Guerrero ex rel. Situated v. GC Servs. Ltd.

• Decision Date: 23 March 2017
• Docket Number: CV 15-7449 (DRH) (AKT)
• Parties: WILLIAM GUERRERO, Individually and on Behalf of all others Similarly Situated, Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, Defendant.
• Court: U.S. District Court — Eastern District of New York

WILLIAM GUERRERO, Individually andon Behalf of all others Similarly Situated, Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, Defendant.

CV 15-7449 (DRH) (AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 23, 2017

MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, Magistrate Judge:

I. PRELIMINARY STATEMENT

Plaintiff William Guerrero ("Plaintiff" or "Guerrero") brings the instant action on behalf of himself and all others similarly situated against Defendant GC Services Limited Partnership ("Defendant" or "GCS") alleging violations arising under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. See generally Complaint ("Compl.") [DE 1]. Presently before the Court is Plaintiff's motion to amend the Complaint. See DE 31. For the reasons set forth below, Plaintiff's motion to amend is GRANTED.

II. BACKGROUND

A. The Proposed Amended Complaint

The following information has been taken directly from Plaintiff's Proposed Amended Complaint. All facts are assumed to be true for purposes of deciding the motion to amend and are construed in a light most favorable to the Plaintiff as the moving party.¹ See, e.g., LaFaro v.N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009); Matthews v. City of N.Y., 889 F. Supp. 2d 418, 425 (E.D.N.Y. 2012); Alkhatib v. New York Motor Group, LLC, No. CV 13-2337, 2015 WL 3507340, at *7 (E.D.N.Y. June 3, 2015) (quoting Mendez v. U.S. Nonwovens Corp., 2 F. Supp. 3d 442, 451 (E.D.N.Y. 2014)) (noting that the court "is required to accept the material facts alleged in the amended [pleading] as true and draw reasonable inferences in the [movant's] favor").

Plaintiff, an individual residing in the State of New York, is a "consumer" as that term is defined by the FDCPA since he is "allegedly obligated to pay a debt." Am. Compl. ¶¶ 5-6.² Defendant, an entity with its principal place of business in Houston, Texas, is a "debt collector" within the meaning of the FDCPA since it is primarily engaged in "a business the principal purpose of which is the collection of debts" and because it "uses an instrumentality of interstate commerce or the mails" in order to engage in the direct or indirect collection of debts. Id. ¶¶ 7-9.³ At some point prior to the filing of the instant action, Plaintiff incurred a debt that wasprimarily for "personal, family or household purposes." Id. ¶ 10. Thereafter, Plaintiff was deemed to have defaulted and the debt was "assigned or otherwise transferred to Defendant for collection." Id. ¶ 11-12. As part of its efforts to collect the debt, Defendant sent Plaintiff a letter on October 2, 2015. Id. ¶ 13, Ex. 1 (October 2, 2015 Collection Letter). Plaintiff asserts that Defendant's letter violated the FDCPA in certain respects. Id. ¶ 15. Specifically, Counts One, Three and Four allege violations of 15 U.S.C. § 1692g, which requires that certain disclosures be provided to the debtor in the debt collector's initial communication, or within 5 days thereafter, see generally Am. Compl.; 15 U.S.C. § 1692g, while Counts Two and Five allege violations of 15 U.S.C. § 1692e, which prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of a debt. See generally Am. Compl.; 15 U.S.C. § 1692e. In addition, Count Six alleges that Plaintiff has stated a claim for actual damages. See Am. Compl. ¶¶ 118-127. Because each factual allegation is inextricably connected with each enumerated count, the Court will briefly summarize the salient facts contained in each count of the Amended Complaint.

Turning to Count One, Plaintiff asserts that Defendant's October 2, 2015 letter violated 15 U.S.C. § 1692g by failing to "clearly" and "explicitly" set forth "the name of the creditor to whom the debt is owed." Am. Compl. ¶¶ 18-24. Although the letter states "YOU OWE: SPRINT," Am. Compl., Ex. 1 (emphasis in original), Plaintiff states that he: (1) "is unaware of what the alleged debt represents;" (2) "does not owe 'Sprint;'" (3) "does not have an account with any entity named 'Sprint;'" (4) "never contracted with an entity named 'Sprint;'" and (5) does not owe any money to an entity named 'Sprint.'" Id. ¶¶ 25-40. In addition, Plaintiff claims that "there are more than one hundred (100) disparate entities registered in New York that begintheir legal name with 'Sprint'" and therefore "[t]he least sophisticated consumer would likely be confused as to which of the more than one hundred (100) disparate entities registered in New York that begin their legal name with 'Sprint' is the alleged creditor to whom the debt is owed." Id. ¶¶ 32-34. Therefore, because "Defendant failed to explicitly [and] clearly state the name of the creditor to whom the debt is owed," it violated 15 U.S.C. § 1692g. Id. ¶¶ 39-45.

With respect to Count Two, Plaintiff contends that the statement "YOU OWE: SPRINT," Am. Compl., Ex. 1 (emphasis in original), is "false" since "Plaintiff does not owe any money to an entity named 'Sprint'" and that "[t]he least sophisticated consumer would likely be deceived in a material way by Defendant's conduct." Id. ¶¶ 53-57. As such, Plaintiff states that the statement violates 15 U.S.C. § 1692e by using a "false, deceptive and misleading representation in its attempt to collect a debt." Id. ¶ 64. In addition, Plaintiff claims that "[b]ecause the collection letter . . . is reasonably susceptible to an inaccurate reading, as described in the First Count [of the Amended Complaint], it is deceptive within the meaning of 15 U.S.C. § 1692e." Id. ¶ 52.

As to Count Three, Plaintiff claims that the letter violated 15 U.S.C. § 1692g(a)(3) due to "Defendant's addition of the words 'AFTER YOUR RECEIPT OF GC SERVICES' INITIAL WRITTEN NOTICE TO YOU CONCERNING THIS DEBT,'" which "would lead the least sophisticated consumer to believe there was a prior initial written communication from Defendant." Id. ¶ 72. Specifically, Plaintiff claims that this statement, when read together with the surrounding language, would "confuse the least sophisticated consumer concerning the time frame to dispute the debt or seek validation of the debt" and would result in the "least sophisticated consumer [being] uncertain as to her rights." Id. ¶¶ 73-77. As such, "Defendanthas violated § 1692g as the above-referenced language overshadows the information required to be provided by that Section." Id. ¶ 83.

Turning to Count Four, Plaintiff alleges that although the letter states there is a "Balance Due of $807.04," Am. Compl., Ex. 1, Defendant has run afoul of 15 U.S.C. § 1692g(a)(1) by failing to convey the amount of the debt clearly — because the letter "fails to disclose whether the balance may increase due to interest and fees." Am. Compl. ¶¶ 84-89, 104. Specifically, Plaintiff claims that "[t]he least sophisticated consumer would be confused as to how she could satisfy the debt" since a consumer "might believe she could pay the debt in full by remitting the sum stated in the letter at any time after she received the letter" but that "such a belief may or may not be correct, as Defendant has failed to disclose whether the balance may increase due to interest and fees." Id. ¶¶ 90-92. In light of this alleged ambiguity, Plaintiff contends that "Defendant has violated § 1692g as it failed to clearly, explicitly and unambiguously convey the amount of the debt." Id. ¶ 105.

Similarly, Count Five alleges that the manner in which the letter sets forth the amount of the debt also violates § 1692e because "Defendant's letter [ ] fails to disclose whether the balance may increase due to interest and fees" and therefore "[t]he least sophisticated consumer would likely be deceived by Defendant's conduct." Id. ¶¶ 106-114. Consequently, Plaintiff claims that "Defendant has violated § 1692e by using a false, deceptive and misleading representation in its attempt to collect a debt." Id. ¶ 117.

Finally, in Count Six, Plaintiff appears to be claiming actual damages based upon his assertions that Defendant's actions caused him to: (1) "be distracted from his work;" (2) "lose time at work;" (3) "waste time;" and (4) "fight with his wife." Id. ¶¶ 118-127.

B. Relevant Procedural History

Plaintiff instituted this action on December 23, 2015 by filing a Complaint. DE 1. A summons was issued to Defendant on January 5, 2016 and it was returned executed on January 14, 2016. DE 6. Thereafter, on February 4, 2016, Defendant filed its Answer. DE 9. On February 17, 2016, Defendant amended its Answer. DE 12. Subsequently, on June 1, 2016, the Court held an Initial Conference during which it noted that Plaintiff sought leave to file an Amended Complaint and directed the parties as follows:

The May 25, 2016 letter motion to Judge Hurley seeking a pre-motion conference [DE 24] for purposes of leave to file a First Amended Complaint is deemed MOOT. In cases that are assigned to Judge Hurley, the assigned Magistrate Judges handle motions to amend. Based on today's discussion, the Court directed plaintiff's counsel to provide defendant's counsel with a copy of the proposed First Amended Complaint by June 13, 2016. Defendant's counsel will then have until June 20, 2016 to review the amended pleading and to communicate with plaintiff's counsel whether the defendant can consent to the amended pleading. If so, the parties are directed to file an appropriate Stipulation on ECF embodying their agreement by June 24, 2016.

If the defendant is unable to consent, then the Court has set the following briefing schedule in consultation with the parties:

• Plaintiff's opening papers and memorandum of law must be served and filed by July 8, 2016;

• Defendant's opposition papers and memorandum of law have to be served and filed by July 18, 2016;

• Plaintiff's reply papers, if any, must be served and filed by July 25, 2016.

DE 27. On July 7, 2016, Plaintiff filed the instant motion seeking to amend the Complaint. DE 31-33. On July 18, 2016, Defendant filed its opposition [DE 36] and on ...