United States District Court, E.D. New York
SHIFRA WINEHOUSE, on behalf of herself and all other similarly situated consumers, Plaintiff,
GC SERVICES LIMITED PARTNERSHIP, Defendant.
the Defendant: WILLIAM S. HELFAND Lewis, Brisbois, Bisgaard
& Smith LLP., ADAM E. COLLYER ELIOR DANIEL SHILOH REBECCA
ANN GOLDSTEIN Lewis, Brisbois, Bisgaard & Smith LLP.
the Plaintiff: ADAM JON FISHBEIN Adam J. Fishbein, Attorney
MEMORANDUM AND ORDER
FREDERIC BLOCK Senior United States District Judge.
Winehouse (“Winehouse” or
“plaintiff”) brings this action for violation of
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq.,  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.
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
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” engaged in
“commerce” under the FDCPA. From local offices
sprinkled throughout the United States, GC has long engaged
in “debt” collection activities on behalf of private
and public entities. During these efforts, GC regularly
reaches out to sundry “consumers”with
“communications” via varied instrumentalities of
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.
alleges that Gallop's message violated §§
1692d, 1692e(10), 1692e(11), and 1692f. Compl. ¶¶
45, 50. 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.
Rule 12(b)(1): Lack of 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). 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 ...