Alger v. Ganick, O'Brien & Sarin, CIV. A. 96-11901-MBB.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: Bowler
• Citation: 35 F.Supp.2d 148
• Decision Date: 09 February 1999
• Docket Number: No. CIV. A. 96-11901-MBB.,CIV. A. 96-11901-MBB.
• Parties: Bruce R. ALGER, Plaintiff, v. GANICK, O'BRIEN & SARIN, Massachusetts Higher Education Assistance Corporation, Defendants.

35 F.Supp.2d 148 Bruce R. ALGER, Plaintiff,
v.
GANICK, O'BRIEN & SARIN, Massachusetts Higher Education Assistance Corporation, Defendants. No. CIV. A. 96-11901-MBB. United States District Court, D. Massachusetts. February 9, 1999.

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Matthew Cobb, Law Firm of Matthew Cobb, Boston, MA, for Bruce R. Alger, Plaintiff.

Lawrence E. O'Brien, Lawrence E. O'Brien, Ganick, O'Brien & Sarin, Kevin J. McCaughey, Ganick, O'Brien & Sarin, Dorchester, MA, J. Christopher Sheehan, John D. Fitzpatrick, Fitzpatrick & WarrenBrand LLP, Boston, MA, for Ganick, O'Brien & Sarin, Massachusetts Higher Education Assistance Corporation, Defendants.

MEMORANDUM AND ORDER RE: DEFENDANT GANICK, O'BRIEN'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED AND SUPPLEMENTAL COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (DOCKET ENTRY # 31); MOTION TO DISMISS OF DEFENDANT MASSACHUSETTS HIGHER EDUCATION ASSISTANCE CORPORATION (NO DOCKET ENTRY NO. ASSIGNED)

BOWLER, United States Magistrate Judge.

Defendant Ganick, O'Brien & Sarin ("GOS"), a Massachusetts law firm, moves to dismiss this debt collection action for lack of subject matter jurisdiction and failure to state a claim for relief. (Docket Entry # 31). Plaintiff Bruce R. Alger ("Alger") a Massachusetts resident, opposes the motion. (Docket Entry # 36). Defendant Massachusetts Higher Education Assistance Corporation ("MHEAC"), a corporate body created by state statute to assist students in obtaining higher education in the medical and dental fields, also seeks dismissal for lack of subject matter jurisdiction and failure to state a claim for relief. (Motion to Dismiss of Defendant Massachusetts Higher Education Assistance Corporation, No Docket Entry No. Assigned). Alger also opposes this motion and incorporates by reference his opposition to GOS' motion to dismiss. (Docket Entry # 41).

PROCEDURAL BACKGROUND

Alger initially filed this action on September 20, 1996, a determinative date for purposes

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of his federal claim against GOS under the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. §§ 1692 et seq. In April 1997 GOS filed its first motion to dismiss which characterized the first amended complaint¹ as time barred under Rule 12(b)(1), Fed.R.Civ.P. (Docket Entry # 9). In February 1998 the district judge allowed GOS' first motion to dismiss (Docket Entry # 9) without prejudice to Alger refiling the complaint to allege additional facts to establish subject matter jurisdiction over GOS. (Docket Entry # 20). The first amended complaint set forth only one count against GOS under the FDCPA.²

As explained in the February 1998 Order, the FDCPA contains a jurisdictional, one year statute of limitations, 15 U.S.C. § 1692k(d) ("section 1692k(d)"). Examining the first amended complaint, the district judge determined that Alger failed to allege any conduct on the part of GOS occurring after September 20, 1995, which would constitute a violation of the FDCPA. The district judge focused on the actions of GOS as opposed to the effect of GOS' actions upon Alger, i.e., Alger's arrest under a capias after September 20, 1995. Quoting case law, the district judge found that GOS' "last opportunity to comply with the Act" was GOS' request for a new capias transmitted to the Lowell District Court on August 25, 1995, an easily determinable date. Significantly, the district judge found that any claims based on the FDCPA "that occurred before September 20, 1995 are time-barred." As the law of this case, this necessary determination now guides this court in examining the merits of Alger's renewed FDCPA claim against GOS.

After the district judge dismissed the FDCPA count against GOS without prejudice, Alger filed a motion for leave to file a second amended and supplemental complaint. (Docket Entry # 23). The district judge allowed the motion due to the absence of an opposition. GOS and MHEAC presently seek dismissal of this second amended and supplemental complaint.

In large part, the second amended and supplemental complaint contains state law claims filed under this court's supplemental jurisdiction. See 28 U.S.C. § 1367(a). Under the Judicial Improvements Act of 1990, supplemental jurisdiction, which encompasses claims involving "the same nucleus of operative facts," Roche v. John Hancock Mutual Life Insurance Company, 81 F.3d 249, 256 (1st Cir.1996), automatically extends to claims against additional parties. 28 U.S.C. § 1367(a).

The single federal count in the second amended and supplemental complaint is Count I against GOS under the FDCPA. Count II against GOS and MHEAC alleges a violation of Massachusetts General Laws chapter 93, section 49 ("chapter 93"). Counts III and IV allege violations of Massachusetts General Laws chapter 93, section 9 ("chapter 93A") and the Massachusetts Civil Rights Act, Massachusetts General Laws chapter 12, sections 11H and 11I (the "MCRA") on the part of MHEAC. Counts V through VIII respectively set forth claims against MHEAC for abuse of process, libel and slander and intentional infliction of emotional distress.

I. DEFENDANT GANICK, O'BRIEN'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED AND SUPPLEMENTAL COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (DOCKET ENTRY # 31)

GOS moves to dismiss the FDCPA count on the basis of failure to state a claim for relief under Rule 12(b)(6), Fed.R.Civ.P. If this court dismisses the FDCPA count, GOS asserts that this court lacks subject matter jurisdiction over the remaining state law claims under Rule 12(b)(1), Fed.R.Civ.P. In the event this court does not dismiss the FDCPA count, GOS moves to dismiss the chapter 93 count under Rule 12(b)(6), Fed. R.Civ.P.

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FACTUAL BACKGROUND³

In 1982 Alger obtained two student loans from a private bank in the total amount of $5,000. The Student Loan Marketing Association, commonly known as Sallie Mae,⁴ acquired the loans at an undetermined time. Sallie Mae thereafter sold the loans to MHEAC.

In March 1985 MHEAC obtained a judgment against Alger in Boston Municipal Court in the amount of $6,238.22. Alger never received notice of any hearing or related court date leading to the judgment.

From 1985 to 1990 Alger forwarded payments of $62.53 each month to GOS. In 1990, however, Alger became unemployed. Consequently, from 1990 to 1993, Alger made only 22 monthly payments to GOS.

In 1993 GOS applied for supplementary process in the Lowell District Court.⁵ In August 1993 Alger received a supplementary process summons to appear on September 20, 1993, in the Lowell District Court for an examination. After receiving the summons, Alger telephoned GOS and spoke with an attorney who refused to provide him with an accounting of the debt. Letters from GOS to Alger indicated a debt of $2,274.04 whereas information Alger obtained from MHEAC indicated a debt of $1,447.

At the September 20, 1993 hearing in Lowell District Court, the court ordered Alger to pay the debt and directed GOS and Alger to "work out the amount." The GOS attorney and Alger conferred but Alger refused to sign the form unless the attorney crossed out the $2,355.35 amount owed, which Alger disputed, and allowed Alger to send the monthly payments directly to MHEAC. The attorney agreed to Alger's requests. After Alger signed the agreement and left the court-house, however, the GOS attorney added the name of a GOS attorney as the designated recipient of the payments and filed the agreement with the court.

In October 1993 Alger began making monthly payments of $50 directly to MHEAC. He proceeded to make additional payments in a timely manner and notified GOS of each payment. Notwithstanding Alger's payments, in January 1994 GOS sent a letter to Alger informing him that he was "several payments in arrears."

In August 1994 GOS obtained a capias for Alger's arrest from the Lowell District Court. In October 1994 GOS wrote to Alger informing him that he failed to appear in court and that, as a result, "the court has defaulted you and issued a capias for your arrest." Upon speaking with the clerk of the Lowell District Court, Alger determined there was no court hearing and the court had not issued a default.

On December 7, 1994, January 23, 1995, and April 3, 1995, GOS transmitted additional letters to Alger. The January letter included a statement that Alger was in arrears even though he had been making timely payments to MHEAC and advising GOS of the payments. The April letter represented that

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GOS had been instructed to present the capias to a sheriff unless Alger contacted GOS within five days. According to Alger, GOS had not been given these instructions.⁶

In June 1995 Alger received a letter from a process server. The letter stated that "our office" was in possession of a capias for Alger's arrest. The letter further advised Alger to contact the office and establish a mutually agreeable court date.

On August 25, 1995, GOS transmitted a letter to Lowell District Court requesting a new capias due to the expiration of the previous capias.⁷ The court issued the new capias on September 19, 1995.

Turning to the events occurring after September 20, 1995, on October 2, 1995, GOS falsely informed the process server that Alger had not been making the required payments to MHEAC and falsely stated that the outstanding debt was $1,500.65. GOS then instructed the process server to notify Alger about the outstanding debt. On October 8, 1995, Alger received another letter from the process server directing Alger to contact the process server's office to arrange a court date. The letter advised Alger that if he did not respond, the court would set a date and, if Alger failed to appear, the process server would contact the police for assistance. The letter concluded with the entreaty not to "make an arrest necessary."⁸

In November 1995 Alger contacted MHEAC. MHEAC informed him that his outstanding balance was only $899.25, less than the amount claimed by...