Sali v. Zwanger & Pesiri Radiology Grp.

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NILGUN SALI, individually and on behalf of all others similarly situated, Plaintiff, v. ZWANGER & PESIRI RADIOLOGY GROUP, LLP; VANVORST LAW FIRM, PLLC; and JOHN DOES, 1-50, Defendants.

No. 19 CV 275 (FB) (CLP)

United States District Court, E.D. New York

January 10, 2022

REPORT AND RECOMMENDATION

CHERYL L. POLLAK CHIEF UNITED STATES MAGISTRATE JUDGE

On January 15, 2019, plaintiff Nilgun Sali commenced this action, individually and on behalf of all others similarly situated, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., against defendants Zwanger & Pesiri Radiology Group, LLC (“Zwanger”), VanVorst Law Firm PLLC (“VanVorst”), and John Does 1-50 (collectively, “defendants”). (See Compl.^[1] ¶¶ 1-2).

Before this Court is plaintiff's motion for class certification (ECF No. 55), and defendants' cross motions to bifurcate discovery or, in the alternative, stay discovery and hold plaintiff's motion for class certification in abeyance. (See ECF Nos. 52, 53). Also before this Court is defendant VanVorst's motion to quash three third-party subpoenas. (See Quash Mot.^[2]).

For the reasons set forth below, this Court respectfully recommends that plaintiff's motion for class certification be denied without prejudice to refile pending resolution of defendants' forthcoming motions for summary judgment and defendants' motion to stay discovery generally be granted. In the alternative, the Court recommends that plaintiff's motion for class certification be denied and the case Ordered to proceed. As to the third-party subpoenas this Court denies VanVorst's motion to quash and Orders the third-parties subject to plaintiff's subpoenas to comply with the subpoenas and produce the requested records by January 31, 2022. Plaintiff is also Ordered to provide any documents already produced pursuant to the subpoenas to defendants by January 17, 2022.

FACTUAL BACKGROUND

Plaintiff alleges that defendants engaged in “unfair and deceptive acts and practices” in violation of the FDCPA by sending “consumer letters . . . that falsely state that a third-party law firm is engaged in the collection of debts owed, or allegedly owed” to defendant Zwanger. (Compl. ¶ 52). Specifically, according to plaintiff, a Collection Letter (“Letter”) sent by defendant VanVorst “fails to identify the debt's current creditor [as required by the FDCPA and] is an attempt by Zwanger to collect a debt from [plaintiff] through the guise of an allegedly independent law firm.” (Pl.'s Mem.^[3] at 3).

Plaintiff Sali is a natural person who is a citizen of, and resides in the Hamlet of East Meadow, Nassau County, New York. (Compl. ¶ 9). Defendant Zwanger is a limited liability partnership organized under New York law that maintains its principal business address at 150 East Sunrise Highway, Village of Lindenhurst, Suffolk County, New York. (Id. ¶¶ 11-12). Defendant VanVorst is a professional limited liability company organized under New York law, with its principal business address at 150 East Sunrise Highway, Village of Lindenhurst, Suffolk County, New York, “inside of [Zwanger's] business.”^[4] (Id. ¶¶ 13-14). Defendants John Does 1-50 are individuals who “personally created, instituted and, with knowledge that such practices were contrary to law, acted consistent with and oversaw the violative policies and procedures used by the employees of [defendants].” (Id. ¶ 16).

Defendant Zwanger provides radiology services on Long Island and the debt in question arises from “medical services” that Zwanger provided to plaintiff. (Id. ¶¶ 19-20). Plaintiff alleges that at “[s]ometime prior to December 17, 2018, Zwanger attempted to collect the debt from plaintiff” by sending plaintiff the Letter. (Id. ¶ 20). The top of the Letter lists “VanVorst Law Firm PLLC, ” with the address “150 E. Sunrise Hwy. Suite 2B, Lindenhurst, New York, 11757, ” and is signed by “VanVorst Law Firm.” (Id. ¶¶ 26, 28). Additionally, the Letter sets forth the amount owed “according to our client's records” and notes that the Letter is “Re: Zwanger-Pesiri Radiology Group, LLP.” (Id. ¶¶ 27, 49). The Letter also states that “[t]his account has been referred to this office for collection” and includes the last 3 digits of the account number, but plaintiff alleges that “Zwanger did not refer plaintiff's account to VanVorst for collection.” (Id. ¶¶ 27, 29, 49).

Instead, according to plaintiff, “VanVorst only operates under the exclusive control of Zwanger.” (Id. ¶ 31). Thus, any “payment mailed to VanVorst . . . is received and processed only by Zwanger employees.” (Id. ¶ 35). Plaintiff alleges that, as a result, the Letter is “materially false, deceptive, and misleading to the least sophisticated consumer” because it “falsely suggests it is from a law firm, ” “fails to identify the name of the creditor to whom the debt is owed, ” and deprives plaintiff “of truthful, non-misleading, information in connection with Zwanger's attempt to collect a debt.” (Id. ¶¶ 44, 46, 50-51).

Defendants dispute these allegations, contend that they operate separately, and argue that Zwanger maintains no control over VanVorst. (See Zwanger Mot. to Dismiss^[5] at 11-12; VanVorst Mot. to Dismiss^[6] at 8-9). Zwanger therefore argues that it is “not a debt collector” under the FDCPA because, as a creditor, it simply hired VanVorst to collect the debt it was owed. (Zwanger Mot. to Dismiss at 2, 5). Further, defendants assert that the Letter was not misleading because it does not falsely suggest it is from the independent law firm of VanVorst; the Letter did in fact come from VanVorst. (VanVorst Mot. to Dismiss at 14; Zwanger Mot. to Dismiss at 22). Defendants also dispute that the Letter does not identify Zwanger as the creditor, noting that the Letter “includes [Zwanger's] name and contains multiple references that indicate [Zwanger] is the creditor.” (Zwanger Mot. to Dismiss at 20; see VanVorst Mot. to Dismiss at 12).

PROCEDURAL BACKGROUND

Plaintiff brought these claims on behalf of a class of “all individuals with addresses in the State of New York . . . to whom Defendants . . . sent a collection letter . . . on or after a date one year prior to . . . and on or before a date 21 days after” the filing of the Complaint. (Compl. ¶ 56). According to plaintiff, the identities of these class members are “readily ascertainable” from defendants' records. (Id. ¶ 57). On September 13, 2020, both defendants filed motions to dismiss the action (see VanVorst Mot. to Dismiss; Zwanger Mot. to Dismiss), which the Honorable Frederic Block denied on November 20, 2020. See Sali v. Zwanger & Pesiri Radiology Grp. LLP, No. 19 CV 275, 2020 WL 6826272, at *2 (E.D.N.Y. Nov. 20, 2020).^[7]

On December 18, 2020, this Court held a status conference at which the Court gave defendants a deadline to Answer, set a discovery schedule, and stated that the parties were to submit a letter regarding bifurcation. (See Electronic Minute Entry, dated Dec. 21, 2020). On March 11, 2021, plaintiff filed a motion for a pre-motion conference to discuss plaintiff's proposed class certification motion. (See ECF No. 44). On March 17 and 18, 2021, both defendants filed motions in opposition to the request for a pre-motion conference and requested bifurcation of discovery. (See ECF Nos. 47-48). Plaintiff thereafter replied, stating that bifurcation was unnecessary because plaintiff's “class discovery is complete.” (ECF No. 49). On March 22, 2021, this Court denied plaintiff's motion for a pre-motion conference, and set a briefing schedule for the class certification motion. (See Electronic Minute Entry, dated Mar. 22, 2021).

On May 3, 2021, defendants filed their oppositions to plaintiff's motion for class certification and filed separate cross-motions to bifurcate, or, in the alternative, stay class action discovery and hold plaintiff's motion for class certification in abeyance. (See ECF Nos. 52, 53). On May 3, 2021, the Honorable Frederic Block referred defendants' motions to this Court. (See Electronic Order, dated May 3, 2021). On May 10, 2021, plaintiff filed a motion for class certification. (See ECF No. 55).^[8] That motion was then referred to the undersigned on May 11, 2021. (See Electronic Order, dated May 11, 2021).

On May 11, 2021, defendant Zwanger filled a letter seeking leave to file a reply in support of its motion to bifurcate discovery, which this Court denied on May 13, 2021. (See ECF No. 59). Also, on May 11, 2021, plaintiff sought leave to file a reply in support of the motion for class certification and in opposition to defendant VanVorst's cross-motion to bifurcate discovery, because VanVorst's motion, as a result of a clerical error, was filed ex parte.^[9] (See ECF No. 60). On May 27, 2021, pursuant to an Order from this Court, plaintiff filed her reply as to VanVorst's motion. (See Pl.'s Reply VanVorst;^[10] Electronic Order, dated May 13, 2021). Plaintiff had already filed her reply as to defendant Zwanger's motion on May 10, 2021. (See Pl.'s Reply Zwanger^[11]).^[12] On September 17, 2021, defendant VanVorst filed a motion to quash three third-party subpoenas. (See Quash Mot.). VanVorst argues that the three subpoenas, served on Martin Mack, VanVorst's tax preparer, Apple Bank for Savings, VanVorst's bank, and 150 E. Sunrise LLC, the building where VanVorst rents office space, seek information that is irrelevant, confidential, and disproportionate to the needs of this case. (Id. at 1-2). Plaintiff opposed the motion on October 5, 2021 and defendant filed a reply in support on October 12, 2021. (Quash Opp.;^[13] Quash Reply^[14]).

DISCUSSION

Defendants oppose plaintiff's motion to certify a class in this matter and seek to bifurcate discovery or, in the alternative, hold plaintiff's motion for class...