Kloth v. Citibank (South Dakota), N.A.

• Decision Date: 22 September 1998
• Docket Number: No. CIV. 3:97CV358 AHN.,CIV. 3:97CV358 AHN.
• Citation: 33 F.Supp.2d 115
• Parties: Joan T. KLOTH v. CITIBANK (SOUTH DAKOTA), N.A.
• Court: U.S. District Court — District of Connecticut

33 F.Supp.2d 115

Joan T. KLOTH v. CITIBANK (SOUTH DAKOTA), N.A.

No. CIV. 3:97CV358 AHN.

United States District Court, D. Connecticut.

September 22, 1998.

COPYRIGHT MATERIAL OMITTED

Joan T. Kloth, Ridgefield, CT, pro se.

Steven M. Greenspan, Christine Shaw, Day, Berry & Howard, Hartford, CT, for Citibank (South Dakota) N.A.

RULING ON DEFENDANT'S MOTION TO DISMISS

FITZSIMMONS, United States Magistrate Judge.

Defendant moves to dismiss plaintiff's Amended Complaint dated August 26, 1997, alleging various state and federal causes of action arising out of defendant's efforts to collect a credit card debt. Plaintiff has filed this action pro se, and, as the Second Circuit directs, when considering the sufficiency of a pro se complaint, this Court "must construe it liberally, applying less stringent standards than when a plaintiff is represented by counsel." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) [citing, Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam)]; Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir.1996). For the reasons that follow, the Motion to Dismiss [Doc. # 28] is GRANTED.¹

STANDARD

When considering a Rule 12(b)(6) motion to dismiss, the court is required to accept as true all factual allegations in the complaint and draw inferences from these allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Dismissal is warranted only if, under any set of facts that the plaintiff can prove consistent with the allegations, it is clear that no relief can be granted. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Frasier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991); Still v. DeBuono, 101 F.3d 888, 891 (2d Cir.1996). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims." United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. 1683). In deciding such a motion, consideration is limited to the facts stated in the complaint or in documents attached thereto as exhibits or incorporated therein by reference. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991).

BACKGROUND FACTS

Plaintiff filed a state court action on February 25, 1997, seeking one million dollars in damages for defendant's alleged violation of federal and state laws in collecting a credit card debt. The case was removed to federal court on March 3, 1997. [Doc. # 1]. Defendant filed a Motion for More Definite Statement on March 19, 1997. [Doc. # 5]. At a hearing on July 1, 1997, the Court granted defendant's motion without prejudice and ordered plaintiff to file an amended complaint on or before August 1, 1997. [Doc. # 19]. Plaintiff filed a Motion for Leave to File an Amended Complaint [Doc. # 23] on August 26, 1997. On September 12, 1997 during a telephone conference call, the Court ordered that any motions directed to the complaint be filed on or before October 17, 1997, with responses due on or before November 7, 1997. [Doc. # 27]. Defendant filed a Motion to Dismiss on October 24, 1997.²

FACTS³

Citibank harassed plaintiff with collection agencies, "sometimes three at a time." [Doc. # 23 ¶ 1]. Plaintiff contacted defendant in writing and by telephone to explain "that the charges in question on the plaintiff's credit card where [sic] part of a negligence case against the merchant in New Jersey." Id. "[D]efendant repeatedly ignored plaintiff's requests to have the charges put on hold until the pending negligence case was resolved." Id. Defendant's "libelous behavior... made obtaining housing for the plaintiff and her daughter impossible" and "prevented her from obtaining additional credit assistance, loans and other such aid which uses credit reports as information bases." Id.

In Count Two, plaintiff alleges defendant discriminated against her "by being rude and hanging up on her because her hearing problems cause [her] to speak loudly and prevent her from having control of the volume level of her voice." Id. at ¶ 2. By hanging up on plaintiff, "defendant refused to listen or work with or even acknowledge plaintiff's concerns or complaints or issues." Id.

Finally, in Count Three, plaintiff claims that the "defendant's ... behavior both in harassing the plaintiff with collection agencies and discrimination prevent[ed] the plaintiff and her family from obtaining a roof over their heads for over a year, caused undo stress and emotional damages and violated her rights...." Id.

Plaintiff alleges that defendant: (1) libeled, slandered and defamed plaintiff by ruining her credit, pursuant to Conn. Gen.Stat. §§ 52-237 (damages in actions for libel), and 52-238 (damages in actions on penal bonds)⁴; (2) violated the Fair Debt Collection Practices Act; (3) violated the Fair Credit and Charge Card Disclosure Act; (4) violated her Equal Protection rights under the Fourteenth Amendment to the United States Constitution; (5) violated the Connecticut Constitution, Art. I, Sec. 20, Art. III, Sec. 15-1-6 and Art. XXI; (6) violated Conn. Gen.Stat. §§ 46a-56, 46a-66 (Discriminatory Credit Practices); (7) violated the Americans with Disabilities Act; (8) violated the Federal Equal Credit Opportunity Act; and (9) violated the Fair Housing Act.

While a complaint must be liberally construed, Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995), a pro se party's status does not relieve her of the burden of alleging sufficient facts on which a recognized legal claim could be based, Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996). Bald assertions and conclusions of law will not suffice. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996) (citations omitted).

DISCUSSION

A. Fair Debt Collection Practices Act

The FDCPA prohibits abusive debt collection practices by "debt collectors." Debt collectors include "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.A. § 1692a(6). Defendant argues that Citicorp, a creditor, is not subject to the Act.

"Generally, the FDCPA does not apply to creditors." See Young v. Citicorp Retail Services, Inc., No. CIV. 3:95CV1504, 1997 WL 280508, at *4 (D.Conn. May 19, 1997), aff'd, 159 F.3d 1349, 1998 WL 537530 (2d Cir. June 29, 1998); Harrison v. NBD, Inc., 968 F.Supp. 837, 841 (E.D.N.Y.1997) (citing cases). "A creditor may nevertheless be subject to the Act if, in the process of collecting its own debts, it uses any name other than its own which would indicate that a third person is collecting or attempting to collect such debts." Id. (citation omitted). Citibank contends, and the Court finds, that it is not a "debt collector" under the FDCPA as a matter of law.

Citibank is not a "debt collector" under the FDCPA merely because it retains a collection agency to collect its debts. Nowhere in the Amended Complaint is it alleged that Citibank used "any name other than its own which would indicate that a third person is collecting or attempting to collect such debts." 15 U.S.C. § 1692a(6). "Clearly, a creditor which retains a non-affiliated debt collector would not be subject to the FDPCA" Harrison, 968 F.Supp. at 843. The Amended Complaint does not impute liability to Citibank under the FDPCA by naming the three collection agencies that allegedly contacted plaintiff. "[N]or is this Court aware of any cases wherein a creditor that "approves" of a debt collector's practices is transformed into a "debt collector" under the FDCPA." Id.

Accordingly the motion to dismiss plaintiff's FDPCA claim is GRANTED as a matter of law.

1. Fair Credit and Charge Card Disclosure Act

Section 1601(a) of the Fair Credit and Charge Card Disclosure Act⁵ states in relevant part that, "[i]t is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S.C. § 1601(a). Defendant argues, and the Court finds, that plaintiff "fails to allege any set of facts which would support a claim under the Fair Credit and Charge Card Disclosure Act." Plaintiff fails to cite any statutory provision under which she makes her claim. Accordingly, the motion to dismiss plaintiff's Fair Credit and Charge Card Disclosure Act claim is GRANTED as a matter of law.

2. United States and Connecticut Constitutional Claims

The motion to dismiss is also granted to the extent that plaintiff brings any claims under the United States Constitution and Connecticut Constitution.⁶

A claim for relief under the United States Constitution for violation of a person's civil rights is properly brought pursuant to 42 U.S.C. § 1983. Under Section 1983 of the Civil Rights Act, the plaintiff must allege that a person acting under color of state law has deprived her of a constitutionally or federally protected right. Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986). Section 1983 does not guarantee civil rights between private individuals; therefore, purely private conduct is not redressable under § 1983. Shirley v. State National Bank of Connecticut, 493 F.2d 739, 741 (2d Cir.), cert. denied, 419 U.S. 1009, 95 S.Ct. 329, 42 L.Ed.2d 284 (1974).

In order for a plaintiff to plead a cause of action against private parties under 42 U.S.C. §...