United States District Court, S.D. New York
JOSHUA WONG, for himself and all others similarly situated, Plaintiff,
ALTERNATIVE CLAIMS MANAGEMENT, LLC, Defendant.
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
Wong (“Plaintiff” or “Wong”) brings a
class action against Alternative Claims Management LLC
(“ACM” or “Defendant”) alleging
violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”).
Before this Court is Defendant's motion to dismiss the
First Amended Complaint (“FAC”) in its entirety
pursuant to the Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim.
reasons set forth below, Defendant's motion is GRANTED in
part and DENIED in part.
25, 2016, Wong rented a 2016 Cadillac XTS (the
“Vehicle”) at Los Angeles International Airport
from Sixt Rent A Car, LLC (“Sixt”). FAC ¶ 8
& Ex. A. This rental was subject to a standard form car
rental agreement. Id. ¶ 9. On July 2, 2016 at
12:07 p.m., Wong returned the Vehicle, and examined it with a
Sixt attendant for any damage. Id. ¶¶
10-11. At that time, they determined that there was no new
damage to the vehicle, and Wong was not charged for any
damages. Id. ¶ 11. Later that day, Wong
received an automated email from Sixt, which confirmed the
Vehicle's return and attached a receipt indicating that
the total due was $497.56. Id. ¶¶ 12-13.
21, 2016, almost three weeks after Wong returned the Vehicle,
Sixt sent him an email stating, inter alia:
“After your drop off it has been noted/you have
informed us that the vehicle you rented had sustained a new
damage.” Id. ¶ 14. The next day, Sixt
emailed Wong a “Return Checksheet, ” purporting
to show the damage the Vehicle incurred while it was in his
possession. Id. ¶ 15. Specifically, it listed
six existing scratches or dents and eleven new scratches or
dents to the Vehicle. See FA C E x . A
(“Checksheet”). This Checksheet was dated July 2,
2016, but Wong alleges that he was not previously shown the
Checksheet and that the date is
“mistaken.” FA C ¶ 16.
asserts that Sixt initiated at least two additional
communications with him regarding the purported damage to the
Vehicle in July 2016 and again in October 2016, seeking to
collect money or obtain information to submit an insurance
claim, but does not further allege the exact content of those
communications. Id. ¶ 17. He claims that he
refused to cooperate with Sixt on the grounds that he was not
responsible for any damage to the Vehicle. Id.
Wong received a letter from ACM dated March 28, 2017
regarding damage to the Vehicle (“March Letter”).
Id. at ¶ 19. Wo n g avers that ACM is a
“debt collector” as defined in Section 1692a(6) o
f t h e F D C P A, and that ACM presented itself as such to
him. Id. ¶¶ 6, 21. In the March Letter,
ACM stated that it had been retained by Sixt to handle the
processing of a claim concerning damage to the Vehicle. March
Letter at 1. It further stated that according to its
information, the Vehicle was in Wong's possession on the
date of the loss. Id. ACM then asked Wong to pay the
total amount due or to report the claim to his insurance
company. Id. Specifically, ACM sought $3, 352 for
the car's repair, and $150 as an administrative fee.
Id. Attached to the March Letter was an estimate
from a repair shop which listed 32 line items of repair that
needed to be performed on the Vehicle. Id. at 2-4.
Notably, this estimate was dated March 10, 2017-eight months
after Wong had returned the Vehicle to Sixt. Id. at
2. The March Letter also included the following language:
Pursuant to 15 USC Section 1692g, be advised that Alternative
Claims Management is attempting to collect a debt and any
information obtained will be used for that purpose. Within
thirty (30) days after receipt of this notice you must
dispute the validity of this debt, or any portion thereof, or
this debt will be assumed to be valid by the debt collector.
Upon your written request within thirty (30) days after
receipt of this notice, we will furnish you with the name and
address of the original creditor, if different from the
“Creditor/ACM Client” listed above. If you notify
us, in writing, within thirty (30) days after receipt of this
notice that the above debt, or any portion thereof, is
disputed, we will obtain verification of the debt and a copy
of such verification will be mailed to you.
Id. at 1.
does not allege that he disputed the debt to ACM within
thirty days after he received the March Letter. Instead, he
disputes for the first time in the instant action that he is
responsible for the damage and notes that even Sixt's
Checksheet conflicts with the March Letter. Id.
¶ 22. For example, amongst the thousands of dollars of
damages ACM sought were hundreds of dollars for labor to
repair the rear bumper, but the Checksheet expressly noted
that no damage occurred to the rear bumper during Wong's
April 28, 2017, Plaintiff filed the Complaint against ACM and
Sixt, alleging that ACM violated the FDCPA and that both ACM
and Sixt violated the Florida Deceptive and Unfair Trade
Practices Act. Doc. 1. On July 20, 2017, Plaintiff
voluntarily dismissed Sixt from the instant action with
prejudice. Doc. 15. On July 31, 2017, Plaintiff filed the
FAC, alleging that Defendant violated Sections 1692e(2)(A),
1692e(10) and 1692f of the FDCPA. Doc. 17. On August 28,
2017, Defendant filed the instant motion to dismiss. Doc. 18.
Motion to Dismiss
Rule 12(b)(6), a complaint may be dismissed for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). When ruling on a
motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept all factual allegations in the complaint as true and
draw all reasonable inferences in the plaintiff's favor.
Koch v. Christie's Int'l PLC, 699 F.3d 141,
145 (2d Cir. 2012). However, the Court is not required to
credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its
face.'” Id. at 678 (quoting
Twombly, 550 U.S. at 570). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). If
the plaintiff has not “nudged [his] claims across the
line from conceivable to plausible, [the] complaint must be
dismissed.” Twombly, 550 U.S. at 570.