Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________ o
N 07-CV-1564 (JFB) (AKT) _____________________
H AROLD P. S CHROER ,
Plaintiff, VERSUS
E MIL N ORSIC & S ON , I NC ., AND C APITAL O NE F INANCIAL C ORPORATION , Defendants.
___________________
MEMORANDUM AND ORDER
December 5, 2007
___________________
J OSEPH F. B IANCO , District Judge: defamation, and unfair and deceptive business
practices.
Pro se plaintiff Harold P. Schroer (“plaintiff”) brought this action against Norsic moves to dismiss plaintiff’s contractor Emil Norsic and Son, Inc. federal claims in the Amended Complaint (the (“Norsic”) and Capital One Financial “complaint”) for failure to state a claim Corporation (“Capital One”) in connection pursuant to Rule 12(b)(6) of the Federal Rules with a dispute regarding a $543.75 charge to of Civil Procedure. Norsic also seeks to have plaintiff’s Mastercard after plaintiff hired the Court, if the federal claims are dismissed, Norsic to clean the septic tank at his home. decline to exercise subject matter jurisdiction By Stipulation, filed August 7, 2007, the case over the remaining state claims. For the against Capital One was dismissed with reasons set forth below, Norsic’s motion to prejudice. dismiss the federal claims is granted.
Specifically, given the facts in the complaint, With respect to the remaining defendant, there is no plausible claim that can be brought Norsic, plaintiff attempts to assert federal under federal law with respect to the charge claims under the “U.S. Consumer Protection submitted by Norsic to Capital One in Act,” the Fair Debt Collection Practices Act, connection with work at plaintiff’s home. The 15 U.S.C. § 1692 et seq. (“FDCPA”), and the Court declines to retain jurisdiction over Fair Credit Reporting Act, 15 U.S.C. § 1681 plaintiff’s remaining state law claims, and et seq. (“FCPA”). Plaintiff also seeks to bring dismisses such claims without prejudice. state claims for fraud, breach of contract,
I. B ACKGROUND B. Procedural History A. Facts Plaintiff filed the complaint on April 17, 2007. By letter dated May 7, 2007, plaintiff The facts are drawn from the complaint requested leave to amend his complaint. On and taken as true for the purposes of this May 8, 2007, the Court granted leave to motion. amend pursuant to Rule 15 of the Federal
Rules of Civil Procedure. On May 30, 2007, Plaintiff’s complaint seeks compensatory the Amended Complaint was filed. On July damages against Norsic for a breach of 27, 2007, Norsic filed its motion to dismiss. contract in the amount of $419.00. Plaintiff On August 7, 2007, a stipulation of dismissal also seeks the following: (1) compensatory with prejudice was filed as to Capital One. damages in an unspecified amount for On September 25, 2007, plaintiff filed his defamation; (2) punitive damages in an opposition to the motion. On October 30, unspecified amount; and (3) a permanent 2007, at plaintiff’s request, oral argument was injunction by which the Court would order held. In a letter dated November 1, 2007, that Norsic follow certain procedures in plaintiff submitted a letter supplementing his performing septic tank work and charging previous submission. All of plaintiff’s customers. submissions have been considered by the
Court.
With respect to the core dispute regarding Norsic’s work on the septic tank, although II. S TANDARD FOR M OTION TO D ISMISS plaintiff acknowledges in the complaint that
he authorized a charge to his Capital One In reviewing a motion to dismiss pursuant credit card for work Norsic was to perform on to Federal Rule of Civil Procedure 12(b)(6), his septic tank (based on a estimate of $250), the court must accept the factual allegations he alleges (1) that Norsic overcharged him for set forth in the complaint as true, and draw all the work done and thereby obtained payment reasonable inferences in favor of the plaintiff. on his card for $543, (2) that Capital One See Cleveland v. Caplaw Enter. , 448 F.3d relied on the misrepresentations of Norsic 518, 521 (2d Cir. 2006); Nechis v. Oxford regarding the amount owed, and (3) that this Health Plans, Inc. , 421 F.3d 96, 100 (2d Cir. resulted in “defamation” of his credit. 2005). The plaintiff must satisfy “a flexible
‘plausibility standard.’” Iqbal v. Hasty , 490 F.3d 143, 157-58 (2d Cir. 2007). “[O]nce a claim has been stated adequately, it may be $419.00 by combining the alleged overpayment The complaint appears to calculate damages at consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly supported by showing any set of facts , 127 S.Ct. 1955, 1974 (May 21, 2007). The Court, for the cleaning of plaintiff’s septic tank in the therefore, does not require “heightened fact amount of $225.64, $75.00 in damages to refill some dirt that was excavated, and $78.66 as a pleading of specifics, but only enough facts to separate overcharge for claiming to remove state a claim for relief that is plausible on its sewage in excess of what was actually removed face.” Id. Moreover, as the plaintiff is from the tank, although the sum of these figures is appearing , the Court shall “‘construe actually $379.30. (Compl. at 2.) *3 [his complaint] broadly, and interpret [it] to directly or indirectly, debts owed or due or raise the strongest arguments that [it] asserted to be owed or due another.” 15 suggests.’” Weixel v. Bd. of Educ. of the City U.S.C. § 1692a(6). Based upon this of N.Y. , 287 F.3d 138, 145-46 (2d Cir. 2002) definition, the Second Circuit has explained: (quoting Cruz v. Gomez , 202 F.3d 593, 597
(2d Cir. 2000)). In connection with a motion As a general matter, creditors to dismiss under Rule 12(b)(6), the Court may are not subject to the FDCPA. only consider “facts stated in the complaint or However, a creditor becomes documents attached to the complaint as subject to the FDCPA if the exhibits or incorporated by reference.” creditor “in the process of Nechis, 421 F.3d at 100; accord Kramer v. collecting his own debts, uses Time Warner Inc., 937 F.2d 767, 773 (2d Cir. any name other than his own 1991). which would indicate that a
III. D ISCUSSION third person is collecting or attempting to collect such Norsic moves to dismiss the federal claims debts.” 15 U.S.C. § 1692a(6).
for failing to state a cause of action given the A creditor uses a name other allegations in the complaint, which Norsic than its own when it uses a argues establish that no federal claim exists name that implies that a third against it as a matter of law. Norsic further party is involved in collecting argues that the Court should decline to its debts, “pretends to be exercise supplemental jurisdiction over the someone else” or “uses a state claims. As set forth below, the Court p s e ud on ym o r al i a s . ” finds that all of plaintiff’s purported federal Villarreal v. Snow , [No. 95 C claims fail as a matter of law, and declines to 2484,] 1996 WL 473386, at *3 exercise pendent jurisdiction over the (N.D. Ill. Aug. 19, 1996). remaining state claims.
Maguire v. Citicorp Retail Servs., Inc. , 147 A. Federal Claims F.3d 232, 235 (2d Cir. 1998); see also Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Plaintiff argues that federal claims exist Cir. 2002) (“The FDCPA establishes certain against Norsic under the “U.S. Consumer rights for consumers whose debts are placed Protection Act,” the FDCPA, and the FCRA. in the hands of professional debt collectors for
collection, and requires that such debt The FDCPA prohibits a “debt collector” collectors advise the consumers whose debts from using “any false, deceptive, or they seek to collect of specified rights.”). misleading representation or means in
connection with the collection of any debt.” The purpose of the FCRA is “to require 15 U.S.C. § 1692e. A “debt collector” is that consumer reporting agencies adopt defined as “any person who uses any reasonable procedures for meeting the needs instrumentality of interstate commerce or the of commerce for consumer credit . . . in a mails in any business the principal purpose of manner which is fair and equitable to the which is the collection of any debts, or who consumer with regard to the confidentiality, regularly collects or attempts to collect, accuracy, relevancy, and proper utilization of *4 such information.” 15 U.S.C. § 1681b. Thus, factual circumstances described in the “[t]he FCRA places distinct obligations on complaint. To hold otherwise would allow three types of entities: consumer reporting anyone who believed they were overcharged agencies, users of consumer reports, and on a credit card by a contractor or any other furnishers of information to consumer type of service provider to refuse to pay the reporting agencies.” Redhead v. Winston & credit card company, and then seek to sue the Winston, P.C., No. 01 Civ. 11475 (DLC), contractor for any ensuing credit problems 2002 WL 31106934, at *3 (S.D.N.Y. Sept. 20, caused by the consumer’s refusal to pay the 2002) (citations omitted). credit card company. There is no language in
the FDCPA, the FCRA, or any other federal In the instant case, based upon the statute that provides for a federal cause of allegations in the complaint, it is abundantly action against the service provider in such a clear that there can be no cause of action situation.
under either of these statutes (or any other
federal law) against Norsic for the acts alleged At oral argument and again in a in the complaint. Plaintiff concedes in his supplemental submission, plaintiff argues that complaint that, after being given an estimate the Supreme Court’s decision in Dun & that the services by Norsic would be Bradstreet, Inc. v. Greenmoss Builders, Inc., approximately $250, he gave them his Capital 472 U.S. 749 (1985), provides a federal cause One credit card to bill him, and Norsic of action and, thus, a basis for federal received payment. Norsic’s only activity in
the complaint with respect to plaintiff’s credit card was to charge plaintiff for $543 for work performed, which plaintiff disputes was unjustified given the estimate and the actual Norsic did not act as a creditor extending credit to plaintiff, never sought to collect any work done. According to the complaint, of a federal statute under that particular name and, Act” without any citation. The Court is unaware jurisdiction under the “U.S. Consumer Protection thus, it is unclear to the Court the precise statute that plaintiff is attempting to invoke. To the In the complaint, plaintiff also alleges debt on its own behalf or through a collection extent plaintiff is referencing the federal agency, never furnished any information to Telephone Consumer Protection Act, 47 U.S.C. § 227, et. seq. , or the Bankruptcy Abuse Prevention any credit reporting agency, never used any and Consumer Protection Act of 2005, 18 U.S.C. consumer report information of the plaintiff, § 158(d), neither of those statutes provide any and never took any action at all as it relates to cause of action under the facts as alleged in this plaintiff’s credit standing. Instead, the case and have no applicability. As noted above, complaint alleges that Capital One reported the Court has considered whether the allegations him to collection agencies when he disputed in the complaint could potentially provide a cause the credit card bill. Plaintiff seeks to hold of action under any federal statute and finds that Norsic responsible for these issues with his no such claim exists as a matter of law on this credit because, if Norsic did not require him complaint. Finally, to the extent that plaintiff is to pay for the services (which he alleges were referring to the New York Consumer Protection Act, N.Y. General Business Law §§ 349 and 350, unjustified), he would not have had the credit as set forth infra , the Court declines to exercise problems with Capital One. However, there is supplemental jurisdiction over such claims and, no federal claim under the FDCPA or the therefore, plaintiff can attempt to pursue any such FCRA for such a theory of liability given the claim in state court. *5 jurisdiction over this case. However, fraud, breach of contract, defamation, and plaintiff’s reliance on the Dun & Bradstreet unfair and deceptive business practices. “In case is misplaced. That case involved a the interest of comity, the Second Circuit defamation action by a construction contractor instructs that ‘absent exceptional against a credit reporting agency that circumstances,’ where federal claims can be allegedly issued a false credit report to a disposed of pursuant to Rule 12(b)(6) or contractor’s creditors. 472 U.S. at 751. summary judgment grounds, courts should Moreover, no federal statute was implicated; ‘abstain from exercising pendent rather, it was a state defamation claim brought jurisdiction.’” Birch v. Pioneer Credit in Vermont state court. Id. at 752. The Recover, Inc ., No. 06-CV-6497 (MAT), 2007 Supreme Court was addressing whether the U.S. Dist. LEXIS 41834, at *15 (W.D.N.Y. First Amendment provided certain protections June 8, 2007) (quoting Walker v. Time Life from such a state defamation claim. Id. at Films, Inc. , 784 F.2d 44, 52 (2d Cir. 1986)). 753. Thus, the Dun & Bradstreet case Therefore, in the instant case, the Court, in its provides no support for plaintiff in his attempt discretion, “decline[s] to exercise to demonstrate that a federal claim exists supplemental jurisdiction over [plaintiffs’] based upon the alleged facts in this case. state law claims [because] it has dismissed all
claims over which it has original jurisdiction.” In short, having carefully examined the Kolari v. N.Y. Presbyterian Hosp. , 455 F.3d
complaint, the Court finds that the purported 118, 121-22 (2d Cir. 2006) (quoting 28 U.S.C. federal claims must fail as a matter of law § 1367(c)(3)) (internal quotation marks because plaintiff cannot state a cause of omitted) (“If the federal law claims are action. Furthermore, because the Court finds, dismissed before trial . . . the state claims for the reasons discussed supra , that any should be dismissed as well.”); Karmel v. Liz amendment of plaintiff’s complaint would be Claiborne, Inc ., No. 99-CV- 3608 (WK), 2002 futile (given the facts already contained in the U.S. Dist. LEXIS 12842, at *10-*11 complaint), the claim is dismissed without (S.D.N.Y. July 15, 2002) (“Where a court is leave to replead the claim. See Dluhos v. reluctant to exercise supplemental jurisdiction Floating and Abandoned Vessel, Known as because of one of the reasons put forth by § N.Y. , 162 F.3d 63, 69 (2d Cir. 1998) (finding 1367(c), or when the interests of judicial that a litigant may be denied leave to economy, convenience, comity and fairness to amend where such an amendment would be litigants are not violated by refusing to futile). entertain matters of state law, it should decline
supplemental jurisdiction and allow the B. State Law Claims plaintiff to decide whether or not to pursue the matter in state court.”). Moreover, the Second In addition to the federal claims, plaintiff Circuit has recognized that the dismissal of asserts several state law claims, including remaining state claims after the dismissal of
federal claims is particularly appropriate where as here, the resolution of the state law Because plaintiff is a New York resident and claims entails resolving additional issues of Norsic is incorporated under New York law, and fact. N.Y. Mercantile Exch., Inc. v. because less than $75,000 in damages is being Intercontinental Exch., Inc. , 497 F.3d 109, sought, there is no diversity jurisdiction pursuant 119 (2d Cir. 2007). Accordingly, pursuant to to 28 U.S.C. § 1332 for the state law claims. *6 42 U.S.C. § 1367(c)(3), the Court declines to payment from the credit card company “was retain jurisdiction over the remaining state the basis for Capital One’s defaming my claims, and dismisses such claims, without integrity.” (Plaintiff’s November 1, 2007 prejudice. Letter to the Court, at 1.) Thus, the Court has
concluded that, given the concessions in the C. Leave to Replead Amended Complaint, no amendments can cure these pleading deficiencies and any Although plaintiff has not requested leave attempt to replead would be futile. See
to amend or replead his Amended Complaint Cuoco , 222 F.3d at 112 (“The problem with again, the Court has considered whether [plaintiff’s] cause[] of action is substantive; plaintiff should be given an opportunity to better pleading will not cure it. Repleading replead. The Second Circuit has emphasized would thus be futile. Such a futile request to that replead should be denied.”); see also Hayden
v. County of Nassau , 180 F.3d 42, 54 (2d Cir. A pro se complaint is to be 1999) (holding that if a plaintiff cannot read liberally. Certainly the demonstrate he is able to amend his complaint court should not dismiss “in a manner which would survive dismissal, without granting leave to opportunity to replead is rightfully denied”) . amend at least once when a
liberal reading of the IV. C ONCLUSION complaint gives any indication
that a valid claim might be For the reasons stated, defendant’s motion stated. to dismiss the federal claims is GRANTED in its entirety. The Court declines to retain Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. jurisdiction over plaintiff’s remaining state 2000) (quotations and citations omitted). law claims, and dismisses such claims without However, even under this liberal standard, this prejudice to plaintiff attempting to pursue Court finds that any attempt to amend the such claims in state court. The Clerk of the pleading in this case would be futile. As Court shall enter judgment accordingly and discussed supra, it is clear from the complaint close this case.
that Norsic’s only role was to submit a credit
card charge in connection with work done on
plaintiff’s home. Plaintiff again conceded this SO ORDERED.
point at oral argument and in his supplemental
submission to the Court, but seeks to create a ______________________ claim for alleged conduct for which no federal JOSEPH F. BIANCO cause of action exists – namely, that seeking United States District Judge Dated: December 5, 2007 In reaching this determination, the Court has Central Islip, NY reviewed all of the plaintiff’s submissions,
including the bills, letters, and other documents * * * that he attached to his opposition, all of which
confirm the futility of any amendment as to the
proposed federal claims.
Plaintiff is appearing , 3 Larboard
Drive, Southampton, New York 11968. The
attorney for defendants is Michael D. Tryon,
Esq., Tryon & Pascale, P.C., 1325 Franklin
Avenue, Suite 325, Garden City, New York
11530.