Derisme v. Hunt Leibert Jacobson P.C.

• Citation: 880 F.Supp.2d 339
• Decision Date: 23 July 2012
• Docket Number: Civil Action No. 3:10cv244(VLB).
• Parties: Fabiola DERISME, Plaintiff, v. HUNT LEIBERT JACOBSON P.C., Richard M. Leibert, Richard C. Jacobson, Kimball Haines Hunt, Defendants.
• Court: U.S. District Court — District of Connecticut

880 F.Supp.2d 339

Fabiola DERISME, Plaintiff,

v.HUNT LEIBERT JACOBSON P.C., Richard M. Leibert, Richard C. Jacobson, Kimball Haines Hunt, Defendants.

Civil Action No. 3:10cv244(VLB).

United States District Court,

D. Connecticut.

July 23, 2012.

Fabiola Derisme, Easton, CT, pro se.

Peter A. Ventre, Hunt Leibert Jacobson PC, Hartford, CT, for Defendants.

MEMORANDUM OF DECISION GRANTING DEFENDANTS' [DKT. # 233] MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S [DKT. # 244] CROSS MOTION FOR SUMMARY JUDGMENT

VANESSA L. BRYANT, District Judge.

The Plaintiff, Fabiola Is Ra El Bey,¹ proceeding pro se, brought this suit alleging violations of the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. §§ 42–110b(a) and—110g(a), against Defendant Hunt Leibert Jacobson, PC, a Connecticut-based law firm and three individual Defendants who are partners of Hunt Leibert Jacobson, PC (collectively referred to herein as “Hunt Leibert”) in connection with a pending foreclosure action in Connecticut Superior Court. Pending before the Court is Hunt Leibert's motion for summary judgment and Plaintiff's cross motion for summary judgment. For the reasons set forth below,Defendants' motion for summary judgment is granted and Plaintiff's cross-motion is denied.

Procedural Background

This case has an extensive procedural background, a summary of which will enhance the understanding of this decision. This is the first of two substantially similar civil actions that the pro se Plaintiff has filed in this Court against Defendant law firm Hunt Leibert in connection with two pending state foreclosure actions. See Derisme v. Hunt Leibert Jacobson, PC, No. 3:10–cv–23(VLB) (D.Conn. Filed Jan. 7, 2010).

On February 19, 2010, the Plaintiff filed the instant lawsuit alleging violations of the FDCPA and the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1961 et seq. On March 26, 2010, Hunt Leibert filed its first motion to dismiss. The then-assigned District Judge, the Honorable Mark R. Kravitz, noting that Plaintiff's complaint “was not a model of clarity” held a status conference regarding the first motion to dismiss on May 27, 2010. After the conference, Judge Kravitz issued an Order denying the first motion to dismiss. Based on Plaintiff's representations during the conference, the court concluded that Plaintiff's only claims were an FDCPA claim and a RICO claim. See [Dkt. # 25]. During the conference, Judge Kravitz directed Plaintiff to file a RICO Case Statement as required by the United States District Court for the District of Connecticut's Standing Order in Civil RICO Cases no later than June 28, 2010. Plaintiff complied with the Court's Order by filing her RICO Case Statement on June 28, 2010. See [Dkt. # 33]. The Court also informed Hunt Leibert that it could file a motion to dismiss the RICO claim no later than July 15, 2010.

On June 8, 2010, Hunt Leibert filed its second motion to dismiss and a motion for a protective order to stay discovery on the ground that the court lacked subject matter jurisdiction over the action. See [Dkts. 30, 31]. Hunt Leibert then filed an amended second motion to dismiss to correct several typographical errors on July 1, 2010. [Dkt. # 35]. Although Judge Kravitz specifically informed Hunt Leibert during the May 27, 2010 conference that it could file a motion to dismiss the RICO claim for failure to state a claim, Hunt Leibert's Amended Second Motion to Dismiss was styled as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Hunt Leibert argued in support of the motion that this Court lacks federal question jurisdiction because the First Amended Complaint fails to state any federal-law claim for relief. See [Dkt. # 30]. Plaintiff had numerous opportunities to respond to both arguments and had filed several voluminous memoranda addressing both arguments. See [Dkt. # 47]. Judge Kravitz therefore construed the amended second motion to dismiss as a consolidated motion asserting both lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6).

On July 6, 2010, Plaintiff filed a motion to amend the complaint and attached a proposed second amended complaint, [Dkt. # 37], in which Plaintiff asserted that the court had subject matter jurisdiction under the federal question jurisdiction statute, see28 U.S.C. § 1331, and under the diversity jurisdiction statute. See id. § 1332. She also asserted that the District Court has subject matter jurisdiction under 28 U.S.C. § 1337, which provides federal district courts with jurisdiction over civil actions “arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.” The second amended complaint still asserted an FDCPA claim and a RICO claim, and added a CUTPA claim. The second amended complaint also asserted that the District Court had supplemental jurisdiction over related state-law claims, see18 U.S.C. § 1367.

On July 14, 2010, Hunt Leibert filed a third motion to dismiss, despite the fact that the Court had not yet ruled on the second motion to dismiss and Plaintiff's motion to amend. On July 15, 2010, the Court denied the third motion to dismiss without waiting for a response from Plaintiff. Judge Kravitz instructed Hunt Leibert that it should file a motion to supplement its briefing on the second motion to dismiss if it wished to make any new legal arguments. See [Dkt. # 41]. The Court also instructed Hunt Leibert to direct any future briefing toward Plaintiff's second amended complaint rather than toward the first amended complaint. See id. On July 27, 2010, Hunt Leibert filed a motion to supplement the amended second motion to dismiss [Dkt. # 43] along with a supplemental memorandum in support of the amended second motion to dismiss. [Dkt. # 44].

On August 26, 2010, Judge Kravitz denied the second motion to dismiss as moot, denied the motion for protective order concluding that it had subject matter jurisdiction over the case, granted in part and denied in part Hunt Leibert's amended second motion to dismiss, granted in part and denied in part Plaintiff's motion to amend the complaint, and granted Hunt Leibert's motion to supplement the amended second motion to dismiss. See [Dkt. # 51], see also Derisme v. Hunt Leibert Jacobson, PC, 2010 WL 3417857 (D.Conn. Aug. 26, 2010). Judge Kravitz held that Plaintiff's RICO claims against both Hunt Leibert and the individual Defendants failed as a matter of law and did not permit Plaintiff to further amend her RICO allegations because any such amendment would be futile. Id. at *8. The Court further allowed Plaintiff's second amended complaint to the extent that it asserted claims under the FDCPA and CUTPA. Lastly, Judge Kravitz held that it had federal question jurisdiction in this case and that Plaintiff's other assertions regarding subject matter jurisdiction had no merit. Id. at *7. Although still not a model of clarity, Judge Kravitz construed Plaintiff's second amended complaint, ruling that the Plaintiff alleged that Hunt Leibert violated § 1692g(a), (b) and (e) of the FDCPA and also violated CUTPA. [Dkt. # 37].

On October 4, 2010, Hunt Leibert filed a motion for judgment on the pleadings and argued that Plaintiff could prove no set of acts in support of her remaining claims in her second amended complaint. See [Dkt. # 64]. On November 10, 2010, Judge Kravitz granted in part and denied in part Hunt Leibert's motion for judgment on the pleadings. See Derisme, 2010 WL 4683916 (D.Conn. Nov. 10, 2010). Judge Kravitz held that the second amended complaint did not include sufficient factual allegations to reasonably infer that Hunt Leibert violated § 1692g(b) and (e) and therefore dismissed Plaintiff's FDCPA claim to the extent it was based on violations of § 1692g(b) and (e). Id. at *6–7. The Court held that the second amended complaint, construed liberally, included sufficient factual material to allow a court to draw a reasonable inference that Hunt Leibert failed to comply with the FDCPA's notice requirements during its initial telephone communication with Plaintiff under § 1692g(a). Id. at *6. Judge Kravitz ruled that Plaintiff “may only continue to pursue her FDCPA claim to the extent that she alleges that Hunt Leibert violated § 1692g(a) in its initial telephone communication with her in 2008. She may only continue to pursue her CUTPA claim to the extent that she asserts that by violating § 1692g(a) in 2008, Hunt Leibert also violated § 42–110b(a).” Id. at *9. Judge Kravitz also noted in its decision that the FDCPA claims are governed by a one-year statute of limitations but since Hunt Leibert did not raise a statute of limitations argument and that it was “at least conceivable that the statute of limitations might be equitably tolled” he did not need to address the statute of limitations issue at that time. Id. at *6 n. 3.

On April 13, 2011, the Plaintiff once again moved to amend her complaint seeking to add several new causes of action including intentional and negligent infliction of emotional distress, fraudulent concealment and misrepresentation. See [Dkt. # 140]. On April 14, 2011 the case was transferred to this Court. On June 27, 2011, the Court denied Plaintiff's motion to amend the complaint finding that since the “Plaintiff has already amended the complaint twice, the Court has already ruled on a motion to dismiss and a motion for judgment on the pleadings, another amendment which adds entirely new causes of action at this late stage in the litigation would create prejudice to the opposing party as discovery is significantly complete and such new causes of action will require significant resources to conduct additional discovery and create additional delay in the resolution of the dispute.” See [Dkt. # 178]. The Court...