Scalabrini v. PMAB, LLC
| Decision Date | 03 March 2020 |
| Docket Number | No. 18-cv-11152 (NSR),18-cv-11152 (NSR) |
| Parties | GINO J. SCALABRINI, on behalf of himself and all others similarly situated, Plaintiff, v. PMAB, LLC; BAPTIST HOSPITAL, INC.; and GULF COAST COLLECTION BUREAU, INC., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Gino Scalabrini initiated this putative class action against Defendants PMAB, LLC ("PMAB"), Baptist Hospital, Inc. ("Baptist"), and Gulf Coast Collection Bureau, Inc. ("Gulf Coast"), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), and New York law. (ECF No. 1.) Baptist now moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, to transfer this case to the Northern District of Florida, Pensacola Division, pursuant to 28 U.S.C. §§ 1404(a) and 1406(a). (ECF No. 25.) PMAB and Gulf Coast join in the portion of Baptist's motion seeking to transfer the case to Florida. (ECF No. 22.) For the reasons stated below, Baptist's motion is GRANTED IN PART, and PMAB and Gulf Coast's motion is DENIED.
The following facts are derived from the Complaint unless otherwise noted and are accepted as true for purposes of this motion.
Plaintiff, a resident of Brewster, New York, received medical treatment at Gulf Breeze Hospital, "aka Baptist Gulf Breeze Hospital" ("GBH"), in Santa Rosa County, Florida, on an unspecified date. (Compl. ¶ 2.) GBH is a fictitious entity owned and operated by Baptist. (Id. ¶ 4.) Plaintiff states that the treatment performed at GBH included the provision of unauthorized, illegal medical procedures, done without his consent and directly contrary to his instructions. (Id. ¶ 2.)
On July 3, 2017, Plaintiff received a collection notice for some of the cost of the unauthorized medical procedures. (Id. ¶ 16.) The Notice was sent by PMAB, and "caused to be sent" by Baptist. (Id.) On August 1, 2017, Plaintiff sent a dispute notice to PMAB, informing PMAB and Baptist that he would "not pay for surgery [he] did not authorize, including the required postoperative day 1 visit of December 16, 2016." (Id. ¶ 17.) On August 14, 2017, Baptist provided a patient statement of account to PMAB, directing Plaintiff to make payments to GBH. (Id. ¶ 18.) On August 17, 2017, PMAB sent Plaintiff a second collection notice. (Id. ¶ 19.)
On October 25, 2017, and December 4, 2017, Baptist sent Plaintiff two separate GBH Billing Notices directing Plaintiff to make payment for more of the cost of the unauthorized medical procedures to GBH. (Id. ¶¶ 20, 22.) Approximately eight times between November 18, 2017, and December 20, 2017, Baptist called Plaintiff and left pre-recorded messages on behalf of GBH, again seeking more of the cost of the unauthorized medical procedures. (Id. ¶ 21.) The messages directed Plaintiff to call about amounts owed to GBH. (Id.)
On December 15, 2017, Gulf Coast sent, and Baptist caused to be sent, a third collection notice to Plaintiff. (Id. ¶ 23.) On January 17, 2018, Plaintiff sent Gulf Coast a second dispute notice, again stating that he would not pay for unauthorized surgery or follow-up care. (Id. ¶ 24.) On June 4, 2018, PMAB sent a fourth collection notice to Plaintiff. (Id. ¶ 25.) In response, Plaintiff sent a third dispute notice reiterating the assertions in his first two dispute notices. (Id. ¶ 26.) OnJuly 12, 2018, PMAB sent a "settlement offer" to Plaintiff seeking half the cost of the medical care provided by Baptist. (Id. ¶ 27.)
Plaintiff avers that none of the Defendants investigated his claims that the procedures he was being charged for were unauthorized, even though he provided such claims in writing on three separate occasions. (Id. ¶ 27.) Instead, Defendants continued their efforts to collect the alleged debt. (Id. ¶ 29.) Defendants also reported the alleged debt to various credit reporting agencies, thereby damaging Plaintiff's credit.1 (Id. ¶ 30.)
Plaintiff filed the instant Complaint alleging that Defendants violated the FDCPA by (1) leaving eight pre-recorded debt collection messages; (2) attempting to collect amounts that were not owed; and (3) disclosing information regarding Plaintiff's debt to credit reporting agencies, knowing the information was false. (Id. ¶¶ 32-33.) Plaintiff further alleges that Defendants violated 23 NYCRR § 1.2(a) and (b). (Id. ¶¶ 37-38.) Plaintiff brings the foregoing claims on behalf of himself and a purported class of debtors. (Id. ¶¶ 40-53.)
Under Rule 12(b)(6), the inquiry is whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. To survive a motion to dismiss, a complaint must supply "factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98(2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is "'not bound to accept as true a legal conclusion couched as a factual allegation,'" or to credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Id. at 662. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.
Congress enacted the FDCPA, in part, "to eliminate abusive debt collection practices" and "protect consumers from deceptive or harassing actions taken by debt collectors." 15 U.S.C. § 1692; Gabriele v. Am. Home Mortg. Servicing, Inc., 503 F. App'x 89, 93 (2d Cir. 2012) (internal citations omitted); see Vincent v. The Money Store, 736 F.3d 88, 101 (2d Cir. 2013) (citing Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir.1989) (). To achieve these ends, the FDCPA imposes, "among other things, notice and timing requirements on efforts by 'debt collectors' to recover outstanding obligations." Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 58 (2d Cir. 2004). Pursuant to Section 1692k of the FDCPA, "any debt collector who fails to comply with any provision of [the FDCPA] with respect to any person is liable to such person." 15 U.S.C. § 1692k.
Thus, to state a claim under the FDCPA, a plaintiff must demonstrate that: (1) the plaintiff is a person who was the object of efforts to collect a consumer debt; (2) the defendant is a debtcollector as defined in the statute; and (3) the defendant has engaged in an act or omission in violation of the FDCPA. Cohen v. Ditech Fin. LLC, 15-CV-6828, 2017 WL 1134723, at *5 (E.D.N.Y. Mar. 24, 2017) (citing Scaturro v. Northland Grp., No. 16-CV-1314, 2017 WL 415900 at *2 (E.D.N.Y. Jan. 9, 2017)). In evaluating potential violations of the FDCPA, courts must apply an objective standard based on whether the "least sophisticated consumer" would be deceived by the collection practice. See Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). The "least sophisticated consumer" standard is consistent with the overall purpose of the FDCPA, which is to limit harassing, misleading, and deceptive contacts and communications with or about consumer debtors.
Baptist and Plaintiff primarily dispute whether Plaintiff has sufficiently pleaded that Baptist, the creditor, may be deemed a debt collector subject to the FDCPA.
The term "debt collector" is defined by the FDCPA as "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. § 1692a(6). Conversely, a creditor under the FDCPA is, in relevant part, an entity that "extends credit creating a debt or to whom a debt is owed." Id. § 1692a(4).
As a general rule, creditors are not subject to the FDCPA. Maguire v. Citicorp. Retail Servs., Inc., 147 F.3d 232, 234 (2d Cir. 1998); see also Mazzei v. Money Store, 349 F. Supp. 2d 651, 658 (S.D.N.Y. 2004) . However, a creditor becomes subject to the FDCPA if the creditor "in the process of collecting hisown debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts." 15 U.S.C. § 1692a(6); see also Maguire, 147 F.3d at 234. Thus, the FDCPA's so-called "false name exception" requires three elements to be satisfied before deeming a creditor a debt collector: "(1) the creditor is collecting its own debts; (2) the creditor 'uses' a name other than its own; and (3) the creditor's use of that name falsely indicates that a third person is 'collecting or attempting to collect' the debts that the creditor is collecting." Vincent, 736 F.3d at 98. "The false name exception aims to prevent deceit as to who is actually collecting the debt." Mazzei, 349 F. Supp. 2d at 658 (citing Maguire, 147 F.3d at 236).
"Although a...
To continue reading
Request your trial