United States District Court, S.D. New York
B. Geller, Esq. Edward B. Geller, Esq., P.C. Counsel for
Michael T. Etmund, Esq. Moss & Barnett Matthew B.
Spergel, Esq. Scott A. Schechter, Esq. Kaufman Borgeest &
Ryan, LLP Patrick Stoltz, Esq. Landman Corsi Ballaine &
Ford PC Counsel for Defendant
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISIRICT JUDGE.
Felix Feldheim (“Plaintiff”) brings this putative
class action against Financial Recovery Services, Inc.
(“FRS” or “Defendant”), alleging
violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq.
(See Am. Compl. (Dkt. No. 17).) Before the Court is
Defendant's Motion To Dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) (the
“Motion”). (See Dkt. No. 26.) For the
reasons to follow, Defendant's Motion is granted.
following facts are taken from Plaintiff's Amended
Complaint and are assumed true for the purpose of resolving
the instant Motion.
alleges that Defendant, “on behalf of a third-party or
itself . . . began efforts to collect an alleged consumer
debt from Plaintiff.” (Am. Compl. ¶ 22.) “On
or about January 26[, ] 2016[, ] Plaintiff received a
mass-produced notice from Defendant . . . [bearing] a heading
stating: “Tax Season Settlement Reduction Offer.”
(Id. ¶¶ 24-25.) The notice alerted
Plaintiff that “the current creditor was Discover
Bank” and that Plaintiff owed $4, 414.61. (Id.
¶ 27.) The notice also provided three reduction options
to Plaintiff: (1) “a reduction of 75% for a lump sum
payment of $1[, ]003[.]65”; (2) “a reduction of
68.50[%] for a [two] time payment of $1, 434[.]74”; and
(3) “a reduction of 60% for a three time payment of $1,
765.83.” (Id. ¶ 28.) Finally, the notice
stated that “[a]s of the date of this notice[, ] you
owe [$]4, 414.61 . . . .” (Id. ¶ 29
(internal quotation marks omitted).) Plaintiff avers that
this language “implie[d] that the balance w[ould]
change on a daily bas[i]s and interest [wa]s being
result of Defendant's alleged violations of the FDCPA,
Plaintiff seeks actual damages, statutory damages,
attorney's fees and costs, and “a declaration that
. . . Defendant's practices violated the FDCPA.”
(Id. at unnumbered 7.)
filed the initial Complaint in this Action on May 24, 2016.
(See Dkt. No. 1.) At a conference before the Court
on September 13, 2016, Plaintiff was granted leave to file an
Amended Complaint by no later than October 13, 2016.
(See Dkt. (minute entry for Sept. 13, 2016).)
Plaintiff failed to file an Amended Complaint within the time
permitted and accordingly, on October 19, 2016, the Court
issued an Order To Show Cause, ordering Plaintiff to show
cause why the Action should not be dismissed for failure to
prosecute. (See Dkt. No. 14.) In a letter filed the
following day, counsel for Plaintiff notified the Court that
he “did not file an Amended Complaint”-despite
the Court's directive-“because [he] was waiting to
first hear from Defendant regarding [a settlement]
demand.” (See Dkt. No. 15.) The Court granted
Plaintiff an extension of time to file an Amended Complaint,
(see Dkt. No. 16), and Plaintiff filed the Amended
Complaint on October 27, 2016, (see Dkt. No. 17).
to a Scheduling Order dated December 13, 2016, (see
Dkt. No. 25), Defendant filed the instant Motion To Dismiss
and accompanying memorandum of law on January 17, 2017,
(see Dkt. Nos. 26-27). On February 22, 2017, two
days before Plaintiff's opposition was due,
Plaintiff's counsel requested an extension, (see
Dkt. No. 28), which the Court granted the following day,
(see Dkt. No. 29). On April 14, 2017, Defendant
filed a letter informing the Court that while “[t]here
was no [m]emorandum in [o]pposition filed electronically by
Plaintiff . . ., a copy was e-mailed to [Defendant's
counsel's] office on March 24, 2017.” (See
Dkt. No. 30.) The letter also informed the Court that
Defendant did not intend to file papers in reply. (See
id.) Without explanation for Plaintiff's failure to
timely file his opposition with the Court, Plaintiff filed
his opposition on April 17, 2014. (See Dkt. No. 31.)
Standard of Review
moves to dismiss Plaintiff's Amended Complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(See Def.'s Mem. of Law in Supp. of Mot. for
Dismissal Pursuant to Fed.R.Civ.P. ...