Larsen v. Jbc Legal Group, P.C.

• Decision Date: 12 February 2008
• Docket Number: No. CV 04-4409 (ETB).,CV 04-4409 (ETB).
• Citation: 533 F.Supp.2d 290
• Parties: Kimberly LARSEN f/k/a Kimberly Kaiser, on behalf of herself and all others similarly situated, Plaintiffs, v. JBC LEGAL GROUP, P.C. f/k/a JBC & Associates, P.C., JBC Legal Group, P.C. f/k/a JBC Associates, Inc., JBC & Associates, P.C., JBC Associates, Inc., Jack Boyajian, Mary Brandon a/k/a Marvin Brandon, and Outsource Recovery Management, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

533 F.Supp.2d 290

Kimberly LARSEN f/k/a Kimberly Kaiser, on behalf of herself and all others similarly situated, Plaintiffs, v. JBC LEGAL GROUP, P.C. f/k/a JBC & Associates, P.C., JBC Legal Group, P.C. f/k/a JBC Associates, Inc., JBC & Associates, P.C., JBC Associates, Inc., Jack Boyajian, Mary Brandon a/k/a Marvin Brandon, and Outsource Recovery Management, Inc., Defendants.

No. CV 04-4409 (ETB).

United States District Court, E.D. New York.

February 12, 2008.

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Brian L. Bromberg, Bromberg Law Office, P.C., New York City, Joseph Mauro, Law Office of Joseph Mauro, LLC, West Islip, NY, Lance A. Raphael, Stacy M. Bardo, Consumer Law Center, P.C., Chicago, IL, for Plaintiffs.

JBC Legal Group, P.C., Jack Boyajian, Mary Brandon, Outsource Recovery Management, Inc., pro se.

MEMORANDUM OPINION AND ORDER

E. THOMAS BOYLE, United States Magistrate Judge.

Plaintiff, Kimberly Larsen ("Larsen"), brings this action' pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., seeking statutory damages, attorney's fees and costs. Plaintiff alleges that defendants, JBC Legal Group, P.C., formerly known as JBC & Associates, P.C. ("JBC"), Jack Boyajian ("Boyajian"), Mary Brandon, also known as, Marvin Brandon ("Brandon"), and Outsource Recovery Management, Inc. ("ORM"), violated the FDCPA when they attempted to collect a debt from her in 2003. Before the court is the plaintiff's motion for partial summary judgment against all defendants. For the following reasons, plaintiff's motion is granted in part and denied in part.

PROCEDURAL HISTORY

This action was commenced by the filing of a Complaint against all defendants except ORM on October 13, 2004. An Amended Complaint was then filed on December 7, 2004. All of the then-named defendants submitted an Answer on December 30, 2004.

On August 5, 2005, plaintiff filed a Second Amended Complaint against all of the previously named defendants plus ORM, JBC, Boyajian and Brandon submitted a joint Answer on September 7, 2005. ORM filed its Answer on that same date as well.

Although plaintiff initially sought to bring this action on behalf of all others similarly situated and moved for class certification on December 20, 2006, that motion was subsequently withdrawn, without prejudice, on April 10, 2007, at the request of the plaintiff, and not renewed. Accordingly, the within summary judgment motion is brought solely on behalf of plaintiff.

By Order dated May 3, 2007, the Court directed that any dispositive motions be made on or before July 2, 2007. Any opposition was to be filed by August 31, 2007 and a reply, if any, was to be submitted by September 10, 2007. (Order of Boyle, J., dated May 3, 2007.) After granting plaintiffs requests for extensions on two occasions, the within motion was ultimately filed on July 11, 2007. Opposition was received from defendant Brandon, apparently acting pro se, on September 4, 2007, which the Court notes is four days beyond the deadline for submitting any opposition and is deficient in many respects. Although Brandon submitted what purports to be a Rule 56.1 counter-statement, his submission does not comport with the requirements of the local civil rules.

Local Civil Rule 56.1(c) states that "unless specifically controverted by a correspondingly numbered paragraph in the statement [of material facts] required to be served by the opposing party," the material facts set forth in the moving party's Rule 56.1 statement "will be deemed to be admitted for purposes of the [summary judgment] motion." Local Civ. R. 56.1(c). Moreover, Local Civil Rule 56.1(d) unambiguously requires that "[e]ach statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." Local Civ. R. 56.1(d). Brandon has failed to comply with either of these requirements. Rather, the majority of Brandon's Rule 56.1 statement simply contains responses that plaintiffs statements of material fact are "[i]rrelevant" and that they "[d]o[] not relate to liability as against Mary Brandon."¹ (Brandon's Rule 56.1 Stmt. ¶¶ 1-8, 11-76.) Nothing in Brandon's Rule 56.1 statement can be construed as a statement of material fact. Moreover, Brandon has failed to include any evidentiary citations in his Rule 56.1 statement, as required by Rule 56.1(d). As a result of this omission, Brandon's Rule 56.1 statement is wholly inadequate and "must be disregarded."² Fernandez v. DeLeno, 71 F.Supp.2d 224, 227 (S.D.N.Y.1999); (citing Titan Indent. Co. v. Triborough Bridge & Tunnel Auth., Inc., 135 F.3d 831, 835 (2d Cir.1998)); see also Cooper v. Gottlieb, No. 95 Civ. 10548, 2000 WL 1277593, at *4, 2000 U.S. Dist. LEXIS 12936, at *12-13 (S.D.N.Y. Sept. 4, 2000) (deeming the statements contained invents' Rule 56.1 statement admitted where non-movants failed to cite to nor submit any evidentiary support for the statements in their Rule 56.1 statement in opposition to motion for summary judgment).

With respect to the remaining defendants, no opposition to the within motion has been received whatsoever. Accordingly, since JBC, Boyajian and ORM have failed to file any opposition, and more specifically have failed to comply with Local Civil Rule 56.1(b), which requires the submission of a counter-statement of "material facts" in opposition to a motion for summary judgment, see Local Civ. Rule 56.1, all of the facts in plaintiffs Rule 56.1 Statement that pertain to JBC, Boyajian and ORM are deemed admitted. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003) ("If the opposing party ... fails to controvert a fact so set forth in the moving party's. Rule 56.1 statement, that fact will be deemed admitted.") (citing Local Rule 56.1(c)). "[W]here a party against whom summary judgment is sought fails entirely to respond to the motion, the court need ensure only that the averments in the movant's Rule 56.1 statement are supported by evidence and show an absence of a genuine issue for trial." Morisseau v. Piper, No. 06 Civ. 13255, 532 P.Supp.2d 595, 618, 2008 WL 273410, at *18, 2008 U.S. Dist. LEXIS 4699, at *60 (S.D.N.Y. Jan. 23, 2008) (citing Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 243 (2d Cir.2004)) (additional citation omitted).

FACTS

Plaintiff, Kimberly Larsen, is a consumer within the, meaning of the FDCPA, who allegedly owes a debt that is the subject of collection efforts. (Pl. 56.1 Stmt. ¶ 1; Decl. of Kimberly Larsen, dated July 9, 2007 ("Larsen Decl."), ¶ 1.) Defendant JBC Legal Group, P.C., formerly known as JBC & Associates, P.C.,³ is a debt collector incorporated in California, with, a place of business located at 2 Broad Street in Bloomfield, New Jersey. (Pl. 56.1 Stmt. ¶¶ 2-3, 21; Reply Decl. of Brian L. Bromberg, dated Sept. 20, 2007 ("Bromberg Reply Decl."), Ex. A.) Defendant' Boyajian, an attorney licensed to practice in' California, was the President and owner of JBC & Associates, P.C.⁴ (Id ¶ 50.) Boyajian is also the President and Secretary of JBC Legal Group, P.C. — and, presumably, its owner as well since he owned its predecessor entity — and is, at various times, personally involved in JBC's collection process, including reviewing new claims and cases, establishing procedures for debtor contact and verification, responding to complaints and inquiries, managing litigation brought to collect debts, overseeing and managing the operations of JBC"s Compliance Department, supervising paralegal and office staff and "dealing with unique issues that arise." (Id. ¶ 7-8; Bromberg Reply Decl., Ex. A.) Defendant Brandon is an attorney licensed to practice in New York and New Jersey who was employed by JBC & Associates, P.C. and appears to currently be in business with defendant Boyajian.⁵ (Pl. 56.1 Stint ¶¶ 9 12; Brandon's 56.1 Stmt. ¶ 9; Decl. of Brian L. Bromberg, dated July 11, 2007 ("Bromberg Decl."), Ex. EE; Bromberg Reply Decl., Ex. A.)

On or about October 24, 2003, defendant JBC Legal. Group, P.C. sent or caused to be sent a letter to plaintiff, seeking to collect a debt alleged to be owed by plaintiff in the amount of $43.87 (the "debt collection notice"). (Pl. 56.1 Stmt., ¶ 21; Compl. ¶ 28; Larsen Decl., ¶ 3 and Ex. A, annexed thereto.) Boyajian was an officer of JBC Legal Group, P.C. at this time. (Pl. 56.1 Stmt. ¶ 6.) The debt collection notice stated that it sought payment for an alleged "bad check," purported to be have been written by plaintiff on a Chase Manhattan checking account on April 14, 1993, in the amount of $23.87.⁶ (Larsen Decl., ¶ 3 and Ex. A.) This was the first communication that plaintiff received from JBC.⁷ (PI. 56.1 Stmt., ¶ 22; Larsen Decl., ¶ 3.)

The debt reflected in the October 24, 2003 debt collection notice is allegedly due to defendant ORM, which claims to have acquired the debt in or about October 2003. (Pl. 56.1 Stmt. ¶ 33.) The business of ORM is to purchase debts that are in default from other entities. (Id. ¶ 37.) Boyajian is the president and director of ORM and ORM's address is the same as that of JBC Legal Group, P.C. (Id. ¶¶ 34-36.) ORM retained JBC to collect the alleged debt from plaintiff. (Id. ¶ 38.) ORM uses JBC exclusively as the collector on the debts that it purchases. (Id. ¶ 39.)

Although the October 24, 2003 debt collection notice that plaintiff received stated that failure to satisfy the debt may result in legal action being taken against her, no such litigation was in fact commenced. (Larsen Decl., ¶ 7 and Ex. A; Pl. 56.1 Stmt., ¶ 25.) Plaintiff' has not paid the amount alleged to be owed by her in the October 24, 2003 letter. (Pl. 56.1 Stmt., ¶ 24.)

Defendant Boyajian is the individual responsible within JBC for reviewing the accounts and deciding whether to send letters such as the October 24,...