a material
way by Defendant's conduct.” Id.
¶¶ 53-57. As such, Plaintiff states that the
statement violates 15 U.S.C. § 1692e by using a
“false, deceptive and misleading representation in its
attempt to collect a debt.” Id. ¶ 64. In
addition, Plaintiff claims that “[b]ecause the
collection letter . . . is reasonably susceptible to an
inaccurate reading, as described in the First Count [of the
Amended Complaint], it is deceptive within the meaning of 15
U.S.C. § 1692e.” Id. ¶ 52.
Count Three, Plaintiff claims that the letter violated 15
U.S.C. § 1692g(a)(3) due to “Defendant's
addition of the words ‘AFTER YOUR RECEIPT OF GC
SERVICES' INITIAL WRITTEN NOTICE TO YOU CONCERNING THIS
DEBT, '” which “would lead the least
sophisticated consumer to believe there was a prior initial
written communication from Defendant.” Id.
¶ 72. Specifically, Plaintiff claims that this
statement, when read together with the surrounding language,
would “confuse the least sophisticated consumer
concerning the time frame to dispute the debt or seek
validation of the debt” and would result in the
“least sophisticated consumer [being] uncertain as to
her rights.” Id. ¶¶ 73-77. As such,
“Defendant has violated § 1692g as the
above-referenced language overshadows the information
required to be provided by that Section.” Id.
to Count Four, Plaintiff alleges that although the letter
states there is a “Balance Due of $807.04, ” Am.
Compl., Ex. 1, Defendant has run afoul of 15 U.S.C. §
1692g(a)(1) by failing to convey the amount of the debt
clearly - because the letter “fails to disclose whether
the balance may increase due to interest and fees.” Am.
Compl. ¶¶ 84-89, 104. Specifically, Plaintiff
claims that “[t]he least sophisticated consumer would
be confused as to how she could satisfy the debt” since
a consumer “might believe she could pay the debt in
full by remitting the sum stated in the letter at any time
after she received the letter” but that “such a
belief may or may not be correct, as Defendant has failed to
disclose whether the balance may increase due to interest and
fees.” Id. ¶¶ 90-92. In light of
this alleged ambiguity, Plaintiff contends that
“Defendant has violated § 1692g as it failed to
clearly, explicitly and unambiguously convey the amount of
the debt.” Id. ¶ 105.
Count Five alleges that the manner in which the letter sets
forth the amount of the debt also violates § 1692e
because “Defendant's letter [ ] fails to disclose
whether the balance may increase due to interest and
fees” and therefore “[t]he least sophisticated
consumer would likely be deceived by Defendant's
conduct.” Id. ¶¶ 106-114.
Consequently, Plaintiff claims that “Defendant has
violated § 1692e by using a false, deceptive and
misleading representation in its attempt to collect a
debt.” Id. ¶ 117.
in Count Six, Plaintiff appears to be claiming actual damages
based upon his assertions that Defendant's actions caused
him to: (1) “be distracted from his work;” (2)
“lose time at work;” (3) “waste
time;” and (4) “fight with his wife.”
Id. ¶¶ 118-127.
Relevant Procedural History
instituted this action on December 23, 2015 by filing a
Complaint. DE 1. A summons was issued to Defendant on January
5, 2016 and it was returned executed on January 14, 2016. DE
6. Thereafter, on February 4, 2016, Defendant filed its
Answer. DE 9. On February 17, 2016, Defendant amended its
Answer. DE 12. Subsequently, on June 1, 2016, the Court held
an Initial Conference during which it noted that Plaintiff
sought leave to file an Amended Complaint and directed the
parties as follows:
The May 25, 2016 letter motion to Judge Hurley seeking a
pre-motion conference [DE 24] for purposes of leave to file a
First Amended Complaint is deemed MOOT. In cases that are
assigned to Judge Hurley, the assigned Magistrate Judges
handle motions to amend. Based on today's discussion, the
Court directed plaintiff's counsel to provide
defendant's counsel with a copy of the proposed First
Amended Complaint by June 13, 2016. Defendant's counsel
will then have until June 20, 2016 to review the amended
pleading and to communicate with plaintiff's counsel
whether the defendant can consent to the amended pleading. If
so, the parties are directed to file an appropriate
Stipulation on ECF embodying their agreement by June 24,
If the defendant is unable to consent, then the Court has set
the following briefing schedule in consultation with the
• Plaintiff's opening papers and memorandum of law
must be served and filed by July 8, 2016;
• Defendant's opposition papers and memorandum of
law have to be served and filed by July 18, 2016;
• Plaintiff's reply papers, if any, must be served
and filed by July 25, 2016.
DE 27. On July 7, 2016, Plaintiff filed the instant motion
seeking to amend the Complaint.
31-33. On July 18, 2016, Defendant filed its opposition [DE
36] and on July 20, 2016, Plaintiff filed his reply. DE 37.
In addition, on January 11, 2017, Plaintiff filed a Notice of
Supplemental Authority. DE 38. The Court now turns to the
Plaintiff's Motion to Amend