Avent v. Platinum Plus Auto Prot.

• Decision Date: 23 February 2021
• Docket Number: 1:19-cv-1494 (BKS/DJS)
• Citation: Avent v. Platinum Plus Auto Prot., 1:19-cv-1494 (BKS/DJS) (N.D. N.Y. Feb 23, 2021)
• Parties: REUBEN AVENT, Plaintiff, v. PLATINUM PLUS AUTO PROTECTION, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

REUBEN AVENT, Plaintiff, v. PLATINUM PLUS AUTO PROTECTION, et al., Defendants.

1:19-cv-1494 (BKS/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 23, 2021

Appearances:

Plaintiff, pro se:

Reuben Avent

New York, New York

For DefendantsPalmer Administrative Services, Inc.and PayLink Direct:

Eric Weinstein

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas

New York, NY 10105

For Defendant Platinum Plus Auto Protection

Haley H. Jung

Jeffrey H. Kass

Lewis Brisbois Bisgaard & Smith LLP

77 Water Street, Suite 2100

New York, NY 10005

For DefendantAtlantic Specialty Insurance Company

Helen E. Tuttle

Erin L. Hoffman

Faegre Drinker Biddle & Reath LLP

1177 Avenue of the Americas

41^st Floor

New York, NY 10036 Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I.INTRODUCTION

Plaintiffpro seReuben Avent brings this action asserting a claim of racial discrimination under 42 U.S.C. § 1981 and a claim under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., as well as state law claims for fraud in the inducement and breach of contract, arising out of warranty protection insurance for his vehicle.He has named as defendants Platinum Plus Auto Protection ("Platinum Plus"), Atlantic Specialty Insurance Company("Atlantic"), Palmer Administrative Services, Inc.("Palmer"), PayLink Direct (collectively, the "Company Defendants"), and Christina Strain.¹Presently before the Court are the Company Defendants' motions to dismiss under Rule 12(b)(6), (Dkt. Nos. 19, 21, 31), which Plaintiff opposes, and Plaintiff's cross-motion for default judgment, (Dkt. No. 42), which the Company Defendants oppose.(Dkt. Nos. 44, 45, 47).For the reasons that follow, the Company Defendants' motions to dismiss are granted in part and Plaintiff's motion for default judgment is denied.

II.FACTS²

On March 20, 2019, Plaintiff, who is African American, purchased a Mercedes Benz.(Dkt. No. 2, ¶¶ 2, 8).Shortly after, on April 10, 2019, Plaintiff was contacted by DefendantChristina Strain, a sales agent of Defendant Platinum Plus, with an offer of "insurance warranty protection" for the vehicle.(Id.¶ 8).Strain represented the policy as offering an "unconditional insurance guarantee over the vehicle's engine and all related mechanics of the vehicle" and providing immediate "tow[ing] and roadside assistance, as well as hotel service without dispute."(Id.¶ 10).Plaintiff paid a $395.00 down payment towards a five-year service contract which cost $4,579.00.(Id.¶ 9).Defendant PayLink Direct was to loan Plaintiff the money, to be paid back in monthly payments over the course of a year.(Id.).Plaintiff alleges that Defendant Atlantic "would supervise" all of the Defendants"and have the last decision in all cases involving the contract and the power to compel any provision said therein over the defendants."(Id.).

On April 30, 2019, Plaintiff received "a written contract," consisting of a Vehicle Service Agreement ("VSA") issued by Palmer and a Payment Plan Agreement with PayLink Direct.(Id.¶ 11, pp. 15-26;Dkt.Nos. 19-2, 19-3).³Performance under the VSA was "guaranteed through a policy of insurance issued by Atlantic."(Dkt.No. 19-2, at 7).Platinum Plus was listed as the seller of the VSA.(Id., at 2).

The VSA states that "coverage is not subject to any verbal representation made by the seller."(Dkt.No. 19-2, at 4).Contrary to Strain's representations, under the VSA Plaintiff wouldhave to "pay for everything himself, including tow and roadside assistance and apply for a refund later" and the coverage was "extremely limited."(Dkt. No. 2, ¶¶ 13-14).The VSA had a $100 deductible.(Dkt.No. 19-2, at 6).Plaintiff realized that the policy was "third party endorsed," and he may have to apply for reimbursement "with several other companies" for any authorized repairs Plaintiff paid out of pocket.(Dkt. No. 2, ¶ 13).⁴Although Strain represented that "he would receive immediate protection," upon receipt of the VSA Plaintiff recognized that the coverage did not begin until 30 days after he entered into the VSA.(Id.¶¶ 14, 16;Dkt.No. 19-2at 2)(reflecting a purchase date of April 25, 2019, and a waiting period of 30 days and 1,000 miles before coverage begins).Under the terms of the VSA, the policy could be cancelled by sending a written request with a certified odometer reading to Palmer at the address provided in the document.(Id. at 16).The New York "Special State Requirements/Disclosures" provision attached to the VSA states, in relevant part:

If no claim has been made under this Agreement, You may return this Agreement within twenty (20) days of the date the Agreement was mailed to You, or within ten (10) days of delivery if the Agreement was delivered to You at the time of sale, whichever is less.In such a case, this Agreement will be null and void and We will refund You the full amount of the purchase price of this Agreement.

(Id. at 19)(emphasis omitted).

The Payment Plan Agreement provided that Plaintiff was to pay PayLink Direct a total of $4,184 (the total cash price of the VSA less the $395 down payment) in twelve monthly amounts of $348.67 beginning on May 25, 2019.(Dkt.No. 19-3)."Per" the phone call with Defendant Strain, the monthly payments were to be charged to Plaintiff's credit card.(Id. at 3).ThePayment Plan Agreement reaffirmed Plaintiff's "right to cancel the Vehicle Service Contract at any time in accordance with the terms of the Vehicle Service Contract."(Id. at 4).

On May 1, 2019, Plaintiff called Platinum Plus to ask for a full refund of his security deposit, but only reached an answering machine.(Dkt. No. 2, ¶ 16).For months, Plaintiff called Platinum Plus, but was never able to reach a Platinum Plus employee or get anyone to return his messages.(Id.).Plaintiff also called PayLink Direct, Palmer, and Atlantic to reject the terms of the VSA, request a full refund of his security deposit, and inform them that he could not reach Platinum Plus.(Id.¶ 17).All three companies "refused to assist plaintiff" and "claimed that the contract was final and binding and solely up to the agent to alter and out of their control."(Id.).

PayLink Direct informed Plaintiff that "the terms were final" and Plaintiff"had incurred a $4,000 dollar debt" based on his phone called with Strain.(Id.¶ 18).PayLink Direct then "instituted collections on that debt," and began "harass[ing] and intimidate[ing]"Plaintiff through phone calls.(Id.).PayLink Direct's attempt to collect the outstanding balance "damaged [Plaintiff's] credit rating and destroyed his chances of securing a loan on a home."(Id.).Plaintiff was also threatened and harassed through phone calls from PayLink Direct's employees for "his refusal to accept and pay the debt."(Id.).The Defendants acted together to "get Plaintiff to falsely admit the debt" that he owed PayLink Direct, (id.), and "[p]honecalls were made by each defendant from April, 2019 to and through September, 2019, to force plaintiff to concede and pay [his] unlawful false debt."(Id.¶ 34).

Plaintiff filed a complaint with the Better Business Bureau in an attempt to get Defendants to return Plaintiff's down payment, which Defendants still refused to do.(Id.¶ 19).⁵Plaintiff has never used any of the services offered by the VSA.(Id.).Plaintiff alleges that Defendants"targeted minority races, specifically African Americans" for discrimination and fraud.(Id.¶ 20).Plaintiff alleges that DefendantChristina Strain, acting for Platinum Plus, "single[d] out and profile[d]" him "through phone solicitation" because he was African American and in an attempt to misrepresent and sell him "an offer of insurance warranty protection" and obtain a down payment of $395 "through racial discrimination."(Id.¶¶ 8-9).Plaintiff seeks $5,000,000 in compensatory and punitive damages.(Id.¶ 37).

III.MOTION TO DISMISS

A.Standard of Review

To survive a motion to dismiss, "a complaint must provide 'enough facts to state a claim to relief that is plausible on its face.'"Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135(2d Cir.2013)(quotingBell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007))."Although a complaint need not contain detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations 'must be enough to raise a right to relief above the speculative level.'"Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist. LEXIS 155140, at *5(S.D.N.Y.Sept. 22, 2017)(quotingTwombly, 550 U.S. at 555).The Court must accept as true all factual allegations in the amended complaint and draw all reasonable inferences in the plaintiff's favor.SeeEEOC v. Port Auth., 768 F.3d 247, 253(2d Cir.2014)(citingATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98(2d Cir.2007)).However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."Ashcroft v. Iqbal, 556 U.S. 662, 678(2009)."While pro secomplaints must contain sufficient factual allegations to meet the plausibility standard, [courts] read them with 'special solicitude' and interpret them 'to raise the strongest arguments that theysuggest.'"Roman v. Donelli, 347 F. App'x 662, 663(2d Cir.2009)(summary order)(quotingTriestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75(2d Cir.2006)).

B.Failure to Follow Local Rules

Defendant Platinum Plus argues that the Court should strike the last fifteen pages of Plaintiff's response brief because Plaintiff has violated the Local Rules of the Northern District of New York by "improperly combin[ing] two separate opposition briefs," and "exceed[ing] the permissible page limit by 15 pages."(Dkt. No. 47, at 5(citing N.D.N.Y. Local Rule 7.1(c))).Plaintiff does not respond to this argument.

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