Goins v. Jbc & Associates, P.C.

Decision Date14 January 2005
Docket NumberNo. 3:03CV636JBA.,3:03CV636JBA.
Citation352 F.Supp.2d 262
CourtU.S. District Court — District of Connecticut
PartiesEveline GOINS v. JBC & ASSOCIATES, P.C., Jack H. Boyajian, Marvin Brandon.

Joanne S. Faulkner, Law Offices of Joanne Faulkner, New Haven, CT, for Plaintiff.

Jonathan D. Elliot, Sabato Pellegrino Fiano, Kleban & Samor, PC, Southport, CT, for Defendants.

Ruling on Plaintiff's Motion for Partial Summary Judgment

ARTERTON, District Judge.

Plaintiff moves for partial summary judgment on liability for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692e and § 1692f. For the reasons discussed below, plaintiff's motion is granted in part.

I. Background1

Plaintiff Eveline Goins ("Goins") is a consumer within the meaning of the FDCPA, who allegedly owes a debt that is the subject of collection efforts. See 15 U.S.C. § 1692a(3). Defendant JBC & Associates, P.C. ("JBC") is a law firm located in New Jersey, owned by defendant Jack H. Boyajian, an attorney licensed to practice in California, and employing defendant Marvan Brandon, an attorney licensed to practice in New Jersey. Boyajian describes his occupation as "an attorney at law that provides services to clients who have debts that are with consumers that I am engaged in recovering for." Deposition of Jack H. Boyjian, Jan. 27, 2004 [Doc. # 38] at 25:7-9. Although defendants are not licensed as a consumer collection agency in Connecticut, they have sent letters to Connecticut residents, identifying themselves as attorneys at law, seeking collection of debts.

In September 1997, JBC received a claim by Wilson Suede & Leather for two returned checks written by plaintiff in the amounts of $243.79 and $158.99. Goins filed suit against defendants under the FDCPA in June 2002 challenging their collection activity related to the debt allegedly owed to Wilson Suede & Leather. See Goins v. JBC & Associates, P.C., et al., Civ. No. 3:02cv1069 (MRK). Goins commenced a second FDCPA action against Brandon in August 2002, which also was related to the collection of the Wilson Suede & Leather debt. See Goins v. Brandon, Civ. No. 3:02cv1537 (AVC). In April 2002, plaintiff filed for bankruptcy, defendants were made aware of the bankruptcy filing, and JBC put a hold on further communications with Goins. See Declaration of Jack H. Boyajian [Doc. # 49] at ¶ 5.

Despite the hold on her account, on February 17, 2003, JBC sent Goins another letter demanding payment of the debt allegedly owed to Wilson Suede & Leather. The text of the February 17, 2003 letter that JBC sent to Goins states:

                  Re:                 Wilson Suede & Leather
                  File #:             562183
                  Driver's License:   212895428
                  Balance:            $10277.56
                

Dear Eveline J Goins:

You have obviously chosen to ignore our previous communication demanding that you make restitution on an NSF check(s) written to our above-referenced client(s). Our client(s) may now assume that you delivered the check(s) with intent to defraud, and may proceed with the allowable remedies.

Since you have not tendered payment for the full amount of the check(s) and service charge(s) within the 30 days provided, pursuant to Connecticut General Statutes Section 52-565a, you may be subject to statutory penalties as determined by the court, but in no event shall be greater than the face value of the check or $400.00, whichever is less, for a total amount of $10277.56.

You may wish to settle this matter before we seek appropriate relief before a court of proper jurisdiction by a qualified attorney by contacting Lori Brown at 800-241-1510. If you qualify, you may also be able to use your American Express, Discover, Mastercard or Visa credit card to meet this obligation.

Very truly yours,

JBC & Associates, P.C.

Attorneys at law

This is an attempt to collect a debt by a debt collector. Any information will be used for that purpose.

II. Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In moving for summary judgment against a party who will bear the burden of proof at trial, the movant's burden of establishing that there is no genuine issue of material fact in dispute will be satisfied if he or she can point to an absence of evidence to support an essential element of the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("The moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."). In order to defeat summary judgment, the non-moving party must come forward with evidence that would be sufficient to support a jury verdict in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.").

When deciding a motion for summary judgment, "`the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). However, "[w]hen a motion for summary judgment is made and supported as provided in [the Federal Rules], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading." Fed.R.Civ.P. 56(e). Instead, the party opposing summary judgment must set forth the specific facts in affidavit or other permissible evidentiary form that demonstrate a genuine issue for trial. See id.

III. Discussion

Plaintiff argues that the February 17, 2003 collection letter sent by defendants to plaintiff violates the FDCPA because (1) defendants were not licensed to collect as required by Connecticut law; (2) defendants knew plaintiff was represented by counsel; (3) the letter demanded considerably more than any possible amount of the alleged debt; and (4) the letter threatened to sue on a time-barred debt.

In opposing plaintiff's summary judgment motion, defendants make three arguments. First, they argue that this FDCPA suit, the third that Goins has brought against them, violates the rule against splitting causes of action, because they all arise from the same collection effort that JBC undertook. Second, they assert that the February 17, 2003 letter resulted from "a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error," 15 U.S.C. § 1692k(c). Finally, they claim that Brandon and Boyajian were not debt collectors in the transaction at issue in this case.

A. Duplicative Litigation

It is well-established that "a district court may stay or dismiss a suit that is duplicative of another federal court suit" in the exercise of its discretion, "as part of its general power to administer its docket." Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir.2000). The determination of whether a suit is duplicative is informed by the doctrine of claim preclusion. "[T]he true test of the sufficiency of a plea of `other suit pending' in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as `the thing adjudged,' regarding the matters at issue in the second suit." Id. (quoting United States v. The Haytian Republic, 154 U.S. 118, 14 S.Ct. 992, 38 L.Ed. 930 (1894)). Thus, a suit is duplicative, and claims would be precluded, where "the same or connected transactions are at issue and the same proof is needed to support the claims in both suits or, in other words, whether facts essential to the second suit were present in the first suit." Id. at 139 (citation omitted); see also Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir.1997) (claim preclusion applies when a second suit "involves the same `transaction' or connected series of transactions as the earlier suit; that is to say, the second cause of action requires the same evidence to support it and is based on facts that were also present in the first.").

Claim preclusion, however, "does not preclude litigation of events arising after the filing of the complaint that formed the basis of the first lawsuit.... The plaintiff has no continuing obligation to file amendments to the complaint to stay abreast of subsequent events; plaintiff may simply bring a later suit on those later-arising claims." Curtis, 226 F.3d at 139 (citing SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1464 (2d Cir.1996)). The instant suit is based on a single letter sent by JBC to plaintiff in February 2003, after the two earlier lawsuits had been commenced. Even if the letter were part of the same debt collection activity that defendants had been engaged in and which was the subject of plaintiff's prior suits, the February 17, 2003 letter constitutes a separate event which may violate the FDCPA independently of prior communications from defendants. Because the facts underlying this suit arose subsequent to the filing of plaintiffs' previous complaint and are distinct from the facts underlying the previous suit, this action is not duplicative.

Defendants argue that by bringing three separate actions, plaintiff may obtain more damages than if she had brought a single action based on all claimed violations. The FDCPA provides that statutory damages "in the case of any action by an individual" shall not "exceed[ ] $1,000," 15 U.S.C. § 1692k(a)(2)(A), and based on this language at least two circuits have held that the FDCPA limits additional...

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