United States District Court, D. Connecticut
MEMORANDUM OF DECISION
A. DOOLEY, UNITED STATES DISTRICT JUDGE
Eric Michael Sorenson (“Sorenson”) commenced this
action on December 12, 2016 against two private entities and
certain of their employees challenging their billing and debt
collection practices. Some counts in the original complaint
were dismissed pursuant to 28 U.S.C. § 1915(e)(2)(b).
Defendants MBI, Inc., The Danbury Mint, and Jon P. Hobar
(collectively, the “Defendants”) have moved to
dismiss the remaining counts on a variety of bases or, in the
alternative, seek summary judgment on the remaining counts.
Sorenson in addition to filing an opposition to that motion
has filed a “Motion to Strike Exhibits and Affidavit,
to Amend Complaint, to Moot Motion to Dismiss and For Summary
Judgment, for Transfer of Venue.” For ease of
reference, the Court refers to this motion as the
“Omnibus Motion.” How the Court addresses the
Omnibus Motion necessarily derives from the Court's
adjudication of the Motion to Dismiss. Therefore, all issues
joined in these motions are addressed herein, albeit, not
necessarily in the order raised and briefed.
reasons set forth in this decision, the Defendant's
Motion to Dismiss is GRANTED and Sorenson's Omnibus
Motion is DENIED in part and found as MOOT in
Allegations and Procedural History
Danbury Mint (“Danbury Mint”) is a private
merchant located in Norwalk, Connecticut. (See
Compl. at ¶ 10.) Danbury Mint is an operating division
of defendant MBI, Inc. (“MBI”). (See Id.
at ¶¶ 30 n.1, 59 n.2; ECF No. 72 at 5.) Both
businesses are located at the same address in Norwalk.
(Compl. at ¶¶ 9-10.)
2016, Sorenson purchased a ring from Danbury Mint, which he
paid for in full prior to receipt of the ring. (Id.
at ¶ 19.) Shortly after delivering the ring, Danbury
Mint started sending Sorenson bills for what it believed to
be the outstanding balance due for the ring. (Id. at
¶ 20.) Sorenson wrote to Danbury Mint to explain that he
already paid for the ring in full, but he received no
response. (Id. at ¶¶ 24-26.)
October 19, 2016, Sorenson was sent a “Final
Notice” (the “final notice”). (ECF No. 72
at 5; see also Compl. at ¶ 30.) The final
notice was on MBI letterhead and stated in relevant part:
This is our final notice regarding your delinquent Danbury
Mint account. Your account has now been transferred from
Customer Service to the Credit and Collections Department of
MBI, Inc., of which the Danbury Mint is an operating
division. Our records indicate that your account remains past
due for the item(s) referenced on the enclosed statement. If
you do not pay this past due balance within 30 days, we will
have no choice but to turn your account over to an outside
debt collection agency.
(ECF No. 72 at 5.) The final notice was signed by defendant
Jon P. Hobar (“Hobar”), who was identified as a
“Manager, Credit and Collections for The Danbury
Mint.” (ECF No. 72 at 5; see also Compl. at
¶¶ 11, 31.) After receiving the final notice,
Sorenson again wrote to Danbury Mint explaining that he had
already paid in full for the ring, but he did not receive a
response to that letter from Danbury Mint or MBI.
(See Compl. at ¶¶ 27-28.)
December 12, 2016, Sorenson initiated this action by way of a
fifteen-count complaint asserting claims under state and
federal statutory law, state and federal constitutional law,
and state common law. The Complaint includes several named
and “John Doe” defendants.
2, 2017, Magistrate Judge William I. Garfinkle issued a
Recommend Ruling, in which he recommended dismissal of all
state and federal constitutional claims as well as “any
claims” under the Fair Credit Billing Act, 15 U.S.C.
§ 1666, et seq. (“FCBA”) pursuant
to 28 U.S.C. § 1915(e)(2)(B). On June 26, 2017, the
Court (Underhill, C.J.) approved and adopted the
Recommend Ruling in its entirety. That same day, the Court
received Sorenson's objection to the Recommended Ruling.
In response to the objection,  the Court issued a clarification
order on July 13, 2017. The Court reiterated that it did not
dismiss Sorenson's state law claims that were not
premised on a constitutional violation. The Court further
declined to reconsider its earlier “dismissal of
Sorenson's claims brought under the Fair Credit Billing
Act.” (ECF No. 10 at 2.) As a result of these orders,
Counts One through Five, Nine, and Ten of the Complaint were
February 28, 2018, the Defendants moved to dismiss the
remaining counts - Counts Six through Eight and Eleven
through Fifteen - or, alternatively, sought summary judgment
on those counts. On October 15, 2018, Sorenson filed a
memorandum in opposition to the Defendants' motion to
dismiss. On October 31, 2018, Sorenson further filed the
Omnibus Motion in which he sought to strike exhibits attached
to the Defendants' motion for summary judgment, to amend
his complaint (thereby ostensibly mooting the Defendants'
motion to dismiss), and to transfer this matter to Minnesota
Motion to Transfer Venue (ECF No. 65)
asks this Court to transfer the venue of the action to the
Minnesota state court pursuant to 28 U.S.C. § 1404. But
Section 1404 does not authorize this Court to transfer a
federal matter to a State of Minnesota court. 28 U.S.C.
§ 1404(a); see 17 Moore's Federal
Practice §§ 111.01, 111.19 (Matthew Bender
3d ed.). Instead, it allows for transfer among federal
district courts only. 28 U.S.C. § 1404(a). The Motion to
Transfer is therefore DENIED.
Defendants' Motion to Dismiss (ECF No. 27)
Defendants have moved to dismiss the remaining counts in this
action. As an initial matter, the parties do not agree which
counts remain in this case. It is undisputed that
Sorenson's constitutional claims - Counts One through
Three, Nine, and Ten - have been dismissed. Citing to the
Court's clarification order, Sorenson maintains that only
these constitutional claims were dismissed and, therefore,
all other counts remain. The Defendants in contrast maintain
that Sorenson's claims brought under the FCBA have been
dismissed as well.
reading of the Court's clarification order is too narrow.
Therein, the Court did state that “Sorenson's state
law claims that are not premised on a violation of the
federal or state constitution” remained in the case,
but the Court also made clear that it would “not
reconsider Judge Garfinkel's recommended dismissal of
Sorenson's claims brought under the [FCBA].” (ECF
10 at 2.) Accordingly, “any claims” brought under
the FCBA remained dismissed after the issuance of the
Court's clarification order. (ECF No. 7 at 3.) Count
Three plainly asserts a FCBA violation. In addition, Counts
Four and Five are common law tort claims predicated on FCBA
violation. As such, they are also subject to the Court's
earlier dismissal order. Thus, Counts Six through Eight and
Eleven through Fifteen are the only remaining counts in this
Defendants move to dismiss these remaining counts on several
grounds. First, they argue that all claims against Danbury
Mint should be dismissed because Danbury Mint lacks legal
capacity to be sued, as it is an unincorporated division of
MBI. Second, they argue that the Complaint should be
dismissed pursuant to Rules 12(b)(4) and 12(b)(5) of the
Federal Rules of Civil Procedure for insufficient process and
service of process. Third, they argue that all of the
remaining counts should be dismissed for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Finally, the Defendants argue that if
Sorenson's federal statutory claim, asserted in Count
Eleven, fails, the Court should decline to exercise
supplemental jurisdiction over Sorenson's state law
claims and dismiss those counts pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure.
Court does not address all of the Defendants' arguments
because the question of whether Sorenson has stated a claim
for which relief can be granted is dispositive. As set forth
below, the Complaint is dismissed in its entirety pursuant to
survive a motion to dismiss filed pursuant to Rule 12(b)(6),
“a complaint must contain 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)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. “The plausibility standard is not
akin to a ‘probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 557). Legal conclusions and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” are not entitled to a
presumption of truth. Iqbal, 556 U.S. at 678.
Nevertheless, when reviewing a motion to dismiss, the court
must accept well-pleaded factual allegations as true and draw
“all reasonable inferences in the nonmovant's
favor.” Interworks Sys. Inc. v. Merch. Fin.
Corp., 604 F.3d 692, 699 (2d Cir. 2010).
Claims - Counts Eleven, Seven, and Fifteen
Count Eleven, Sorenson asserts a claim against MBI and Hobar
for violation of the Fair Debt Collection Practices Act (the
“FDCPA”), 15 U.S.C. § 1692, et seq.
In Counts Seven and Fifteen, Sorenson asserts claims against
the Defendants for violation of the Minnesota Collection
Agencies Act (“MCAA”), Minn. Stat. § 332.31,
et seq. The Court examines each claim in turn.
- Count Eleven
enacted the FDCPA in 1977 “to eliminate abusive debt
collection practices by debt collectors, [and] to insure that
those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged. . .
.” 15 U.S.C. § 1692(e). The FDCPA distinguishes
between creditors and debt collectors. A
“creditor” is “any person who offers or
extends credit creating a debt or to whom a debt is
owed.” 15 U.S.C. § 1692a(4). As a general rule, a
creditor who is collecting or attempting to collect a debt
owed or due to it is not a “debt collector.” 15
U.S.C. § 1692a(6)(F); Vincent v. The Money
Store, 736 F.3d 88, 97 (2d Cir. 2013). “Similarly,
a creditor's in-house collection division . . . is not
considered a debt collector ‘so long as [it uses] the
creditor's true business name when
collecting.'” Maguire v. Citicorp Retail
Servs., Inc., 147 F.3d 232, 235 (2d Cir. 1998) (quoting
S. Rep. No. 95-382 ...