United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO DISMISS
A. BOLDEN, UNITED STATES DISTRICT JUDGE
Luis Garcia, brought this action against Defendant, the Law
Offices of Howard Lee Schiff, P.C. (“Schiff”),
alleging violations of the Fair Debt Collections Practices
Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”), arising out of a collection letter
concerning the balance due on Mr. Garcia's First Premier
Bank Visa credit card. Schiff has moved to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
reasons that follow, Schiff's motion is GRANTED in part
and DENIED in part. The Court grants the motion to dismiss
Mr. Garcia's claims for violations of 15 U.S.C. §
1692d and 15 U.S.C. § 1692f. It denies the motion to
dismiss Mr. Garcia's claims for violations of 15 U.S.C.
§ 1692e and § 1692e(10), but notes that Mr. Garcia
has not stated a claim under subsections § 1692e(2),
§ 1692e(5), § 1692e(7), and § 1692e(8).
Garcia is a resident of Waterbury, Connecticut. Compl. ECF
No. 1, ¶ 4. Schiff, a law firm specializing in
creditor's rights litigation, is located in East
Hartford, Connecticut. Id. at ¶ 5. Schiff is a
“debt collector” as the phrase is defined in 15
U.S.C. § 1692(a)(6) and as used in the FDCPA.
around February 12, 2016, Mr. Garcia received a collection
letter from Schiff concerning his First Premier Bank account.
Compl. ¶ 9, see also Letter, Mot. to Dismiss,
Ex. 1, ECF No. 11 (“the Letter”). The Letter
informed him that:
[Y]our First Premier Bank account is being serviced by Law
Offices of Howard Lee Schiff, P.C. Midland Funding, LLC, is
the current owner of this account. We are required to provide
some additional information pertaining to this account.
Letter, 1. The Letter further stated that the “charge
off balance” was $633.94, and the “current
balance” was $565.46. Compl. ¶ 10. The Letter did
not provide information “as to the discrepancy and a
further breakdown of the balance [and did not list any]
credits, payments, or interest accrued.” Id.
at ¶ 12. In fact, the Letter listed “$0”
next to “post charge-off payments & credits.”
Garcia alleges that the Letter “ma[de] it impossible
for a consumer to know how much is owed and if the debt will
be considered paid if payment is made in full.” Compl.
¶ 13. He further alleges that the letter violated the
FDCPA, which prohibits “deceptive, misleading, and
unfair debt collection practices.” Id. at
Standard of Review
seeks to dismiss Mr. Garcia's Complaint under both Rule
12(b)(1) and Rule 12(b)(6), making two standards of review
when a court reviews a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), it “must
accept as true all material factual allegations in the
complaint, but [it is] not to draw inferences from the
complaint favorable to plaintiffs.” J.S. ex rel.
N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.
2004). The burden of proving subject matter jurisdiction by a
preponderance of the evidence is on the plaintiff.
Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005). “In resolving a motion to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), a district court . . . may refer to evidence
outside the pleadings” to resolve the jurisdictional
issue, Makarova v. United States, 201 F.3d 110, 113
(2d Cir. 2000) (citing Kamen v. American Tel. & Tel.
Co., 791 F.2d 1006, 1011 (2d Cir. 1986)), but “may
not rely on conclusory or hearsay statements contained in the
affidavits, ” Attica Cent. Schs., 386 F.3d at
to survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff must state a claim for relief
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A claim is facially plausible if
“the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
570. Although “detailed factual allegations” are
not required, a complaint must offer more than “labels
and conclusions, ” “formulaic recitation[s] of
the elements of a cause of action, ” or “naked
assertion[s]” devoid of “further factual
enhancement.” Id. at 557.
determining whether the plaintiff has stated a plausible
claim for relief, the Court may consider only “the
facts as asserted within the four corners of the complaint,
the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007). The Court must accept the
allegations in the complaint as true and draw all reasonable
inferences in the light most favorable to the non-moving
party. In re NYSE Specialists Sec. Litig., 503 F.3d
89, 95 (2d Cir. 2007).
moves to dismiss under Rule 12(b)(1), arguing that Mr. Garcia
does not have standing to sue because he has not suffered an
injury-in-fact. See Mot. to Dismiss, ECF No. 10,
4-5. In the alternative, Schiff moves to dismiss Mr.
Garcia's Complaint under Rule 12(b)(6), arguing that he
has not alleged a violation of the FDCPA or, at most, that he
has alleged a “single, trivial and unintentional
violation” for which the Court should not award
damages. Id. at 6 (citing Piples v. Credit
Bureau of Lockport, 886 F.2d 22, 28 (2d Cir. 1989)). Mr.
Garcia responds that he has suffered a cognizable injury that
gives him standing to assert his claim and, furthermore, that
Defendant's Letter violated the FDCPA. The Court agrees
with Mr. Garcia that he has standing to sue and concludes
that only his claims under 15 U.S.C. § 1692e and §
1692e(10) may proceed.
Dismissal for Lack of Jurisdiction ...