Hamlett v. Santander Consumer USA Inc.

• Decision Date: 19 March 2013
• Docket Number: No. 11–CV–6106 (JFB) (GRB).,11–CV–6106 (JFB) (GRB).
• Citation: 931 F.Supp.2d 451
• Parties: Joyce HAMLETT and Letricia Hamlett, Plaintiffs, v. SANTANDER CONSUMER USA INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

931 F.Supp.2d 451

Joyce HAMLETT and Letricia Hamlett, Plaintiffs,

v.SANTANDER CONSUMER USA INC., et al., Defendants.

No. 11–CV–6106 (JFB) (GRB).

United States District Court,

E.D. New York.

March 19, 2013.

Joyce Hamlett, Hempstead, NY, pro se.

Letricia Hamlett, Hempstead, NY, pro se.

Brian Scott Goldberg, Casey D. Laffey, Daniel Aaron Schleifstein, Reed Smith LLP, New York, NY, for Defendants.

ORDER

JOSEPH F. BIANCO, District Judge:

Pro se plaintiffs Joyce Hamlett and Letricia Hamlett (“plaintiffs”) filed a complaint against Santander Consumer USA, Inc. (“Santander”), HSBC Auto Finance, and HSBC Auto Credit, Inc. (collectively, “defendants”) on December 15, 2011. On March 12, 2012, plaintiffs filed an amended complaint.

On April 30, 2012, defendants filed a motion to dismiss the amended complaint. Plaintiffs filed an affidavit in opposition to defendants' motion to dismiss on May 30, 2012, and defendants filed a reply in further support of their motion on June 13, 2012. By Order dated October 26, 2012, the Court referred the motion to dismiss to Magistrate Judge Brown for a Report and Recommendation.

On February 18, 2013, Magistrate Judge Brown issued a Report and Recommendation (the “R & R”), recommending that defendants' motion to dismiss be granted with respect to plaintiffs' claims for invasion of privacy by intrusion upon seclusion, and denied with respect to plaintiffs' FDCPA, TCPA, and reckless or intentional infliction of emotional distress claims. The R & R further instructed that any objections to the R & R be submitted within fourteen (14) days of service of the R & R. ( See Report and Recommendation dated Feb. 18, 2013, at 457–58.) As indicated by the docket sheet, a copy of the R & R was mailed to plaintiff by Magistrate Judge Brown's Chambers on February 18, 2013. ( See ECF No. 24.) By later dated February 25, 2013, counsel for defendants requested an extension of time to file objections to the R & R. By Order dated February 26, 2013, the Court granted counsel for defendants' request, allowing defendants to object no later than March 15, 2013. On March 14, 2013, counsel for defendants filed a letter with the Court, indicating that though the defendants disagree with the R & R, they would not be filing a formal objection to the R & R. No formal objections have been filed to date, although the date for filing any objections has expired.

A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y.1988). As to those portions of a report to which no “specific written objections” are made, the Court may accept the findings contained therein, as long as the factual and legal bases supporting the findings are not clearly erroneous. SeeFed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997).

Having conducted a review of the full record and the applicable law, and having reviewed the R & R for clear error, the Court adopts the findings and recommendations contained in the well-reasoned and thorough R & R in their entirety. Even under a de novo standard, the Court adopts the R & R in its entirety. Accordingly, IT IS HEREBY ORDERED that defendants' motion to dismiss the amended complaint is granted with respect to plaintiffs' claims for invasion of privacy by intrusion upon seclusion, and denied with respect to plaintiffs' FDCPA, TCPA, and reckless or intentional infliction of emotional distress claims.

SO ORDERED.

REPORT AND RECOMMENDATION

GARY R. BROWN, United States Magistrate Judge:

Defendants Santander Consumer USA, Inc. (“Santander”), HSBC Auto Finance and HSBC Auto Credit, Inc. (collectively “defendants”) move to dismiss this action brought by Joyce Hamlett and Letricia Hamlet, pro se plaintiffs (“plaintiffs”), seeking recovery for allegedly abusive debt collection practices by the defendants generally and, in particular by Santander. Because defendants' principal argument—to wit: that Santander was not a “debt collector” as it had acquired plaintiffs' debt from HSBC—is easily dispatched at this juncture because, among other things, Santander apparently sent plaintiffs a communication identifying itself as a debt collector—the motion should be denied in large part. At the same time, defendants have identified one claim which cannot be established under applicable law, which should be dismissed.

PROCEDURAL HISTORY

Plaintiffs commenced this action against defendants by the filing of a Complaint on December 15, 2011. Complaint (“Compl.”), DE [1]. On April 30, 2012, defendants filed the instant motion to dismiss for failure to state a claim. By Order dated October 26, 2012, this motion was referred to the undersigned for Report and Recommendation by the Honorable Joseph F. Bianco.

FACTUAL BACKGROUND

The Amended Complaint

In a detailed amended complaint, supported by numerous attachments, the plaintiffs allege, in relevant part, as follows:

Plaintiff Joyce Hamlett secured an automobile refinance loan of less than $15,000 with HSBC in or around 2008, which went into default in or around 2010. Amended Complaint (“Am. Compl.”), ¶¶ 11–24, DE [17]. Subsequent to the default, that debt was sold to Santander. Id. ¶ 12. A number of disputes followed concerning the amount owed. Id. ¶¶ 17–28. Plaintiff continued to make some payments on the loan through early 2011. Id. ¶ 26.

From December 2010 through November 2011, in an effort to compel Joyce Hamlett to pay, Santander made ten to fifteen calls to each plaintiff using an automated telephone dialing system, seven days a week. Id. ¶¶ 29–31. Plaintiffs allege that Santander made 9,500 automated calls to the plaintiffs, often leaving mechanical voice mail messages. Id. ¶ 34. Plaintiffs allege that some of these messages contained false threats, including the prospect of arrest. Id. ¶ 34 (“A warrant will be issued for your arrest once we report the vehicle as stolen”). The complaint catalogs efforts made by plaintiffs to bring this to an end—including retaining counsel and sending multiple cease and desist letters—but defendants continued. Id. ¶¶ 32–37.

The complaint also states that plaintiffs suffered emotional distress due to the “bombardment of calls” from Santander, including an “increase of psych meds” for plaintiff Letricia Hamlett who, notably, was not a party to the loan. ¶¶ 40–42.

Based on these allegations, plaintiffs seek relief for claims of (1) violations of the Fair Debt Collection Protection Act (“FDCPA”); (2) the Telephone Consumer Protection Act (“TCPA”); (3) invasion of privacy by intrusion upon seclusion and (4) intentional infliction of emotional distress. The instant motion followed.

DISCUSSION

Standard of Review

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

The Court must accept all factual allegations in the claims as true and draw all reasonable inferences in favor of the non-moving party. Matson v. Bd. of Educ. of N.Y., 631 F.3d 57, 63 (2d Cir.2011); see also Ruston v. Town Bd. for Skaneateles, 610 F.3d 55, 59 (2d Cir.2010) (“When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Put another way, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

When considering a dispositive motion made against pro se litigants, the Court is “mindful that a pro se party's pleadings must be ‘liberally construed’ in favor of that party and are held to ‘less stringent standards than formal pleadings drafted by lawyers.’ ” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). “We liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest.” Bertin v. United States, 478 F.3d 489 (2d Cir.2007) (construing return of property motion by pro se plaintiff) (internal citations omitted).

FDCPA Claims

Dubbing it a “big white elephant in the room” and a “singularly faulty premise” underlying the Amended Complaint, Defendants' Memorandum (“Defs. Memo.”) at 2, 8, DE [19–6], defendants predicate their effort to dismiss the FDCPA claims on the notion that Santander was not a “debt collector,” but rather made contractually-permissible efforts to collect a debt it owned. This argument is ostensibly premised on the language of the FDCPA, which defines a “debt collector” as:

any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

15 U.S.C....