Rivero v. Cach LLC
| Decision Date | 27 February 2014 |
| Docket Number | 11-CV-04810 (ENV)(LB) |
| Court | U.S. District Court — Eastern District of New York |
| Parties | RENY RIVERO, Plaintiff, v. CACH LLC, DANIELS & NORELLI, P.C., IRA R. SITZER, FRED G. DANIELS, GEORGE H. NORELLI AND HELEN FERINO Defendants. |
VITALIANO, D.J.
Pro se plaintiff Reny Rivero brings this action seeking damages under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, against defendants Cach LLC ("Cach"), one of Rivero's consumer debt creditors; Daniels & Norelli P.C. ("D&N"), the debt collection law firm retained by Cach; three D&N employees, Ira R. Sitzer, Fred G. Daniels, and George H. Norelli; and attorney Helen Ferino. On May 16, 2012, D&N made Rivero a written offer of judgment, pursuant to Federal Rule of Civil Procedure 68, in the amount of $1001 plus costs. Rivero declined the offer of judgment. Defendants, represented by D&N, now move to dismiss the complaint on the ground that Rivero's rejection of this offer deprives the Court of subject matter jurisdiction, or alternatively, assuming jurisdiction, for summary judgment on behalf of defendants Cach, Daniels, Norelli, and Ferino. For the reasons set forth below, the motion to dismiss is denied and the motion for summary judgment is granted.
D&N was retained by Cach to collect consumer credit card debt purportedly owed to Cach by various debtors, including Rivero. (Scully Aff., Dkt. No. 46, at ¶ 2.) After allegedly trying to reach Rivero to resolve the debt, D&N brought a civil action against him in Civil Court, Richmond County. (Id.) Rivero's failure to respond to the complaint resulted in the entry of a default judgment on December 8, 2009. (Id.). On or about October 1, 2010, Rivero received a phone message from D&N seeking to collect the debt, the first communication he claims to have received regarding the debt. (2d Am. Compl., Dkt. No. 27, ¶ 14.) That same day, plaintiff prepared a letter pursuant to 15 U.S.C. 1692g(b), which he subsequently sent to D&N by fax and certified mail, disputing the debt and demanding that D&N validate the debt by competent evidence, and that D&N cease and desist contacting him via telephone.1 (See id. ¶ 16-18; Exs. A and B to 2d Am. Compl., Dkt. No. 29.) In March 2011, Rivero moved to vacate the default judgment in Civil Court, based on lack of service of process, claiming that service had been made at the wrongaddress. (2d Am. Compl. ¶¶ 24-26.2) On June 20, 2011, at what was to be a traverse hearing over service of process, the parties agreed by stipulation to vacate the default judgment, and Rivero agreed to file an answer within 20 days, which he subsequently did. (Scully Aff. ¶ 3; 2d Am. Compl. ¶ 30). On October 7, 2011, Cach moved for summary judgment in the Civil Court proceeding, which was granted on December 7, 2011.3 (Id. ¶¶ 4, 6). There was no appeal.
While the state court action was pending, Rivero filed this lawsuit on September 30, 2011, alleging violations of various provisions of FDCPA and New York City Local Law 15,4 seeking both actual and statutory damages. (Compl., Dkt. No. 1.) On January 12, 2012, plaintiff filed an amended complaint adding defendants Sitzer, Daniels, Norelli, and Ferino.5 (Dkt. No. 11.) D&N answered theamended complaint on January 26, 2012. The remaining defendants filed their joint answer on February 20, 2012, which included counterclaims seeking attorney's fees and an order under 28 U.S.C. § 1651 barring plaintiff from bringing further actions pro se absent leave of court. On March 27, 2012, Rivero filed a second amended complaint, and an answer to defendants' counterclaims. (Dkt. No. 27.)
The complaint charges that, in violation of FDCPA, D&N and its named employees made over 15 wrongful, threatening, and abusive phone calls to him during the period November 22, 2010 through April 5, 2011, after Rivero had sent D&N written notice disputing and requesting verification of the debt. (2d Am. Compl. ¶ 19.) Plaintiff provides a log—which he has testified was generated by Vonage, his phone service provider—of these alleged calls, which sets out the date, time, and caller's phone number. (Ex. C to 2d Am. Compl., Dkt. No. 29; Rivero Dep. at 10.) Plaintiff claims that in 12 of these 15 calls, defendant Sitzer, a D&N employee, left him voicemail messages, of which he submits transcriptions, also apparently generated by Vonage. (Ex. D to 2d Am. Compl.; Rivero Dep. at 10.) A review of the transcriptions shows that, for each call, the caller's phone number is associated with "Daniels," and that, in certain of the messages, the caller identifieshimself as "Ira from the law firm of Daniels and [Norelli]."6
On May 16, 2012, D&N wrote to Rivero and made an offer of judgment, pursuant to Rule 68, in the amount of $1001 plus costs.7 (See Scully Aff., Ex. C.) The offer was conditioned on judgment being taken against D&N only, with the action to be dismissed with prejudice against all other defendants. (Id.) Rivero rejected the offer.8 (Scully Aff. ¶ 11.) Defendants argue that the judgment they offered Rivero is more than the maximum amount he may recover under FDCPA, which provides for statutory damages of up to $1000, and that he has disclaimed any actual damages he may have once sought. (Scully Aff. ¶¶ 12-13.) Defendants thus argue that their offer to plaintiff has eliminated any case or controversy from this matter, depriving the Court of subject matter jurisdiction. In the alternative, they claim that defendants Cach, Daniels, Norelli, and Ferino are entitled to summary judgment as no genuine issue of material fact remains as to those defendants. Summary judgment is not sought as to D&N or Sitzer.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Although a court must read the pleadings and papers submitted by a self-represented party "liberally. . . and interpret them to raise the strongest argument that they suggest," Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), it nonetheless remains the plaintiff's burden, even if pro se, to establish the court's constitutional and statutory authority to hear the claim. Makarova, 201 F.3d at 113. Defects in subject matter jurisdiction may be raised at any time during the proceedings. Fed. R. Civ. P. 12(h)(3).
If the Court finds that it has jurisdiction, D&N moves alternatively for summary judgment on behalf of defendants Cach, Daniels, Norelli, and Ferino, pursuant to Rule 56. In determining the merits of a summary judgment motion, a court's duty is not to try issues of fact, but rather to "determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). The moving party bears the burden of showing that there is no genuine issue as to any material fact, see, e.g., Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005), and the court will resolve all ambiguities and draw all permissible factual inferences in favor of the nonmoving party, see, e.g., Sec. Ins. Co. of Hartford v. Old Dominion Freight Line. Inc., 391 F.3d 77, 83 (2d Cir. 2004).
If the moving party meets its initial burden of demonstrating the absence of adisputed issue of material fact, the burden shifts to the nonmoving party. See George v. Reisdorf Bros., Inc., 410 Fed. Appx. 382, 383-84 (2d Cir. 2011). The nonmoving party may not rely solely on "conclusory allegations or unsubstantiated speculation" in order to defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Instead, the nonmoving party must "make a showing sufficient to establish the existence of [each] element to that party's case . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the evidence favoring the nonmoving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511 (1986).
"[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). The idea of a "legally cognizable interest" has also been described as "a requirement that a plaintiff have a 'personal stake' in the litigation." Fox v. Bd. of Trustees of State Univ. of New York, 42 F.3d 135, 140 (2d Cir. 1994) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980)). "When a defendant offers the maximum recovery available to a plaintiff as part of a Rule 68 offer of judgment,this eliminates the plaintiff's "personal stake" in the litigation and thus moots the case. Ward v. Bank of New York, 455 F. Supp. 2d 262, 267 (S.D.N.Y. 2006) (citing Abrams v. Interco, 719 F.2d 23, 32 (2d Cir. 1983)); see also Weiss v. Fein, Such, Kahn & Shepard, P.C., No. 01-cv-1086, 2002 WL 449653 (S.D.N.Y. Mar. 22, 2002) (); Cresswell v. Prudential-Bache Sec., Inc., 675 F. Supp. 106, 108 (S.D.N.Y. 1987) (). "When a case becomes moot, the federal courts 'lack[ ] subject matter jurisdiction over the action.'" Fox, 42 F.3d at 140 (quoting New York City Employees' Retirement Sys. v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992)) (alteration in original). Recently, the Second Circuit specifically found that an FDCPA case may be mooted by a Rule 68...
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