Demarattes v. Enhanced Recovery Co.

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MELINDA DEMARATTES, Plaintiff, v. ENHANCED RECOVERY COMPANY, LLC, .

No. 20-CV-4722(KAM)(LB)

United States District Court, E.D. New York

September 9, 2022

MEMORANDUM AND ORDER

HON KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE

Plaintiff Melinda Desmarattes (“Plaintiff”), proceeding pro se, commenced the instant action against Defendant Enhanced Recovery Company, LLC (“Defendant” or “ERC”), alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227 et seq., and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. (See ECF No. 1 (“Compl.”) at 3-4.) Currently before the Court is Defendant's motion to dismiss Plaintiff's Second Amended Complaint (“SAC”) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (See ECF No. 22, Defendant's Notice of Motion to Dismiss.) For the reasons stated below, Defendant's motion is granted.

BACKGROUND

For the purpose of deciding Defendant's Rule 12(b)(6) motion, the Court accepts as true the factual allegations in the SAC and exhibits attached thereto,^[1] (see ECF No. 19, SAC), and draws all inferences in Plaintiff's favor. See Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015). Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99 107 (2d Cir. 1999) (internal quotation marks and citation omitted). “When a plaintiff proceeds pro se however, the Court may consider materials outside the complaint to the extent that they are consistent with the allegations in the complaint, Scott-Monck v. Matrix Absence Mgmt., Inc., No. 19-cv-11798(NSR), 2022 WL 2908007, at *4 (S.D.N.Y. July 22, 2022) (quoting Gayot v Perez, No. 16-cv-8871(KMK), 2018 WL 6725331, at *4 (S.D.N.Y. Dec. 21, 2018)), including “factual allegations made by a pro se party in his papers opposing the motion [to dismiss].” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013).

I. Factual Background

Plaintiff alleges that she is a “consumer” as defined by the FCRA, (see SAC at 3 (citing 15 U.S.C. § 168a(c)), and that Defendant ERC “acts as a debt collector, as defined by § 1692a of the FDCPA because it regularly uses the mails and/or the telephone to collect, or attempt to collect, defaulted consumer debts that it did not originate.” (Id.) Plaintiff also alleges that in January 2020, ERC purchased the collection rights to the outstanding debt associated with the AT&T Mobility, LLC account at issue, which has been closed since March 2015. (Id.)

In addition, Plaintiff alleges that ERC “falsely reported incorrect debt information to national credit reporting agencies including but not limited to, incorrect debt amount, account status and status update.” (Id.) Plaintiff notes that the “debt amount of $2,465 . . . is incorrect,” but does not provide any facts explaining her view of the correct amount. (Id.) The Experian Credit Report, filed as Exhibit A to the SAC, indicates that as of August 23, 2020, the collection account, which was opened on January 14, 2020, had a past-due balance of $2,390. (See ECF No. 19-2, Exhibit A to the SAC, at 1.) The Report also notes the payment status of the account as “[s]eriously past due/assigned to attorney, collection agency, or credit grantor[']s internal collection department.” (Id.)

Plaintiff alleges that ERC violated the FDCPA by: (1) falsely representing “the true amount of the debt,” in violation of 15 U.S.C. § 1692e(2)(A); (2) engaging in “collection activity to harass, oppress, or abuse Plaintiff,” in violation of Section 1692d; (3) failing to disclose to Plaintiff that the communication is from a debt collector, in violation of Section 1692e(11); and (4) failing to inform Plaintiff during collection calls made to her cell phone “that making a payment would re[-]age the debt which would make the contract invalid,” in violation of Section 1692e(10). (SAC at 4; Pl. Opp. at 2-3.) See 15 U.S.C. § 1692e(10) (“[T]he following conduct is a violation of this section: [t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.”).

Plaintiff also alleges that ERC placed “over 200 calls” to her cell phone “in an effort to collect the alleged debt,” and that ERC's “excessive calls affected Plaintiff's ability to use [her] phone, work and caused emotional and physical distress.” (SAC at 4.) Plaintiff states that she “suffered documented physical and emotional ailments due to the stress” caused by the “excessive” collection calls from ERC, and submitted, as Exhibit D to the SAC, the June 9, 2020 patient progress notes from Dr. Charlotte Noorollah, M.D., which noted Plaintiff's “gradual and continuous” hair loss over the course of six years. (ECF No. 19-2, Exhibit D to the SAC, at 4.)

Finally, Plaintiff alleges that due to ERC's “conduct, actions and/or inactions, [she] suffered damage by loss of credit, loss of ability to purchase and benefit from credit, increased interest rate, los[s] of mortgage loans, the mental and emotional pain, anxiety, anguish, humiliation and embarrassment of credit denials,” and that she was “denied two loans.” (SAC at 4.)

Plaintiff makes additional factual allegations in her opposition to ERC's motion to dismiss, stating that ERC sent Plaintiff a dunning letter in or about 2015 attempting to collect $2,465, a debt Plaintiff alleges was “incurred for personal, family, or household purposes.” (Pl. Opp. at 1-2.) Plaintiff also alleges that ERC further attempted to collect the debt by reporting the debt to credit reporting agencies and “causing consumer reporting agencies to publish the alleged debt in consumer reports concerning Plaintiff.” (Id. at 2.) According to Plaintiff, she is not indebted to non-party AT&T Mobility, LLC, or ERC, and has not promised, consented, or entered into a contract promising to pay them $2,465. (Id.)

II. Procedural History

Plaintiff commenced the instant action on September 29, 2020. (See Compl.) Plaintiff moved to proceed in forma pauperis, and the Court granted Plaintiff's motion on November 17, 2020.

(See ECF No. 6, Order dated November 17, 2020.) On April 27, 2021, Defendant filed a motion for a pre-motion conference in anticipation of its motion to dismiss, (see ECF No. 9, Defendant's Motion for a Pre-Motion Conference), and the Court ordered Plaintiff to file a response. (See Orders dated April 27, 2021, May 3, 2021, and May 18, 2021.)

On May 21, 2021, Plaintiff, rather than complying with the Court's Orders to file her response to Defendant's motion for a pre-motion conference, filed an amended complaint. (See ECF No. 11, Amended Complaint.) On May 26, 2021, the Court issued an Order advising the parties that the Court would “decide whether [P]laintiff can amend the complaint at the pre-motion conference scheduled for” June 2, 2022. (See Order dated May 26, 2021.) In that same Order, the Court directed Plaintiff to file her response to Defendant's motion for a pre-motion conference. (Id.) Plaintiff filed her response on May 28, 2021. (See ECF No. 13, Plaintiff's Response to Defendant's Motion for a Pre-Motion Conference.)

During the pre-motion conference, held on June 2, 2021, the Court advised the parties to engage in settlement discussions, and referred the parties to a settlement conference before Magistrate Judge Lois Bloom. (See Minute Entry dated June 2, 2021.) At the conference, the Court also directed Plaintiff to file a second amended complaint and Defendant to answer or file a motion for a pre-motion conference, should the settlement discussions prove unsuccessful. (Id.) A settlement conference was held before Judge Bloom on June 16, 2021, but the parties were unable to reach a resolution. (See Order dated June 16, 2022.) Plaintiff filed a second amended complaint on July 21, 2021, (see ECF No. 19), and Defendant has moved to dismiss the SAC, and Defendant's motion to dismiss was fully briefed on December 10, 2021. (See ECF Nos. 22, Defendant's Notice of Motion; 23, Defendant's Memorandum of Law in Support of its Motion to Dismiss; 24, Plaintiff's Opposition to Defendant's Motion to Dismiss; 25, Defendant's Reply Memorandum of Law in Further Support of its Motion to Dismiss.)

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility 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. Although “detailed factual allegations” are not required, “[a] pleading that offers labels or conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotation marks and citation omitted).

“A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, such treatment “does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks and...