Case Information
‐ 3794 ‐ cv Beauvoir Israel
In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. ‐ ‐ cv
G ARY B EAUVOIR , H USBENE B EAUVOIR , behalf themselves all other similarly situated consumers, ‐ Appellants ,
v D AVID M. I SRAEL ,
Defendant Appellee [*]
On Appeal United States Court Eastern New York
A RGUED : J UNE D ECIDED : J ULY
Before: C ABRANES P OOLER D RONEY Circuit Judges
The question presented is whether money owed as result of theft unmetered natural gas qualifies as “debt” for purposes Fair Debt Collection Practices Act, U.S.C. §§ 1692–1692p (“FDCPA”).
We hold money owed as result theft “obligation money transaction” therefore, “debt” for purposes U.S.C. 1692a(5). thus affirm August judgment United
States for Eastern New York (Frederic Block, Judge ).
L EVI H UEBNER Levi Huebner & Associates, PC, Brooklyn, NY, for ‐ Appellants M ATTHEW J. B IZZARO L ʹ Abbate, Balkan, Colavita & Contini, L.L.P., Garden City, NY, Defendant Appellee
J OS É A. C ABRANES Circuit Judge : question presented unmetered natural gas qualifies Fair Debt Collection Practices Act, §§ 1692–1692p
(“FDCPA”).
We hold that money “obligation transaction” therefore, purposes the FDCPA. 1692a(5). thus affirm August 7, judgment the United
States Eastern District New York (Frederic Block, Judge ).
BACKGROUND Gary Husbene Beauvoir appeal
Court’s August 7, judgment granting defendant’s motion dismiss dismissing plaintiffs’ complaint.
On March 2013, Beauvoirs filed their putative class action complaint against defendant David M. Israel, attorney representing National Grid New York (“National Grid”), company that provided natural gas Beauvoirs’ home. The Israel sent Beauvoirs letter April stated National Grid had referred matter him “for collection amount set forth above, based upon consumption unmetered gas” at Beauvoirs’ residence. J.A. 20. Although letter advised Beauvoirs their right dispute National Grid’s claim, did advise them they thirty days do so state amount debt. allege these omissions violated See *4 U.S.C. § 1692g(a). also allege the collection letter violated 1692e(5) and (10) because purportedly “engag[ed] in deceptive and falsely threatening practices.” J.A. 15. *5 Separately, state filed May National Grid against Beauvoirs, National Grid that Beauvoirs “diverted consumed unmetered natural gas . . . means unlawfully tampering with [National Grid’s] gas meter to impede, impair, obstruct prevent said meter performing its recording function.” J.A. 54. In proceedings before District Court, Israel asserted that failed to state claim under FDCPA, because collection action he initiated concerned theft natural gas and, thus, did concern debt that term is defined statute.
On August Court granted Israel’s motion dismiss, holding that “obtaining natural gas through meter tampering is such, outside scope FDCPA.” The further held was immaterial A debt collector use any false, deceptive, or misleading representation or means connection collection any debt. Without limiting general application foregoing, following conduct violation this section: . . .
(5) The threat take any action cannot legally taken or intended be taken. (10) use any false representation deceptive means collect attempt collect any obtain information concerning consumer. deny the because “the merit[] claim
not matter for Court to decide. What matters in the context claim asserted basis for pay.”
This appeal followed.
DISCUSSION
I. As preliminary matter, we must address we have jurisdiction hear this case. filed notice appeal time. Simultaneous late filing, plaintiffs filed motion extend time file notice appeal, which District Court granted before defendant responded. Defendant then filed motion for reconsideration. That motion remained pending District Court for several months while parties briefed this appeal. Because motion was still pending, we issued order show cause why this appeal should dismissed for lack jurisdiction. Shortly thereafter, District Court denied motion reconsideration. Federal Rules Appellate Procedure do appear address this unusual situation. See generally Fed. R. App. P. 4(a). Had motion reconsideration remained pending while we heard this appeal, we may very well have lacked appellate jurisdiction. If were rule, exercised jurisdiction, then appeal may have overtaken motion still pending Court, have *7 determined whether we jurisdiction in first place. In such a case, a party effectively never able to have a district court reconsider its grant motion extend time file a notice of appeal.
In any event, Court’s intervening denial motion reconsideration has mooted this issue. We conclude that, circumstances presented, have appellate jurisdiction.
II.
“We review de novo district judgment granting motion dismiss pursuant Federal Rule Civil Procedure 12(b)(6), accepting all factual allegations as true.” City Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG F.3d (2d Cir. 2014). defines “any obligation or obligation transaction money, property, insurance, or services which are subject transaction are primarily personal, family, or household purposes, such has been reduced judgment.” 1692a(5). have held that, “at minimum, statute contemplates arisen rendition service purchase property other item value.” Beggs Rossi F.3d (2d Cir. 1998) (internal quotation mark omitted).
Although have not previously occasion to address theft constitutes “debt” for purposes FDCPA, several our sister circuits have addressed question unanimously held liability deriving from theft or torts does not constitute within meaning See Fleming v. Pickard , 581 F.3d 922, 926 (9th Cir. 2009) (“[W]e have little difficulty concluding Defendants’ cause action against for wrongful conversion does not, matter law, constitute for FDCPA.”); Hawthorne v. Mac Adjustment, Inc. , 140 F.3d 1367, 1371 (11th Cir. 1998) (“[T]he FDCPA triggered only when an obligation to pay arises out specified ‘transaction’ . Because Hawthorne’s obligation pay Mac Adjustment for damages arising out an accident does arise out any consensual or business dealing, plainly does constitute ‘transaction’ under FDCPA.”); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C. 111 F.3d 1326 (7th Cir. 1997) (“[A]lthough thief undoubtedly pay goods or services he steals, limits its reach those obligations arising consensual transactions, where parties negotiate contract consumer ‐ related goods services.”); Zimmerman v. HBO Affiliate Grp. 834 F.2d (3d Cir. 1987) (“[N]othing statute legislative history leads us believe Congress intended equate asserted tort liability asserted debt.”). Each *9 court reasoned that “transaction” from obligation pay money arises must, by definition, one that is consensual nature. join our sister circuits and hold that money owed as
result of is not an “obligation obligation of money transaction” therefore, “debt” FDCPA. 15 1692a(5). Such plainly is one “arisen result rendition service purchase property other item value.” Beggs 145 F.3d at 512.
Applying this holding, conclude Beauvoirs have plausibly within meaning See Ashcroft Iqbal U.S. 662, (2009). alleges only conclusory terms existence “consumer debt.” J.A. 11– 12. This threadbare recital contradicted by April letter Israel, attached exhibit Beauvoirs’ complaint, stating “the consumption unmetered gas,” J.A. National Grid’s May state ‐ complaint, alleging “diverted consumed unmetered natural gas means unlawfully tampering [National Grid’s] gas meter, ” J.A. 54. See Iqbal *10 U.S. at 678 (“Threadbare recitals of the elements of cause of action, supported by mere conclusory statements, do not suffice.”). [4]
This not mean that we accept the allegation of true. As the Court observed, “the Court need not determine the Beauvoirs are are actually liable National Grid for theft. What matters in the context of FDCPA claim the asserted basis the pay.” [5] are correct that defendant may evade protections of *11 merely framing basis obligation terms theft tort. By same token, however, plaintiff impose burdens FDCPA obligation outside scope statute.
CONCLUSION hold money
“obligation transaction” therefore,
For reasons set forth above, AFFIRM Court’s August judgment.
[*] Clerk directed amend official caption conform above.
[1] Section 1692g(a) provides: Within five days after the initial communication with consumer connection with the collection any debt, debt collector shall, unless the following information is contained the initial communication or the consumer paid the debt, send the consumer written notice containing— (1) the amount the debt; (2) the name the creditor whom the debt owed; (3) statement unless the consumer, within thirty days after receipt the notice, disputes the validity the debt, or any portion thereof, the debt will be assumed be valid the debt collector; (4) statement if consumer notifies debt collector writing within thirty ‐ day period debt, any portion thereof, disputed, debt collector will obtain verification debt copy judgment against consumer and copy such verification judgment will mailed consumer debt collector; and (5) statement that, upon consumer’s written request within thirty day period, collector will provide name address original creditor, if different current creditor.
[2] Sections 1692e(5) (10) provide:
[3] See also Coretti Lefkowitz F. Supp. (D. Conn. 1997) (“A claim ‘debt’ under FDCPA.”).
[4] It well established that “[d]ocuments that are attached complaint incorporated in by reference are deemed part of pleading and may considered.” Roth v. Jennings , 489 F.3d 499, 509 (2d Cir. 2007). Furthermore, we may take judicial notice fact state complaint contained certain statements, albeit “not truth matters asserted.” Id. ( internal quotation marks and emphasis omitted); see also Shuttlesworth v. City Birmingham , 394 U.S. 147, 157 (1969) (“As respondent suggests, we may properly take judicial notice record in [separate] litigation between same parties who are now before us.”); In re Thelen LLP , 736 F.3d 213, 223 n.13 (2d Cir. 2013) (“This panel taken judicial notice arguments raised [a separate] appeal.”); Hirsch v. Arthur Andersen & Co. , 72 F.3d 1095 (2d Cir. 1995) (“[T]he Complaint ʹ s attenuated allegations control are contradicted both more specific allegations Complaint and by facts may take judicial notice.”); Kaggen I.R.S. F.3d (2d Cir. 1995) (“[T]his appropriately take judicial notice fact banks do send monthly statements customers and those statements tell customers whom their was paid what amounts.”).
[5] See, e.g. Zimmerman F.2d at (affirming dismissal brought plaintiff merely “ accused having illegally received microwave television signals” because plaintiff had within meaning FDCPA, even though plaintiff “no antenna his roof” wires neighbor’s antenna were “not connected anything” (emphasis supplied)).
[6] Cf. Coretti F. Supp. at (“Plaintiff correct collector cannot escape provisions using alternative means collecting debt, such through proceeding. However, there must debt.”).