Desmarattes v. Consol. Edison
| Decision Date | 23 February 2023 |
| Docket Number | 20-CV-4723 (KAM) (TAM) |
| Parties | MELINDA DESMARATTES, Plaintiff, v. CONSOLIDATED EDISON, INC., SUNRISE CREDIT SERVICES, INC., and L J ROSS ASSOCIATES, INC., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Plaintiff Melinda Desmarattes (“Plaintiff”), proceeding pro se, commenced the instant action against Defendants Consolidated Edison, Inc. (“ConEdison”); Sunrise Credit Services, Inc. (“Sunrise”); and L J Ross Associates, Inc. (“LJRA” or “Defendant”) on September 29, 2020, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681-1681X and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. (Complaint (“Compl.”), ECF No. 1, at 6-9.) Plaintiff subsequently filed an amended complaint on January 18, 2022, alleging violations of the FDCPA and the Federal Trade Commission Act (“FTC Act”), 15 U.S.C §§ 41-58. (First Amended Complaint (“FAC”), ECF No. 21, ¶ 1.) Defendant LJRA then filed a motion to dismiss, and Plaintiff responded by sending LJRA yet another amended complaint, alleging four violations of the FDCPA. ) On September 30, 2022, the Honorable Kiyo A. Matsumoto referred Defendant's motion to dismiss the FAC to the undersigned magistrate judge. (See Sept. 30, 2022 ECF Order Referring Motion.)
For the reasons set forth below, the Court respectfully recommends that Defendant's motion to dismiss the FAC be denied as moot and that, in an exercise of discretion, Plaintiff's SAC be construed as a motion to amend under Federal Rule of Civil Procedure 15. For the reasons set forth below, the Court further recommends that Plaintiff be permitted to proceed on one of the claims set forth in the proposed SAC, but that leave to amend should be denied as to the remainder of her claims.
As Plaintiff is a pro se litigant, in reviewing her SAC as a motion to amend, the Court considers the factual allegations and information set forth in the original complaint, its attachments, the FAC, “to the extent such allegations are not repeated in the [SAC],” and the proposed SAC. Briggs v. SCO Fam. of Servs., No. 16-CV-3882 (GRB) (SIL), 2021 WL 7209004, at *2 (E.D.N.Y. Jan. 6, 2021); see also Milano v. Astrue, No. 05-CV-6527 (KMW) (DF), 2007 WL 2668511, at *2 (S.D.N.Y. Sept. 7, 2007).
The SAC alleges that, in 2019, Plaintiff received a dunning letter[2] from Defendant that sought to collect $1,992. (SAC, ECF No. 23, ECF page 51, ¶ 25.) The alleged debt was related to an outstanding ConEdison account, “a regulated utility providing electric and gas service in New York City,” which was “incurred for personal, family, or household purposes.” (Id., ECF pages 50-51, ¶¶ 12, 27; Compl., ECF No. 1, at 6.) In the original complaint, Plaintiff stated that “[t]he debt amount of $1992 reported to national consumer reporting agencies by the Defendant [L]RA] is incorrect.” (Compl., ECF No. 1, at 7.) Plaintiff further stated that she “made a payment in December 2019 for $142.32 to Defendant [Sunrise],” related to the alleged debt to ConEdison and “spoke to the [Sunrise] Customer Representative in September 2020 who confirmed [the] $142.32 payment to Defendant [Sunrise].” (Id. at 8.) In the SAC, Plaintiff unequivocally denies that she owes $1,992 to ConEdison or LJRA. (SAC, ECF No. 23, ECF page 51, ¶¶ 30-33.)
Plaintiff also alleges that “[i]n numerous instances, Defendant call[ed] Plaintiff repeatedly or continuously with intent to annoy, harass, or abuse,” noting that Defendant “continue[d] to call even after being told, either orally or in writing, to stop,” and that Defendant had “call[ed] multiple times per day or frequently over an extended period of time (for example, calling some Plaintiff three or more times per day).” (FAC, ECF No. 21, ¶ 13.) She also alleges that Defendant “further attempted to collect the alleged debt from Plaintiff by reporting the alleged debt to consumer reporting agencies instructing and causing consumer reporting agencies to publish the alleged debt in consumer reports concerning Plaintiff.” (SAC, ECF No. 23, ECF page 51, ¶ 28.) Plaintiff further claims that she was harmed in that she “suffered damage by loss of credit, loss of ability to purchase and benefit from credit, increased interest rate, los[s] of mortgage loans, [and] the mental and emotional pain, anxiety, anguish, humiliation and embarrassment of credit denials.” (Compl., ECF No. 1, at 7.) She also alleges that she “suffered documented physical and emotional ailments due to the stress of the Defendants['] call to the Plaintiff's cell phone.” (Compl., ECF No. 1, at 7.)
Plaintiff included several attachments to her original complaint, including the following:[3] (1) her Experian credit report dated August 27, 2020, listing a $1,992 debt associated with LJRA ( the original creditor as ConEdison) and Sunrise (again listing the original creditor as ConEdison); (2) her credit score report, as prepared by “myFICO,” noting a $1,992 debt associated with “Consolidated Edison” and a second entry for the same amount associated with “Con Edison”; (3) three emails (from Avant/WebBank; LendingPoint, LLC; and Northpointe Bank), declining to approve Plaintiff for a loan; (4) medical records from June 9, 2020, indicating that Plaintiff has had hair loss for six years and noting alopecia scarring in a dermatologic exam; and (5) a letter from Sunrise, dated December 9, 2019, that states: and lists six scheduled payments of $142.32 due monthly starting December 21, 2019 and ending May 21, 2020.
The September 23, 2019 email from Avant/WebBank made the following observations: “Key factors that adversely affected your credit score: Derogatory public record or collection files, Too few accounts currently paid as agreed, Proportion of loan balances to loan amounts is too high, Number of accounts with delinquency, [and] The number of inquiries on the consumer's credit file ....” (Id.) LendingPoint's December 14, 2019 email similarly observed “[k]ey factors that adversely affected [Plaintiff's] credit score: Serious delinquency, and public record or collection filed,” among other factors. (Id., ECF page 39.) The August 11, 2020 email from a branch manager at Northpointe Bank in New Jersey states: (Id., ECF page 41.)[4]
As noted above, Plaintiff filed her original complaint against all three Defendants on September 29, 2020. (Compl., ECF No. 1.) Also on September 29, 2020, Plaintiff moved to proceed in forma pauperis, which was granted by Judge Matsumoto on October 28, 2020. (Oct. 28, 2020 ECF Order, ECF No. 5.) In connection with the grant of in forma pauperis status, Judge Matsumoto dismissed Plaintiff's FDCPA claim against ConEdison for failure to state a claim on which relief may be granted. (Id.) On April 12, 2021, Defendant LJRA filed its answer and affirmative defenses. (LJRA's Answer (“Answer”), ECF No. 11.) On July 21, 2021, Plaintiff filed a notice of settlement as to Defendant Sunrise, and it was later dismissed from the case. (Notice of Settlement, ECF No. 15; Dec. 14, 2021 ECF Order.)
On October 25, 2021, Defendant LJRA, the only remaining defendant, filed a letter motion requesting a pre-motion conference for an anticipated motion on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Letter Mot., ECF No. 19.) After a pre-motion conference on December 14, 2021, Judge Matsumoto granted Plaintiff leave to amend her complaint (by January 14, 2022), instead of proceeding with motion practice. (Dec. 14, 2021 ECF Minute Entry.) Judge Matsumoto stated that “[i]f LJ Ross Associates intends to move to dismiss the amended complaint, the parties shall propose a briefing schedule in their [February 4, 2022] joint letter.” (Id.) On January 18, 2022, Plaintiff filed her First Amended Complaint, alleging violations of the FTC Act and the FDCPA. (FAC, ECF No. 21, ¶ 1.) Judge Matsumoto subsequently set a briefing schedule for the motion, and Defendant filed the fully-briefed motion on March 28, 2022, consistent with Judge Matsumoto's individual rules. (Feb. 7, 2022 Scheduling Order; Def.'s Mot. to Dismiss,[5] ECF No. 23, at ECF page 3.)
The fully-briefed motion papers include a document entitled “Amended Complaint,” which counsel for Defendant represents was provided by Plaintiff in response to LJRA's motion to dismiss. (Def.'s Mot. to Dismiss ECF No. 23, ECF pages 49-53; see Def.'s Reply in Supp. of Mot. to Dismiss (“Def.'s Reply”), ECF 23, at ECF page 55) (representing that Plaintiff provided the SAC in lieu of an opposition brief).) While Plaintiff's original complaint alleged violations of the FDCPA and FCRA, and her FAC alleged violations of the FDCPA and the FTC Act, the SAC only alleges violations of four subsections of the FDCPA, each of which is considered below. Notably, the SAC has not been formally filed as such, and Plaintiff has never sought, nor been granted, leave to file a second amended complaint. In its...
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