Marisco v. NCO Fin. Sys., Inc.

• Decision Date: 23 May 2013
• Docket Number: No. 12–CV–06220 (ADS)(WDW).,12–CV–06220 (ADS)(WDW).
• Citation: 946 F.Supp.2d 287
• Parties: Paul MARISCO, Plaintiff, v. NCO FINANCIAL SYSTEMS, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

946 F.Supp.2d 287

Paul MARISCO, Plaintiff,

v.NCO FINANCIAL SYSTEMS, INC., Defendant.

No. 12–CV–06220 (ADS)(WDW).

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

May 23, 2013.

The Law Office of Joseph Mauro, LLC, by Joseph Mauro, Esq., Of Counsel, West Islip, NY, for the Plaintiff.

Sessions Fishman Nathan Israel LLC, by Aaron R. Easley, Esq., Of Counsel, Flemington, NJ, for the Defendant.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On January 28, 2013, the plaintiff Paul Marisco (“the Plaintiff” or “Marisco”) filed an amended complaint against the Defendant NCO Financial Systems, Inc. (“the Defendant” or “NCO”), a debt collection agency, alleging a violation of the Plaintiff's privacy rights under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692c(b)et seq. (“FDCPA”). Presently pending before the Court is a motion by the Defendant to dismiss the amended complaint in its entirety pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, the motion to dismiss is denied.

I. BACKGROUND

A. Factual Background

The following facts are drawn from the Amended Complaint and construed in a light most favorable to the Plaintiff.

The Plaintiff, a consumer as defined by the FDCPA, allegedly owes a debt to the Defendant. To notify the Plaintiff about the disputed debt, the Defendant repeatedly left the following pre-recorded message on an answering machine in the Plaintiff's residence:

This is an important message from NCO Financial Systems, Inc. The law requires that we notify that this is a debt collection company. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please call Mack Harris today at 800–883–0613. Once again that number is 800–883–0613. Thank you.

(Amended Complaint ¶ 16.) According to the Plaintiff, “the Defendant was aware that there was a possibility that people other than the Plaintiff may be located within listening distance of the answering machine on which they intended to leave a message” ( Id. ¶ 12.) The Plaintiff did not consent to the Defendant's leaving a message on his answering machine.

On at least one occasion, the Defendant left the above-quoted pre-recorded message on the Plaintiff's answering machine while the Plaintiff's mother-in-law was in the same room. She heard the message. The Plaintiff alleges that his “mother[-]in[-]law was aware that the message was intended for the Plaintiff as there was nobody other than the Plaintiff at that location that could have owed the alleged debt” ( Id. ¶ 17.) The Plaintiffs asserts that, in leaving the message this way, the Defendant invaded the Plaintiff's privacy rights accorded by the FDCPA and embarrassed and humiliated the Plaintiff in front of his mother-in-law.

B. Procedural History

On December 18, 2012, the Plaintiff commenced the instant action, asserting a single cause of action for violation of the provisions of 15 U.S.C. § 1692c(b) of the FDCPA. Thereafter, the Defendant moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The Plaintiff subsequently filed an amended complaint. The Defendant then filed a motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). That motion is currently pending before the Court.

II. DISCUSSION

A. Legal Standard for Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles. SeeHarris v. Mills, 572 F.3d 66 (2d Cir.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

“First, although ‘a court must accept as true all of the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). “ ‘Second, only a complaint that states a plausible claim for relief survives a motion to dismiss and ‘[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’' Id. (quoting Iqbal, 556 U.S. at 663–64, 129 S.Ct. 1937). Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and ... determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

In considering a motion to dismiss, this Court accepts as true the factual allegations set forth in the complaint and draws all reasonable inferences in the Plaintiff's favor. See Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). Only if this Court is satisfied that “the complaint cannot state any set of facts that would entitle the plaintiff to relief” will it grant dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.1993). The issue on a motion to dismiss is “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

B. The Parties' Arguments

In general terms, the Defendant contends that the Plaintiff's claim fails as a matter of law because 15 U.S.C. § 1692c(b) proscribes only the deliberate disclosure of a consumer's debt to third parties, not the inadvertent disclosure of the type alleged to have occurred here. In opposition, the Plaintiff contends that the plain terms of the statute dictate otherwise and notes that the FDCPA is generally a strict liability statute. In any event, the Plaintiff insists that he has sufficiently plead that the Defendant knowingly communicated with a third party about his debt in violation of the FDCPA. In reply, the Defendant argues that strict liability exists under 15 U.S.C. § 1692c(b) only after the Plaintiff establishes a predicate violation of the provision—that is, an impermissible communication to a third party about the debt. The Defendant further asserts that a communication to a third party encompasses only intentional communications not of the type alleged here and, in any event, the subject communications did not concern a debt.

C. Statutory Background

In construing a statute, the Court begins with the plain language, giving all undefined terms their ordinary meaning. See Schindler Elevator Corp. v. United States ex rel. Kirk, ––– U.S. ––––, 131 S.Ct. 1885, 1891, 179 L.Ed.2d 825 (2011); United States v. Desposito, 704 F.3d 221, 226 (2d Cir.2013); 23–34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health, 685 F.3d 174, 182 (2d Cir.2012). In interpreting a statute, the “inquiry must cease if the statutory language is unambiguous.” See Schindler Elevator Corp., 131 S.Ct. at 1893. Courts “must presume that the statute says what it means.” Devine v. U.S., 202 F.3d 547, 551 (2d Cir.2000). However, in interpreting a statute, courts are not to “construe each phrase literally or in isolation.” Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir.2009). The Court must “attempt to ascertain how a reasonable reader would understand the statutory text, considered as a whole.” Id. If the text is ambiguous, the Court will look to legislative history and other tools of statutory interpretation. See Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 143–44 (2d Cir.2002).

Relevant here, Congress enacted the FDCPA “to protect consumers from deceptive or harassing actions taken by debt collectors[,]” Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir.2002), with the purpose of “limiting the suffering and anguish often inflicted by independent debt collectors,” Russell v. Equifax A.R.S., 74 F.3d 30, 34 (2d Cir.1996) (internal quotation marks omitted). Section 1692c(b) of the FDCPA prohibits debt collectors communicating with third parties from revealing that the consumer owes a debt:

“Communications with third parties. Except as provided in section 804 [15 U.S.C. 1692b], without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.”

15 U.S.C. § 1692c(b). However, third-party communications are permitted for the limited purpose of determining a debtor's location but the content of these communications is strictly defined, and the debt collector cannot disclose that the debtor owes any debt. 15 U.S.C. § 1692b(2).

The definition of communications in the FDCPA is “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C.

§ 1692a(2). Courts generally consider, and the parties do not dispute, that pre-recorded messages and voice mail messages from debt collectors are “communications,” even if the messages do not state what the calls are regarding. See e.g.,Dona v. Midland Credit Mgmt., Inc., No. 10 CV 825, 2011 WL 941204, at *1 (E.D.N.Y. Feb. 10, 2011) (stating that “ ‘[c]ommunications under the [FDCPA] include telephone calls and...