United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR JUDGMENT ON THE
Jeffrey Alker, Meyer United States District Judge
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.
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.
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.
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).
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.
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).
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).
Fair Debt Collection Practices Act
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).
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.
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.
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.
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 ...