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Winehouse v. GC Services Ltd. Partnership

United States District Court, E.D. New York

June 6, 2017

SHIFRA WINEHOUSE, on behalf of herself and all other similarly situated consumers, Plaintiff,
v.
GC SERVICES LIMITED PARTNERSHIP, Defendant.

          For the Defendant: WILLIAM S. HELFAND Lewis, Brisbois, Bisgaard & Smith LLP., ADAM E. COLLYER ELIOR DANIEL SHILOH REBECCA ANN GOLDSTEIN Lewis, Brisbois, Bisgaard & Smith LLP.

          For the Plaintiff: ADAM JON FISHBEIN Adam J. Fishbein, Attorney at Law.

          MEMORANDUM AND ORDER

          FREDERIC BLOCK Senior United States District Judge.

         Shifra Winehouse (“Winehouse” or “plaintiff”) brings this action for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., [1] on behalf of herself and all other similarly situated consumers, against GC Services Limited Partnership (“GC” or “defendant”). GC moves to dismiss the Complaint for lack of jurisdiction and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”) and Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), respectively. For the following reasons, GC's motion (“Motion” or “MTD”) is GRANTED IN PART and DENIED IN PART.

         I

         The Court takes as true all of the factual allegations of Winehouse's complaint and draws all inferences in Winehouse's favor. See Weixel v. Bd. of Educ., 287 F.3d 138, 145 (2d Cir. 2002). However, “the tenet that a court must accept as true all the allegations contained in the complaint is inapplicable to legal conclusions”; thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court also considers any “documents attached to the complaint as an exhibit or incorporated in it by reference, ” “matters of which judicial notice may be taken, or . . . documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993), abrogated in part, Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

         A.

         Winehouse is a fifty-seven year-old citizen of the state of New York and a resident of New York City's Kings County. Headquartered in Houston, Texas, and founded in 1957, GC is a Delaware corporation which qualifies as a “debt collector”[2] engaged in “commerce”[3] under the FDCPA. From local offices sprinkled throughout the United States, GC has long engaged in “debt”[4] collection activities on behalf of private and public entities. During these efforts, GC regularly reaches out to sundry “consumers”[5]with “communications”[6] via varied instrumentalities of interstate commerce.

         Winehouse's suit arises from an isolated communication. See Compl. ¶ 22. On or about June 16, 2015, Joy Gallop (“Gallop”), a representative of GC, left a message on Winehouse's answering machine consisting of the following sentences: “Shifra Winehouse, my name is Joy Gallop. I would appreciate you returning my call. You can reach me at 877-710-8001. Thank you.” Id. ¶ 23. Gallop did not divulge that she was working for GC or that she was calling to collect in regard to any type of debt. See Id. ¶¶ 24-25. Thus, “at the time [p]laintiff received the said message, she did not know the identity of the caller, ” that “the caller was a debt collector, ” and that “the call concerned the collection of a debt.” Id. ¶¶ 23-25. Notably, in the days and weeks after this call, neither Winehouse nor GC reached out to the other. See Id. ¶¶ 28, 31.

         II

         Winehouse alleges that Gallop's message violated §§ 1692d, 1692e(10), 1692e(11), and 1692f. Compl. ¶¶ 45, 50.[7] GC now makes two arguments for dismissal. First, it maintains that “one voice message” cannot suffice to provide Winehouse with constitutionally requisite standing under Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). Second, it contends that Winehouse has failed to plausibly allege the elements required to sustain a cause of action under the FDCPA referenced in the Complaint.

         A. Rule 12(b)(1): Lack of Standing

         1. Doctrine

         “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy, ” a constitutional prerequisite. Spokeo, 136 S.Ct. at 1547; U.S. Const. art. III. To show standing, a plaintiff must establish: “(1) an injury-in-fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted).[8] To allege an injury-in-fact, “a plaintiff must claim the invasion of a concrete and particularized legally protected interest resulting in harm that is actual or imminent, not conjectural or hypothetical.” Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016) (internal quotation marks omitted). “[A] bare procedural violation, divorced from any concrete harm, ” will not satisfy this standard. Spokeo, 136 S.Ct. at 1549. Nonetheless, “an alleged procedural violation can ...


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