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Peragine v. William C. Grossman Law, PLLC

United States District Court, E.D. New York

December 30, 2019

MICHELLE PERAGINE, an individual; on behalf Of herself and all others similarly situated, Plaintiff,
v.
WILLIAM C. GROSSMAN LAW, PLLC, a New York professional limited liability company, Defendant.

          MEMORANDUM AND ORDER

          ANNE Y. SHIELDS UNITED STATES MAGISTRATE JUDGE

         On October 9, 2017, Plaintiff Michelle Peragine (“Plaintiff”) commenced this action, on behalf of herself and others similarly situated, pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 15 U.S.C. § 1692, et seq., (the “FDCPA”). The original complaint named a single defendant - William C. Grossman Law, PLLC. Docket Entry herein (“DE”) [1]. On March 30, 2018, Plaintiff filed her First Amended Complaint. Like the original complaint, the amended pleading alleged only claims under the FDCPA, and named only William C. Grossman Law, PLLC, as a defendant. On September 26, 2018, after being granted leave, Plaintiff filed her Second Amended Complaint. Unlike her earlier complaints (and as discussed further below, outside of the leave granted by this Court), the Second Amended Complaint names three additional Defendants and alleges, for the first time, a claim under New York State law.

         Presently before the Court is the motion of the three defendants first named in the Second Amended Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss. The motion argues that the operative date of the Second Amended Complaint should not relate back to the filing of her first complaint, and that therefore the FDCPA claims alleged are time-barred. In the event that the FDCPA claims are dismissed, the movants ask that this Court decline to exercise supplemental jurisdiction over the newly-pleaded state law claim. For the reasons set forth below, the motion to dismiss is granted in its entirety.[1]

         BACKGROUND

         I. The Complaint

         As noted, Plaintiff filed the complaint herein on October 9, 2017 (the “First Complaint”). The First Complaint named a single defendant -William C. Grossman Law, PLLC (“Grossman PLLC” or the “Grossman Law Firm”). In that pleading, styled as a class action, Plaintiff alleged a single cause of action. Specifically, Plaintiff alleged that the Grossman Law Firm violated the FDCPA in connection with commencement of a debt collection lawsuit in New York State Court (the “State Court Action”). Plaintiff alleged that the summons served in the State Court Action (the “Summons”) was nothing more than a “computer-generated, mass-produced, document that is sent to consumers at-large in the State of New York without any meaningful attorney review or involvement.” DE [1] at ¶ 31. The gist of Plaintiff's FDCPA claim is that the commencement of the State Court Action was deceptive because the Summons falsely represents that it is a communication from an attorney. It is further alleged that, in fact, no attorney was involved in review of the State Court Action (and others allegedly similar thereto) prior to commencement. It is also alleged that the Summons violated the FDCPA by commencement of an action in a judicial district where the consumer neither signed the contract nor in which the consumer resides, in violation of 15 U.S.C. § 1692i (2).

         The Summons was signed by Grossman PLLC, as attorneys for LVNV Funding LLC (“LVNV”), the plaintiff in the State Court Action. The handwritten signature for Grossman PLLC is illegible. See DE [1] at Ex. A. However, the printed names listed under the signature line, as attorneys for LVNV, are William C. Grossman, Esq. and Darleen V. Karaszewski, Esq.

         II. The First Amended Complaint

         On March 30, 2018, Plaintiff filed her First Amended Complaint (the “FAC”). DE [13]. Like the First Complaint, the FAC named a single defendant - Grossman PLLC. The FAC contains additional facts concerning the debt that was the subject of the State Court Action. Specifically, the FAC states that Credit One Bank, N.A., the holder of Plaintiff's alleged original debt, transferred the debt to MHC Receivables, LLC, and FNBM, LLC, and then to Sherman Originator III, LLC, to Sherman Originator LLC and, finally to LVNV - the Plaintiff on whose behalf the Grossman Law Firm commenced the State Court Action. In addition to more fully describing the path of the debt sought to be collected in the State Court Action, the FAC adds as an exhibit the complaint accompanying the Summons, which describes the debt's chain of title as set forth above. See DE [13] at Ex. B. The FAC also attaches a “schedule” that was annexed to the complaint in the State Court Action, and referred to in Paragraph 5 therein. That schedule purports to be Plaintiff's credit card statement, reflecting the amount due to the original creditor - the debt upon which the State Court Action was based. DE [13] at 21.

         The FAC also includes as an exhibit a document reflecting the assignment of a telephone number, first to Attorney Kevin Z. Shine (a debt collector for LVNV) and then to William C. Grossman. DE [13] at ¶ 38. The FAC states, upon information and belief, that LVNV “electronically transmits basic account information to Grossman, and that such information is reviewed by Non Attorneys.” Id. at ¶¶ 38-39. It is further alleged that the electronic information transferred by LVNV is imported into a “form Complaint” which is reviewed by non-attorneys, and then into a computer-generated complaint. Id. at ¶ 40. As to the illegible signature referred to above, it is alleged that Defendant refuses to identify the person who signed on behalf of the Defendant law firm. Id. at ¶ 43.

         Similar to the First Complaint, the FAC alleges a single cause of action pursuant to the FDCPA based upon the general allegation that there was no meaningful attorney review prior to commencement of the State Court Action. See id. at ¶¶ 45-50, and at Section VII. Like the original pleading, Plaintiff alleges that commencement of the State Court Action was a false and deceptive practice in violation of the FDCPA. While the FAC adds facts describing the chain of custody of the debt underlying the State Court Action, and Defendant's allegedly deceptive scheme, it is in all material aspects, the same as the First Complaint. Both are styled as class actions, both name only a single defendant (the Grossman Law Firm), and both allege only a cause of action pursuant to the FDCPA.

         III. Proceedings After the First Amended Complaint

         Approximately two weeks after the filing of the FAC, the District Court held a telephone conference. That Court directed that all discovery be completed within ninety days, and gave Defendants leave to file a pre-motion conference letter upon completion thereof. DE [14]. Thus, discovery was to be complete by July 12, 2018. Counsel thereafter engaged in motion practice before this Court seeking to compel responses to discovery, and to extend the deadline for completion thereof. By way of electronic order dated July 18, 2018, this Court granted the motion to extend discovery, and granted in part and denied in part the motion to compel. All discovery was to be completed by August 22, 2018, dispositive motion practice was to be commenced by August 31, 2018, and the joint proposed pretrial order was to be filed by September 13, 2018. See Electronic Order dated July 18, 2018.

         On August 8, 2018, this Court held a conference. At that conference, the deadline for completion of discovery was extended to October 9, 2018. The date for taking the first step in dispositive motion practice was extended to October 24, 2018, and the joint proposed pretrial order was to be filed on November 8, 2018. Additionally, the Court noted counsels' agreement that the deposition of William Grossman was to occur on a date to be determined between September 17, 2018 and September 29, 2018. DE [26].

         IV. Proceedings as to the ...


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