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Cameau v. National Recovery Agency

United States District Court, E.D. New York

June 6, 2017

JEFF CAMEAU, Plaintiff,

          EDWARD B. GELLER, ESQ., P.C. Attorney for Plaintiff.

          MIBTZER, SAROWITZ, ZERIS, LEDVA & MEYERS Attorneys for Defendant, Bradley Jay Levien, Esq., David George Peltan, Esq., Brandon M. Wrazen, Esq., Kate McCaul Cifarelli, Esq.


          Denis R. Hurley Unites States District Judge.

         Plaintiff Jeff Cameau (“plaintiff” or “Cameau”) brings this action against defendant National Recovery Agency, Inc. (“defendant” or “NRA”) for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Presently before the Court is defendant's unopposed motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56. For the reasons set forth below, the motion is granted.


         Plaintiff alleges that Defendant began its debt collection efforts by placing calls to plaintiff's home and mobile phone numbers on or about May, 2014. Plaintiff's Complaint focuses on one particular telephone call that plaintiff placed to the defendant on May 29, 2014, presumably in response to the calls from defendant. Plaintiff alleges that on that date, upon being connected with the defendant, plaintiff heard defendant's recorded greeting stating “calls may be recorded” and directing the plaintiff to dial an extension number. Plaintiff, however, did not dial the extension number and was connected to an individual who stated, “calls may be recorded, may I help you?” Plaintiff then inquired as to the name of defendant's company, but the representative ignored plaintiff and identified himself as Chris Nash (“Nash”). Nash then identified a creditor seeking to collect a debt from plaintiff. Plaintiff expressed confusion as to why he instead of his attorney was being contacted about the debt and stated he would call back to provide his attorney's information.


         I. Standard of Review for Summary Judgment

         Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed.R.Civ.P. 56(c)).

         To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a “scintilla of evidence, ” Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or “some metaphysical doubt as to the material facts, ” Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quotingMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on “mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).

         The district court, in considering a summary judgment motion, must also be “mindful of the underlying standards and burdens of proof, ” Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summaryjudgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer “persuasive evidence that [her] claim is not implausible.” Id. at 211 (citing Matsushita, 475 U.S. at 587). “[A] complete failure of proof concerning an essential element of the [non-movant's] case necessarily renders all other facts immaterial.” Crawford, 758 F.3d at 486 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

         “[W]here the non-moving party chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (internal quotation marks and citation omitted). Moreover, the Court may grant an unopposed motion for summary judgment only where “the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (internal quotation marks and citations omitted).

         II. Plaintiff's FDCPA Claim

         Section 1692d(6) of the FDCPA provides that a debt collector in connection with the collection of a debt may not place “telephone calls without meaningful disclosure of the caller's identity.” Courts have held that meaningful disclosure requires the caller to identify the company that he or she represents. Ostrander v. Accelerated Receivables, 2009 WL 909646, at *6 (W.D.N.Y. Mar. 31, 2009) (collecting cases); c.f., Fashakin v. Nextel Comms., 2009 WL 790350, at * 7 (E.D.N.Y. Mar. 25, 2009) (“[I]f an individual debt collector who is employed by a debt collection company accurately discloses the name of her employer and the nature of her business and conceals no more than her real name, ” meaningful disclosure under § 1692d(6) has been made.). Plaintiff claims that defendant violated this provision because “Defendant's representative, ‘Chris Nash, ' refused to identify Defendant's company name to Plaintiff in [the] telephone conversation of May 29, ...

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