United States District Court, D. Connecticut
SAMUEL M. CICALO, Plaintiff,
McCALLA RAYMER LEIBERT PIERCE, LLC and CHRISTOPHER J. PICARD, Defendants.
RULING AND ORDER ON PLAINTIFF'S MOTION FOR
R. UNDERHILL United States District Judge.
Cicalo filed this action on March 1, 2016, against the law
firm Hunt Leibert Jacobson, P.C.
(“Hunt”), and one of its attorneys, Christopher J.
Picard, alleging multiple violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“FDCPA”). (Doc. # 1.) On April 29,
2016, the defendants moved to dismiss all claims for failure
to state a claim. (Doc. # 10.) Thereafter, on September 6,
2016, Cicalo filed a motion to amend his complaint in which
he sought to add factual allegations in an attempt to cure
perceived defects in the complaint. (Doc. # 45.) On January 10,
2017, in a single ruling, I granted Cicalo's motion to
amend his complaint and, construing the defendants'
earlier motion to dismiss as applied to the Amended
Complaint, I dismissed the claims brought under sections
1692f and section 1692g, leaving allegations regarding
potential violations of 15 U.S.C. § 1692e as the only
remaining claims in this case. (Doc. # 58.) On March 30,
2017, Cicalo filed a motion for partial summary judgment on
his remaining claims. (Doc. # 70.) On May 22, 2017, the
defendants filed an opposition to Cicalo's motion motion
for summary judgment, which included a cross-motion for
summary judgment. (Doc. # 73.) On August 10, 2018, I entered
an order denying Cicalo's motion for summary judgment and
granting the defendants' cross-motion for summary
judgment, and thus directed that this case be closed. (Doc. #
83.) Cicalo has since moved for reconsideration of my August
10 ruling. (Doc. # 85.) Perhaps relying on what they perceive
to be a lack of merit to the arguments in Cicalo's latest
motion, the defendants have not filed any response. Although
I now grant Cicalo's motion for reconsideration, for the
reasons stated below, I deny the requested relief. I thus
adhere to my earlier decision granting summary judgment in
favor of the defendants.
assume all parties' familiarity with the relevant facts
and procedural history, and, for a brief statement of the
facts relevant to Cicalo's motion for reconsideration,
refer interested readers to my original ruling granting
standard for granting motions for reconsideration is strict.
Motions for reconsideration “will generally be denied
unless the moving party can point to controlling decisions or
data that the court overlooked-matters, in other words, that
might reasonably be expected to alter the conclusion reached
by the court.” Shrader v. CSX Transp., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration will not
be granted where the party merely seeks to relitigate an
issue that has already been decided. Id. The three
major grounds for granting a motion for reconsideration in
the Second Circuit are: (1) an intervening change of
controlling law, (2) the availability of new evidence, or (3)
the need to correct a clear error or prevent manifest
injustice. Virgin Atl. Airways v. Nat'l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citing 18
Charles A. Wright, et al., Federal Practice &
Procedure § 4478).
does not point to any intervening changes in controlling law
or newly available evidence, so I consider here only whether
reversal of my original ruling is necessary to correct clear
error or prevent manifest injustice.
makes four distinct arguments in his motion for
reconsideration. Because each argument can be disposed of
fairly quickly, I simply address each below, in
Cicalo argues that it was “manifestly unjust” to
base any part of my original ruling on my observation that he
had failed to adduce sufficient evidence that the defendants
were regularly engaged in debt collection activity.
(Pl.'s Br. at 1, doc. # 85-1.) The issue of regular
engagement in debt collection activity is relevant because
only debt collectors are subject to the relevant provisions
of the FDCPA, Goldstein v. Hutton, Ingram, Yuzek, Gainen,
Carroll & Bertolotti, 374 F.3d 56, 60 (2d Cir.
2004), and, in order to qualify as debt collectors, the
defendants must “regularly” engage in debt
collection activity, id. at 61. Cicalo now
contends that I should not have based my original ruling on
factors that were not previously argued and that “no
party understood to be at issue”. (Pl.'s Br. at 2.)
I note that, because the regularity of a party's debt
collection activity can be essential to a finding that it is
liable under the FDCPA, the argument that no party understood
the question of regularity to be at issue is somewhat
surprising. Regardless, as I stated in my original ruling,
because the defendants had not moved for summary judgment on
the basis of a lack of regularity to their debt collection
activity, “I [did] not grant summary judgment in their
favor for that reason alone.” (Ruling on Cross-Mots.
for Summary Judgment at 13, doc. # 83.) To the extent there
was ambiguity in my original statement, I now clarify that I
granted summary judgment to the defendants on other grounds.
Accordingly, there is no manifest injustice created by my
observation that evidence was lacking regarding the
regularity of the defendants' debt collection activity. I
therefore decline to modify my original ruling on that basis.
Cicalo argues that I should not have granted summary judgment
to defendants on the basis of the immateriality of a $7, 329
understatement of the amount of Cicalo's
debt. (Pl.'s Br. at 3-6.) Implicitly
conceding that the materiality of a misstatement is relevant
to a least-sophisticated-consumer analysis, Cicalo asserts
that the least-sophisticated-consumer would concern him or
herself with the absolute dollar amount of a misstatement as
opposed to the ratio of the misstatement to the total debt.
(Pl.'s Br. at 3.) Moreover, even assuming the absolute
dollar amount of an overstatement was the most
appropriate measurement, Cicalo has failed to cite to any
cases suggesting that the understatement at issue
here must be material. At this stage in the proceedings, I
deem his argument regarding materiality insufficient to
suggest clear error in my original ruling.
also attempts to argue, seemingly in the alternative, that
misstatements need not be material to violate the
FDCPA. (Pl.'s Br. at 3-4.) In my original
ruling, I noted that the Second Circuit has yet to
definitively address that argument, but noted that other
circuits have adopted a materiality requirement, and I cited
to an unpublished Second Circuit decision doing the same.
(Ruling on Cross-Mots. at 15-16 (citing Gabriele v. Am.
Home Mortg. Servicing, Inc., 503 F. App'x 89, 94 (2d
Cir. 2012)).) Notwithstanding those precedents, Cicalo argues
that there is no de minimis/materiality exception to
FDCPA liability, relying principally on out of circuit cases,
and citing to two inapposite Second Circuit
cases. As my original ruling also noted, numerous
other district courts in this Circuit have also found a
de minimis/materiality requirement. See,
e.g., Gabrielle v. Law Office of Martha Croog,
2012 WL 460264, at *2 (D. Conn. Feb. 9, 2012); Lane v.
Fein, Such and Crane, LLP, 767 F.Supp.2d 382, 389
(E.D.N.Y. 2011); Klein v. Solomon & Solomon,
P.C., 2011 WL 5354250, at *2 (D. Conn. Oct. 28, 2011).
There is no clear error in my holding on the
Cicalo asserts that I erred when I held the document he
describes as a second validation notice to not be misleading,
because I failed to consider the purported validation notice
in the context of the foreclosure complaint to which it was
attached. (Pl.'s Br. at 6-8.) As a preliminary matter,
Cicalo's argument is misplaced: My original ruling held
that the purported validation notice was not sent in
connection with the collection of a debt and thus was not
capable of violating section 1692e-a holding that
did rely on consideration of the full context of the
foreclosure complaint. (Ruling on Cross-Mots. at 14-15.)
Cicalo's assertion is also incorrect: I did consider the
full context of the foreclosure complaint in determining that
the purported validation notice was neither inaccurate nor
misleading. (Ruling on Cross-Mots. at 24-26.) Finally,
Cicalo's briefing does not actually support his assertion
that I failed to consider the purported validation notice in
the appropriate context, and instead appears to be a platform
to attempt to reargue his contention that the notice was
misleading. That is not an appropriate argument for
a motion for reconsideration, and I decline to modify my
original holding that the purported validation notice does
not violate section 1692e.
and finally, Cicalo argues that granting complete summary
judgment to the defendants was inappropriate, because the
summary judgment briefing and ruling were only directed to
partial summary judgment, and therefore did not
request or address disposition of Cicalo's claim that
“defendants included amounts not owed in the total
demanded.” (Pl.'s Br. at 8-9.) Specifically, Cicalo
argues that the allegations in paragraphs 28 and 29 of his
Amended Complaint went unaddressed in the summary judgment
briefing and my original ruling. That argument is without
merit. In their cross-motion for summary judgment, the
defendants squarely addressed Cicalo's ambiguous
allegation in paragraph 28 of the Amended Complaint that the
charges claimed were “inconsistent, incorrect or not
authorized by law”, and the speculation in paragraph 29
of the Amended Complaint that such inconsistent, inaccurate,
or unauthorized charges resulted from the inclusion of
“interest, costs or fees not awarded by a court”.
(Am. Compl. at ¶¶ 28-29; see Def.'s
Br. at 18-20, doc. # 73.) Moreover, my original ruling
accounted for the defendants' argument that there was no
evidence to support the allegations in paragraphs 28 and 29.
My original ruling, which found no 1692e liability, discussed
the impact of a $7, 329 discrepancy in charges because there
was no evidence of any other improper charges in the record.
To the extent that Cicalo now argues that granting the