Passiglia v. Northwell Health, Inc.

• Decision Date: 12 May 2017
• Docket Number: 16–CV–3611 (SJF)(ARL)
• Citation: 252 F.Supp.3d 129
• Parties: Cindy L. PASSIGLIA, f/k/a Cindy L. Hahn, individually and on behalf of all others similarly situated, Plaintiff, v. NORTHWELL HEALTH, INC., f/k/a North Shore–Long Island Jewish Health Care, Inc., North Shore University Hospital, Regional Claims Recovery Service, and Ingram & Associates LLC, Defendants.
• Court: U.S. District Court — Eastern District of New York

252 F.Supp.3d 129

Cindy L. PASSIGLIA, f/k/a Cindy L. Hahn, individually and on behalf of all others similarly situated, Plaintiff,

v.NORTHWELL HEALTH, INC., f/k/a North Shore–Long Island Jewish Health Care, Inc., North Shore University Hospital, Regional Claims Recovery Service, and Ingram & Associates LLC, Defendants.

16–CV–3611 (SJF)(ARL)

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

Filed May 12, 2017

Craig B. Sanders, Sanders Law, PLLC, David M. Barshay, Barshay Sanders, PLLC, Todd D. Muhlstock, The Muhlstock Law Firm PC, Garden City, NY, Mitchell L. Pashkin, Huntington, NY, for Plaintiff.

Arthur Sanders, Barron & Newburger, P.C., New City, NY, Michael D. Slodov, Sessions, Fishman, Nathan & Israel, L.L.C., Chagrin Falls, OH, for Defendants.

OPINION and ORDER

FEUERSTEIN, District Judge:

On or about June 29, 2016, plaintiff Cindy L. Passiglia, f/k/a Cindy L. Hahn ("plaintiff" or "Passiglia"), commenced this putative class action against defendants Northwell Health, Inc., f/k/a North Shore–Long Island Jewish Health Care, Inc. ("Northwell Health" or "NSLIJ"); North Shore University Hospital ("NSUH"); Regional Claims Recovery Service ("RCRS"); and Ingram & Associates LLC ("Ingram")¹ , and filed an amended complaint asserting claims seeking damages for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., and for common law fraud. Pending before the Court is Ingram's motion to dismiss, inter alia, plaintiff's common law fraud claims against it pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. For the reasons set forth below, Ingram's motion is granted to the extent set forth herein.

I. BACKGROUND

A. Factual Background²

Sometime after plaintiff incurred a debt for personal medical services, she "fell behind on payments allegedly owed on the alleged debt[,]" (Amended Complaint ["Am. Compl.], ¶¶ 17–18), and her "debt was assigned or otherwise transferred to RCRS and [Ingram] for collection." (Id., ¶ 19).

RCRS's initial communication to plaintiff was by letter dated July 1, 2015 ("the RCRS Letter"). (Am. Compl., ¶¶ 20–21 and Ex. 1). The detachable upper portion of the RCRS Letter, which was to be returned with payment of the debt, inter alia, (i) indicates that the "RCR File No." is 17672505 and the balance due is three hundred fourteen dollars ($314.00), (ii) contains a return address in Melville, New York; a remittance address in Boston, Massachusetts; a website address of www.regionalclaimsrecovery.com; and a serial number of "17672505 07012015 00031400 9," and (iii) provides an area for the recipient to provide credit card information as a form of payment. (Id., Ex. 1). Immediately below the detachable section, the RCRS Letter, inter alia, (i) indicates that the "Provider/Original Creditor" was Paans Medicine, the doctor was Sharmilee V. Shetty, MD, and the treatment date was April 14, 2015; and (ii) contains information about RCRS, including its name, that it is a division of NHLIJ, its aforementioned website, a toll-free number ending in –0302, a telephone number for those who speak Spanish, a fax number with the area code (631), a New York City Department of Consumer Affairs License Number of 0907774, and the phrase, "***WE'RE HERE TO HELP YOU***" in bold type. (Id.)

The body of the RCRS Letter provides:

"We have been asked to assist you in resolving your account as shown above.

You may be responsible for the balance due either because you do not have insurance coverage, or the treating physician does not participate in your insurance plan. It is your responsibility to know the terms and limits of your insurance coverage. Please refer to your explanation of benefits (EOB) or call your carrier if you have any questions regarding your obligation for the balance due.

Please make your check payable to Paans Medicine and include your account number on the check or complete and return the credit card information above.

You can also resolve your account by making a payment or providing new insurance information by calling toll free (xxx) xxx–0302 between the hours of 9:00 AM and 5:00 PM or by visiting our website at www.regionalclaimsrecovery.com. Voice mail messages left after hours will be returned the next business day.

Our goal is to help you conclude your account by

• processing available insurance benefits• establishing a repayment plan that fits within your budget

• offering financial assistance if you fall within certain guidelines

We encourage you to write, call or visit our website. Thank you."

(Am. Compl., Ex. 1). The bottom of the RCRS Letter contains, inter alia, a validation notice; the phrase, "[ ] Results through Cooperation and Respect for each other [,]" in italics; the statement, "North Shore–Long Island Jewish Health Care, Inc. is a part of the North Shore–Long Island Jewish Health System [;]" and the code, "1ONREGC011340." (Id.) (emphasis in original). The names "Regional Claims Recovery Service" or "regionalclaimsrecovery," or the initials "RCR," appear in the RCRS Letter nine (9) times, including in the website addresses and the letters in bold type in the "Results through Cooperation and Respect" phrase. (Id.)(emphasis in original).

Ingram subsequently contacted plaintiff by letter dated August 14, 2015 ("the Ingram Letter"). (Am. Compl., ¶¶ 22–23 and Ex. 2). The detachable upper portion of the Ingram Letter, which was to be returned with payment of the debt, inter alia, (i) similarly indicates that the "Ingram File Number" is 17672505 and the balance due is three hundred fourteen dollars ($314.00), and provides an area for the recipient to provide credit card information as a form of payment, but (ii) contains a return address in Franklin, Tennessee; a remittance address in Minneapolis, Minnesota; a website address of https://www.usapaymentexchange.com/iai3; and a serial number of "17672505 08142015 00031400 3." (Id., Ex. 2). Immediately below the detachable section, the Ingram Letter, inter alia, (i) also indicates that the "Provider/Original Creditor" was Paans Medicine, the doctor was Sharmilee V. Shetty, MD, and the treatment date was April 14, 2015, but (ii) contains information about Ingram, including its name and logo, a toll-free telephone number ending in –7679, a fax number with the area code (615), and a New York City Department of Consumer Affairs License Number of 1474471–DCA. Like the RCRS Letter, beneath the Ingram information is the phrase, "***WE'RE HERE TO HELP YOU***" in bold type. (Id.)

The body of the Ingram Letter provides:

"Sometimes mail gets misplaced and sometimes the timing is bad. We would still like to assist you in resolving your account.

We are required to tell you that this communication is from a debt collector and any information we obtain will be used to collect the debt.

We would certainly appreciate receiving your check or money order payable to: Paans Medicine, or take a moment to complete the following and return the letter to our office, in the enclosed envelope, so that we can promptly review your account and take the appropriate action.

[Options are given to enclose payment; to authorize a credit card charge for the balance designated on the letter; or to provide proof of prior payment, an explanation for non-payment, or a telephone number and "best time to call" in order to receive a telephone call to discuss the account.]

If you still believe that you have insurance coverage for the treatment above, we suggest you contact your carrier and find out what is delaying payment of your claim. After contacting your carrier, either call our office or visit our website to provide the insurance information needed to process your account.

Thank you for your cooperation."

(Am. Compl., Ex. 2). The bottom of the Ingram Letter contains Ingram's name, the toll-free telephone number ending in –7679 and the code, "1ONREGCR011341;" and indicates, inter alia, "This collection agency is licensed by the Collection Service Board, State Department of Commerce and Insurance, 500 James Robertson Parkway, Nashville, TN 37243." (Id.) The name "Ingram" or "Ingram & Associates" appears six (6) times in the Ingram Letter. (Id.) Unlike the RCRS Letter, the Ingram Letter does not contain a validation notice.

Both the RCRS Letter and the Ingram Letter bear similar typeface, text placement, style, form and credit card graphics.

B. Procedural History

On or about June 29, 2016, plaintiff commenced this putative class action against Northwell Health, NSUH, RCRS and Ingram (collectively, "defendants"), and filed an amended complaint asserting fourteen (14) causes of action seeking damages for Ingram's and RCRS's respective violations of the FDCPA, and a common law fraud claim against all defendants. Specifically, the amended complaint alleges: (1) that Ingram violated (a) 15 U.S.C. §§ 1692g(a)(3), (4) and (5) (first through third causes of action, respectively), (b) 15 U.S.C. § 1692g (sixth and tenth causes of action), and (c) 15 U.S.C. § 1692e (seventh and eleventh causes of action); (2) that RCRS violated (a) 15 U.S.C. § 1692g (fourth and eight causes of action), and 15 U.S.C. § 1692e (fifth and ninth causes of action); (3) that Ingram and RCRS both violated 15 U.S.C. §§ 1692e(10) and (14) and 1692j (twelfth through fourteenth causes of action, respectively); and (4) that all defendants committed fraud (fifteenth cause of action).

With respect to plaintiff's fifteenth cause of action seeking damages for common law fraud, the amended complaint asserts the following allegations:

"207. INGRAM's August 14, 2015 letter to Plaintiff includes the statement, 'Sometimes mail gets misplaced ... We would still like to assist you in resolving your account.'

208. Such statement, in what is the first communication from INGRAM, is meant to make Plaintiff believe that the letter is not the the [sic] first communication from INGRAM.

209. Such statement, in what is the first communication from Defendant INGRAM, is meant to make Plaintiff

...