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Lundstedt v. I.C. System, Inc.

United States District Court, D. Connecticut

September 26, 2017

PETER LUNDSTEDT, Plaintiff,
v.
I.C. SYSTEM, INC., Defendant.

          RULING ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

          Jeffrey Alker, Meyer United States District Judge

         Plaintiff Peter Lundstedt's phone would not stop ringing. It was a debt collector- defendant I.C. System, Inc.-who kept calling. Defendant called plaintiff's home telephone some 29 times over the course of 24 days, all in hopes of collecting on a paltry sum that plaintiff owed his telephone company.

         Now it is plaintiff who hopes to collect from defendant. He has filed this lawsuit claiming that defendant's numerous calls violated his rights under multiple statutes and the common law. Defendant moves for judgment on the pleadings.

         I conclude that plaintiff has alleged a valid claim for relief under the Fair Debt Collection Practices Act because he has alleged facts that plausibly show defendant's intent to annoy, harass, and abuse him by calling him so many times. But the rest of plaintiff's claims are lacking. The Telephone Consumer Protection Act does not prohibit the use of an automatic dialing system to call plaintiff's home telephone. The Connecticut Unfair Trade Practices Act does not apply because plaintiff did not suffer an ascertainable loss of money or property. A Connecticut law that regulates telephone solicitation (Conn. Gen. Stat. § 42-288a) does not apply to debt collection calls. And although the many phone calls to plaintiff were bothersome, no facts plausibly suggest that plaintiff suffered a foreseeable illness or injury that would allow him to maintain a claim for negligent infliction of emotional distress. Accordingly, I will grant in part and deny in part defendant's motion for judgment on the pleadings.

         Background

         Plaintiff claims that defendant placed 29 telephone calls using an automatic dialing system to his home between February 16 and March 11, 2015. These calls were allegedly made to collect a debt owed by plaintiff to Verizon for about $160. According to plaintiff, he told defendant on the first call that he was disputing the debt, to take him off its call list, and to stop calling him because it was injurious to plaintiff. Plaintiff's phone number had been registered as well to the national “Do Not Call” registry. Plaintiff claims that defendant's repeated calls caused him “serious terrorizing emotional distress, ” and defendant's “terrorizing tortuous acts caused” plaintiff distress “because [he] had been called hundreds if not thousands of times by other debt collectors.” Doc. #1-1 at 9 (¶ 17).

         Plaintiff filed a pro se complaint against defendant in Connecticut Superior Court. Defendant filed a notice of removal to this Court, and defendant has now moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings.

         Discussion

         The standard for reviewing a motion for judgment on the pleadings pursuant to Rule 12(c) is identical to that for a motion to dismiss under Rule 12(b)(6). See D'Alessio v. New York Stock Exchange, Inc., 258 F.3d 93, 99 (2d Cir. 2001). The Court must accept as true all factual matters alleged in a complaint, and the allegations of a pro se complaint must be read liberally to raise the strongest arguments that it suggests. See Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010).

         In recent years, the Supreme Court has set forth a threshold “plausibility” pleading standard for courts to evaluate the adequacy of federal court complaints. A complaint must allege enough facts-as distinct from hyperbole or legal conclusions-that give rise to plausible grounds for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Notwithstanding the rule of liberal interpretation of a pro se complaint, a pro se complaint may not survive dismissal if its factual allegations do not meet the basic plausibility standard. See, e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015).

         The Fair Debt Collection Practices Act

         A fair reading of the complaint is that plaintiff claims a violation of the federal Fair Debt Collection Practices Act (FDCPA). The relevant provision of the FDCPA provides that “a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. The statute lists a specific example of conduct that violates this prohibition: “Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5).

         Defendant counters that the FDCPA does not apply for three reasons. First, defendant argues that the FDCPA defines a “debt” to mean a “consumer” debt, see 15 U.S.C. § 1692a(5), and plaintiff has failed to plead that the debt at issue is a consumer debt. I do not agree that this alleged deficiency defeats plaintiff's claim at the pleading stage in view that the calls at issue were made to plaintiff's home and in light of plaintiff's allegation that he is a disabled veteran. It is therefore more plausible that any account plaintiff had with Verizon would have been a consumer account than a business account. The facts suffice for a plausible inference that the debt was a consumer debt.

         Second, defendant argues that plaintiff did not make a written request to leave him alone, consistent with a provision of the FDCPA that requires a debt collector to cease all communication with any consumer who timely disputes a debt in writing. See 15 U.S.C. § 1692g(b). This argument is specious. Apart from the extra protection for a consumer that § 1692g(b) affords for a consumer who lodges a dispute in writing, nothing in the text of § 1692d suggests that a debt collector is at liberty to annoy and harass a debtor for so long as the debtor may fail to dispute a debt in writing Third, defendant argues that the alleged pattern of calls-29 calls over a period of 24 days-is legally insufficient to show an intent to annoy, abuse, or harass plaintiff as the statute requires. This seems like a lot of calls to me, and I cannot agree that the pattern is so insubstantial that it fails as a matter of law. Contrary to defendant's assertion that “no calls were made continuously on the same day” Doc. #20 at 13, the call log attached to the complaint shows multiple days when more than one call was made: three calls on February 17, 2015, four calls on February 26, two calls on February 28, three calls on March 2, and then two calls each on March 3, 4, 6, 9, 10, and 11. Doc. #1-1 at 26. Even though the calls did not occur at odd hours and there are no allegations of any abusive comments made by defendant during these calls, it is far from implausible to conclude on the basis of the frequency and pattern of calls that plaintiff could prove an intent to annoy, abuse, or harass. See, e.g., Sanchez v. Client Services, Inc., 520 F.Supp.2d 1149, 1160-61 (N.D. Cal. 2007) (granting summary judgment for plaintiff where defendant made 54 calls over a span of six months); Kloth-Zanard v. Bank of America, 2016 WL 287020, at *3 (D. Conn. 2016) (104 telephone calls over 15 months sufficed for a harassment claim under § 1692d); see also Allen v. Bank of Am., N.A., 2012 WL 5412654, at *8 (N.D. Ill. 2012) (discussing standards to evaluate a § 1692d claim on the basis of volume and pattern of calls and whether a plaintiff has asked the collection agency to stop). There is enough here for the complaint to survive the pleading stage.

         Defendant misplaces its reliance on Chavious v. CBE Group, Inc., 2012 WL 113509 (E.D.N.Y. 2012), because that case involved repeated calls to a consumer who-unlike plaintiff in this case-could not be reached or had not told the debt collector to stop calling. Id. at *2-3. Moreover, as Chavious itself notes, “the caller's intent is often a jury question, ” id. at 2, and it would certainly not be appropriate for me at the initial pleading stage to conclude that plaintiff's allegations of 29 calls over a period of 24 days is insufficient as a matter of law.

         Plaintiff has alleged enough facts to state plausible grounds from relief for his claim of annoyance, harassment, and abuse under 15 U.S.C. § 1692d. Accordingly, I will deny defendant's motion for ...


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