Kropelnicki v. Siegel
| Decision Date | 08 May 2002 |
| Docket Number | Docket No. 01-7233.,Docket No. 01-7025. |
| Citation | 290 F.3d 118 |
| Parties | Laura KROPELNICKI, Plaintiff-Appellant-Cross-Appellee, v. Hal SIEGEL, Linda Strumpf, Defendants-Appellees-Cross-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Joanne S. Faulkner, New Haven, CT, for Plaintiff-Appellant-Cross-Appellee.
Linda Strumpf, New Canaan, CT, for Defendants-Appellees-Cross-Appellants.
Before: KEARSE, MINER, and F.I. PARKER, Circuit Judges.
Plaintiff-appellant-cross-appellee Laura Kropelnicki appeals from a judgment entered in the United States District Court for the District of Connecticut (Dorsey, J.) dismissing her action to recover under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., the Connecticut Creditor Collection Practices Act ("CCCPA"), Conn. Gen.Stat. § 36a-645, and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.Stat. § 42-110a, and denying her motion to amend her complaint. Defendants-appellees-cross-appellants Linda Strumpf, Esq. and her husband Hal Siegel (together "defendants") cross-appeal the district court's denial of their motion for sanctions brought pursuant to Federal Rule of Civil Procedure 11.
This action is based on Kropelnicki's claims that defendants violated the aforementioned statutes by (1) proceeding to judgment against her in a state court debt collection action despite having represented to her attorney that they would not advance the litigation without first contacting him; (2) directly communicating with her with knowledge that she was represented by an attorney; and (3) sending a threatening letter following the entry of judgment in the state court action.
The district court dismissed the CCCPA and CUTPA claims, holding that Kropelnicki's failure to respond to defendants' motion to dismiss them constituted a waiver of those claims. The court also dismissed the FDCPA claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, holding that defendants' alleged misrepresentations to Kropelnicki's attorney did not constitute a violation of the FDCPA and that the defendants' post-judgment letter mailed to Kropelnicki's house did not constitute a violation of the FDCPA as to her because the letter was written to her daughter. In ruling on a motion to reconsider, the district court (1) adhered to its prior decision; (2) held that two of Kropelnicki's claims were barred by the FDCPA's one-year statute of limitations; and (3) denied Kropelnicki's motion to amend her complaint.
For the reasons that follow, we affirm the judgment of the district court in part and dismiss the appeal in part.
Defendant-appellee Linda Strumpf is an attorney-at-law with offices in New Canaan, Connecticut. Her husband, defendant-appellee Hal Siegel, serves as her office manager. In November 1998, Strumpf brought a debt collection action in the Superior Court for the State of Connecticut, Judicial District of New Haven, on behalf of American Express Travel Related Services Company, Inc., against Kropelnicki and her daughter, Mila Evanauskas. The plaintiff in that action sought to recover monetary damages of $8,189.71 plus 18% interest accrued since May 13, 1998, attorney's fees in the amount of $1,637.94, costs of the suit, and "other relief as may be appropriate." The damages sought represented the unpaid balance due on an American Express credit card that was issued to Evanauskas. Although not named on the card, Kropelnicki was a "supplemental cardholder" who was authorized to use it. On November 22, 1998, the action was commenced when Kropelnicki and Evanauskas were served with a summons and complaint with a return date of December 29, 1998.1
On December 3, 1998, Siegel received a telephone call from Christopher M. Licari, an attorney who represented Kropelnicki and Evanauskas. While both parties agree that Siegel and Licari discussed settlement possibilities, they disagree as to the remainder of the discussion. Defendants allege that, in accordance with office policy, Siegel advised Licari to send a letter stating that he represented Kropelnicki and Evanauskas and informed Licari that Siegel would await such correspondence before noting in the file that Kropelnicki and Evanauskas were represented by counsel. Defendants never received any correspondence from Licari.
In his sworn affidavit, Licari tells a different version of his conversation with Siegel. He claims that he told Siegel he had not yet filed an appearance in the case because he thought the case might be resolved without needing to appear, and that he asked Siegel not to file a motion for default without letting Licari know beforehand so that he would have the opportunity to speak with his clients. Licari further claims that he gave Siegel his telephone number, that he believed Siegel would not advance the litigation without notifying him, and that Siegel did not request written confirmation that Licari represented Kropelnicki and Evanauskas. No attorney filed a notice of appearance in the action and Kropelnicki did not file an answer or motion in response to the complaint.
Defendants also claim that prior to the state court judgment they mailed to Kropelnicki and Evanauskas on August 4, 1999, a copy of their motion for default for failure to appear, proposed judgment, and proposed order for weekly payments. Both Kropelnicki and Evanauskas deny that they ever received the moving papers. In any event, on August 11, 1999, a default judgment was entered against Kropelnicki and Evanauskas in the amount of $9,043.20. Defendants allege that they mailed Kropelnicki and Evanauskas a copy of the judgment on August 16, 1999. The latter claims that they did not receive this document either.
Kropelnicki claims instead that she first received notice of the advancement of the litigation in state court when she read a letter dated October 28, 1999, regarding a judgment that had been entered against Evanauskas. The letter was addressed only to Evanauskas but was mailed to her at Kropelnicki's address.2 The letter stated as follows:
Ms. Mila Evanauskas 37 Pearl Street New Haven CT 06511
Dear Ms. Evanauskas:
This is to inform you that a judgment has been entered against you and in favor of American Express Travel Related Services Company, Inc. in the sum of $9043.20 plus interest from 08/11/99.
The judgment entitles us to liquidate your assets (i.e., your car, bank accounts, stocks, etc.) and garnishee [sic] your wages. Please contact us immediately to arrange payment/payment plan. This is an attempt to collect this debt and any information will be used for that purpose.
Very truly yours, LINDA STRUMPF ATTORNEY-AT-LAW
In a motion dated December 10, 1999, Kropelnicki and Evanauskas requested that the state court open the default judgment, claiming that there was "[r]easonable cause" because "other than the writ, summons and complaint, which did not contain a return date, [they] received no notice of any of the proceedings in this matter" until Strumpf's October 28 letter. In opposition papers dated January 4, 2000, defendants objected to the opening of the judgment. They argued that Kropelnicki and Evanauskas failed to respond to the initial papers, which admittedly were received, and that the summons and complaint did include a return date of December 29, 1998 as shown on the original filed with the court and the copy attached to defendants' opposition papers. Defendants also argued that the motion to open should be denied because Kropelnicki and Evanauskas failed to meet the requirements for opening a judgment under Connecticut law.3
By letter dated March 17, 2000, Joanne S. Faulkner, Kropelnicki's attorney in the present action, informed defendants that they had violated the FDCPA because "[Strumpf's] letter of Oct. 28, 1999, was written to [Kropelnicki] at a time when [defendants] knew that she was represented by [an] attorney." The letter stated that it was written to "give [Strumpf] the opportunity to settle the FDCPA violations by paying $1,500 so I have it in hand by April 7, 2000, with an additional $25 per week if not timely paid." Strumpf replied in a letter dated April 4, 2000, that Faulkner's allegations were without merit and that if Faulkner proceeded with such claims, Strumpf would seek "all remedies permitted by law."
On June 14, 2000, Kropelnicki filed suit in the United States District Court for the District of Connecticut against the defendants claiming violations of the FDCPA, CCCPA, and CUTPA, and seeking compensatory and punitive damages, costs, reasonable attorney's fees, and equitable remedies. Kropelnicki's complaint sets forth only the bare minimum required under the notice pleading standard applicable in federal courts. The complaint first sets out the statutory provisions Kropelnicki claims that the defendants violated. As to the factual bases for her claims, she alleges only the following: (1) "[d]efendants directly or indirectly communicated with [the] plaintiff or others on or after June 14, 1999, in connection with collection efforts with regard to [Kropelnicki's] alleged personal debt to American Express Travel Related Services Company, Inc."; (2) "[i]n the collection efforts, each defendant violated the FDCPA, inter alia, § 1692c, -d, -e, or -f"; (3) "[o]n or after June 14, 1997, each Defendant has engaged in acts and practices as to plaintiff in violation of the [CCCPA]"; and (4) "[e]ach Defendant has committed unfair or deceptive acts or practices within the meaning of the [CUTPA]."
On August 15, 2000, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). The defendants...
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