OPINION AND ORDER
Plaintiff David Sussman (“Suss-man”) commenced this action against Defendant I.C. System, Inc. (“Defendant” or “I.C.”) alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA” or the “Act”) and Section 399-p of the New York General Business Law (“GBL”). Doc. 1 (“Compl.”) ¶¶ 39-48. Before the Court is I.C.’s Motion to Dismiss the Complaint for failure to state a claim.
I. Factual Background
Plaintiff is a New York citizen residing in Monsey, New York. (Compl. ¶ 9.) Defendant is a collection agency with its principal place of business in Minnesota. (Id. ¶ 11.) Plaintiff alleges that from on or about October 1, 2011 to the date of the filing of the Complaint, January 10, 2012, in an attempt to collect a debt for home telephone bills which Plaintiff did not owe, Defendant placed over 50 calls to Plaintiffs residential telephone lines without Plaintiffs consent. (Id. ¶ 19.) Defendant placed these calls using an automatic dial
Plaintiff further alleges that from three years prior to the date of the filing of the Complaint to January 10, 2012, Defendant used the automatic dialing-announcing device to place over 100,000 calls to thousands of persons in New York. (Id. ¶ 22.) In these calls, Defendant hung up either prior to or after the phone was picked up by a person or answering device, and otherwise did not identify the address of the persons on whose behalf the calls were being made. (Id.)
II. Legal Standard for a Motion for Judgment on the Pleadings
Rule 12(c) provides that “[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The Court applies the same standard of review to a Rule 12(c) motion as it does to a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6). Cleveland v. Caplaw Enters.,
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiffs favor. Famous Horse Inc. v. 5th Ave. Photo Inc.,
III. Plaintiffs New York Law Claim is Not Preempted by the TCPA
Plaintiff alleges that Defendant’s calls violated New York GBL § 399-p, which requires that any person using an automatic dialing-announcing device state at the beginning of the call the nature of the call and the name, address and telephone number of the person on whose behalf the message is being transmitted. N.Y.G.B.L. § 399-p(3). Defendant argues that GBL
Federal law can preempt state law if Congress expresses its intent to preempt the law through explicit statutory language or, in the absence of explicit statutory language, if the state law regulates conduct in a field that Congress intended the federal government to occupy exclusively (“field preemption”) or if state law directly conflicts with federal law (“conflict preemption”). See N.Y. Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
a. Presumption Against Preemption
Courts addressing claims of preemption start from the presumption that Congress does not intend to supplant state law. Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist.,
Defendant argues that the Court should not apply the presumption against preemption here because telecommunications is an area that has long had a “federal presence.” (Def.’s Mem. L. at 16.) However, the Supreme Court held in Wyeth that “[t]he presumption [against preemption] ... accounts for the historic presence of state law but does not rely on the absence of federal regulation.” Wyeth,
The Court finds that the intention of Congress in enacting the TCPA was not to preempt state laws, but rather to regulate the telecommunications industry concurrently with the states, which “have a long history of regulating telemarketing practices.” In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, Report and Order, 18 F.C.C.R. 14014, 14060-62 (2003) (noting that “states have historically enforced their own state statutes within, as well as across state lines”). As the Second Circuit has held, “[t]he legislative history indicates that Congress intended the TCPA to provide ‘interstitial law preventing evasion of state law by calling across state lines.’ Congress thus sought to put the TCPA on the same footing as state law, essentially supplementing state law where there were perceived jurisdictional gaps.” Gottlieb v. Carnival Corp.,
b. No Express Preemption in the TCPA
Subsection (f) of the TCPA is the only provision in the statute which speaks to the issue of preemption. It states:
(f) Effect on State law. (1) State law not preempted. Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits: (A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements; (B) the use of automatic telephone dialing systems; (C) the use of artificial or prerecorded voice messages; or (D) the making of telephone solicitations.
47 U.S.C. § 227(f)(1). Although Defendant concedes that § 399-p is not expressly preempted by the TCPA, it makes two arguments in favor of preemption. First, Defendant argues that because GBL § 399-p attempts to impose more restrictive requirements on interstate calls into New York than are imposed by the TCPA, it is preempted.
The Court finds that nothing in the savings clause, nor any other provision in the TCPA, expressly preempts a state law such as § 399-p that regulates interstate communications. Moreover that the TCPA “saves” certain state laws does not suggest, by negative implication, that other state laws not specifically “saved” by subsection (f) are preempted by the federal law. In Drake v. Laboratory Corp. of Am. Holdings,
Similarly, here, the legislative history indicates that Congress did not intend to preempt state law through the passage of the TCPA. To the contrary, “[t]he legislative history indicates that Congress intended the TCPA to provide ‘interstitial law preventing evasion of state law by [debt collectors and telemarketers] calling across state lines.’ ” Gottlieb,
c. Congress did not Impliedly Preempt GBL § 399-p
In the absence of express statutory language, state law is preempted “where Congress has manifested an intent to ‘occupy the field’ in a certain area,” or where the state law actually conflicts with the federal law. Niagara Mohawk Power Corp.,
With respect to field preemption, for the reasons discussed above, the Court finds that Congress did not intend to supplant state law, but rather, to provide interstitial law preventing evasion of state law by parties making interstate calls. See Gottlieb,
Although Defendant concedes that preemption does not “fall[ ] within [any] of the three established criteria set out in Niagara Mohawk,” Def.’s Reply Mem. L. at 5, it argues that these three tests for preemption are not the exclusive tools for deter
Having found that Congress did not expressly or impliedly preempt state law through the enactment of the TCPA, the Court denies Defendant’s motion to dismiss Plaintiffs New York claim on that ground.
IV. Plaintiffs FDCPA Claims
Defendant argues that Plaintiff has failed to state a claim under the FDCPA. (Def.’s Mem. L. at 17.) In arguing for dismissal, Defendant relies heavily upon extrinsic evidence, including the affidavit of Ryan Bacon and the exhibits attached thereto. However, for the reasons discussed above, the Court declines to consider matters outside the pleadings in ruling
a. The Complaint States a Claim Under 15 U.S.C. § 1692c(c)
Section 1692c(c) of the FDCPA provides that “[i]f a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt.” 15 U.S.C. § 1692c(e). The statute further provides that if such notification is made by mail, the notification “shall be complete upon receipt.” Id. Here, Plaintiff alleges that on or about November 4, 2011, he informed Defendant in writing that he did not owe any debt and instructed Defendant to stop harassing him. (Compl. ¶ 21.) Plaintiff further claims that Defendant continued to call him until January 10, 2012. (Id. ¶¶ 19, 21.) Accordingly, Plaintiff has sufficiently stated a claim under § 1692c(c).
Defendant argues that Plaintiffs claim is barred by the “bona fide error defense,” which provides that “[a] debt collector may not be held liable in any action ... if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). Defendant supports its bona fide error defense by pointing to extrinsic evidence that Plaintiffs dispute of the debt was entered into Defendant’s “ICE-System” on the morning of November 23, 2011. (Def.’s Mem. L. at 20.) Defendant argues that the ICE-System is not linked to the Automatic Dialer System and that information from the ICE-System is transmitted overnight to the dialer system. (Id.) Defendant states that it is entitled to the bona fide error defense because its records indicate that the last three phone calls made to Plaintiff were all made after receipt and entry of Plaintiffs letter on the morning of November 23, 2011, and that no more calls were made to Plaintiff after that date. (Id.) On a motion for judgment on the pleadings, however, the Court will not consider extrinsic evidence. Moreover, even if the Court were to consider the materials submitted by Defendant, Plaintiff correctly argues that an issue of fact exists regarding whether the one-day lag built into Defendant’s system qualifies as a bona fide error. See Bank v. Cooper, No. 08 Civ. 3936(JBW),
b. The Complaint States a Claim Under 15 U.S.C. § 1692d(5) .
Section 1692d 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 provision provides a nonexhaustive list of conduct that would violate the statute, including “[c]ausing a telephone to ring ... repeatedly or continuously with intent to annoy, abuse, or harass.” Id. § 1692d(5). To state a claim under § 1692d(5), Plaintiff is only required to plead enough facts to show that it is plausible that IC caused his telephone to ring repeatedly or continuously with the intent to annoy, abuse, or harass. Here, Plaintiff has alleged receiving over 50 calls from IC over an approximately three month period, all allegedly relating to the collection of a debt that Plaintiff did not owe. (Compl. ¶ 19.) Plaintiff further alleges that these phone calls persisted even after Plaintiff informed IC in writing that he did not owe
Defendant argues that Plaintiff cannot state a claim because IC’s “unanswered” calls to Plaintiff were “made during reasonable hours and times.” (Def.’s Mem. L. at 19.) Defendant’s argument that the calls at issue were made during reasonable hours is based upon extrinsic evidence not included in or integral to the Complaint, and which will therefore not be considered by the Court. Additionally, the Court notes that Defendant’s assertion that IC’s calls were all “unanswered” is contradicted by the allegations in the Complaint. Plaintiff alleges that Defendant hung up “either prior to or as soon as Plaintiff, members of Plaintiffs household or Plaintiffs voice mail answered the call.” (Compl. ¶ 19.) Plaintiff therefore alleges that at least some of the more than 50 phone calls were “answered” by Plaintiff or a member of Plaintiffs household.
In support of its motion, Defendant relies heavily on a recent Eastern District of New York case, Chavious v. CBE Group, Inc., 10 Civ. 1293(JS)(ARL),
c. The Complaint States a Claim Under 15 U.S.C. § 1692d(6)
Section 1692d(6) prohibits “the placement of telephone calls without meaningful disclosure of the caller’s identity.” 15 U.S.C. § 1692d(6). Here, Plaintiff alleges that Defendant “hung up either prior to or as soon as Plaintiff, members of Plaintiffs household or Plaintiffs voice mail answered the call.” (Compl. ¶ 19.) Accordingly, if, as Plaintiff claims, Defendant called Plaintiff and hung up the phone, common sense dictates that Defendant did not provide “meaningful disclosure of [its] identity,” as required by § 1692d(6). See Langdon v. Credit Mgmt., L.P., No. 09-3286(VRW),
d. The Complaint Does Not State a Claim Under 15 U.S.C. §§ 1692e(2)(A) or e(10)
Section 1692e of the FDCPA prohibits “any false, deceptive, or misleading representation or means in connection with the collection of any debt[,]” and provides a non-exhaustive list of example violations. 15 U.S.C. § 1692e. In particular, Plaintiff alleges that Defendant violated §§ 1692e(2)(A), which prohibits “[t]he false representation of the character, amount, or legal status of any debt,” and 1692e(10), which prohibits “[t]he use of any false representation or deceptive means to collect ... any debt.”
Courts in the Second Circuit evaluate claims under the FDCPA according to how the “least sophisticated consumer” would understand the communication. See Ellis v. Solomon & Solomon, P.C.,
Here, Plaintiff alleges that Defendant “hung up either prior to or as soon as” Plaintiff, a member of his household,
e. The Complaint States a Claim Under 15 U.S.C. § 1692e(ll)
Plaintiff alleges that Defendant violated § 1692e(ll), which prohibits the failure to disclose in the “initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose” and in “subsequent communications that the communication is from a debt collector.” 15 U.S.C. § 1692e(11). The FDCPA defines the term “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). Here, Plaintiff alleges that Defendant hung up either prior to or as soon as the phone was answered. (Compl. ¶ 19.) However, Plaintiff cites case law holding that factual allegations that a defendant calls plaintiff and hangs up “provides sufficient factual support” for a claim under § 1692e(ll). (PL’s Mem. L. at 28) (citing Langdon,
No court within the Second Circuit appears to have answered the question of whether a “communication” occurs where defendant initiates a call and then hangs up “either prior to or as soon as” the call is answered by plaintiff. However, in Foti v. NCO Fin. Sys., Inc.,
The situation here, of course, is different. Plaintiff does not allege how he knew that I.C. was a debt collector, nor does he indicate how he identified Defendant.
The Foti court also based its decision on the concern that a more narrow reading of the term “communication” would “create a significant loophole in the FDCPA, allowing debtors to circumvent ... provisions of the FDCPA that have a threshold ‘communication’ requirement.” Id. at 657. To interpret the FDCPA as not covering calls that are disconnected prior to or as soon as the receiving party picks up the phone would permit debt collectors to escape liability by calling consumers however often they wish and simply hanging up as soon as the consumer answers the phone. “Such a reading is inconsistent with Congress’s intent to protect consumers from ‘serious and widespread’ debt collection abuses.” Id. at 657-58.
Thus, applying the reasoning used by the Foti court and accepting as true all factual allegations and drawing all reasonable inferences in Plaintiffs favor, the Court finds that the calls at issue constitute “communications” under the FDCPA. See Cerrato v. Solomon & Solomon,
f. The Complaint Does Not State a Claim Under 15 U.S.C. § 1692f
Section 1692f of the FDCPA prohibits a debt collector from using any “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. The statute lists eight non-exhaustive examples of § 1692f violations. However, “conduct that may be deemed ‘unfair or unconscionable’ is not limited to the acts enumerated in subsections (1) through (8).” Foti,
Here, Plaintiff does not allege any “unfair or unconscionable” acts listed within subsections (1) through (8) of § 1692f, however, this alone is not fatal to Plaintiffs claim because § 1692f permits courts to sanction improper conduct that is not specifically addressed in the FDCPA. However, Plaintiffs Complaint is deficient because his allegations fail to “identify any misconduct beyond that which Plaintiff[] assert[s] violate[s] other provisions of the FDCPA.” Id. (citing Tsenes v. Trans-Cont’l Credit & Collection Corp.,
Y. Conclusion
For the reasons set forth above, Defendant’s motion to dismiss is DENIED with
The parties are to appear for a pre-trial conference on April 4, 2013, at 10:00 a.m. It is SO ORDERED.
Notes
. Defendant's moving papers indicate that it moves to dismiss "and/or” for summary judgment pursuant to Rules 12(b)(6) and 56. (Def.'s Mem. L. at 5.) In support of its motion, Defendant submits the affidavit of Ryan Bacon, which includes accompanying exhibits. Doc. 21. Plaintiff filed a response to Defendant’s statement of material facts pursuant to Local Rule 56.1, but objected to Defendant’s motion for summary judgment, arguing that summary judgment is "entirely inappropriate prior to discovery” and that Defendant’s motion "violates this Court’s order.” (PL’s 56.1 Stmt, at In. 1.) Although Defendant moves to dismiss pursuant to Rule 12(b)(6), because the pleadings are closed, the Court will treat Defendant’s motion to dismiss as one for judgment on the pleadings pursuant to Rule 12(c). Under Rule 12(c), the court may consider, " 'in its discretion and upon notice to all parties,’ ” materials outside the pleadings. Sellers v. M.C. Floor Crofters, Inc.,
. The TCPA prohibits the use of "automatic telephone dialing systems” unless the call is exempted by the FCC. 47 U.S.C § 227(b)(1)(B). The FCC exempts from the TCPA’s statutory prohibition against prerecorded calls any call "made to any person with whom the caller has an established business relationship at the time the call is made.” 47 C.F.R. § 64.1200(a)(2)(iv). Additionally, the FCC exempts any call "made for a commercial purpose but does not include or introduce an unsolicited advertisement or constitute a telephone solicitation.” 47 C.F.R. § 64.1200(a)(2)(iii). The FCC has held that these two exemptions "apply where a third party places a debt collection call on behalf of the company holding the debt.” Meadows v. Franklin Collection Serv., Inc.,
. In support of its argument for field preemption, Defendant also points to the statements of the TCPA's co-sponsor. Senator Hollings, who stated that “[p]ursuant to the general preemptive effect of the Communications Act of 1934, State regulation of interstate communications, including interstate communications initiated for telemarketing purposes, is preempted.” (Def.'s Mem. L. at 11.) However, the Supreme Court has recently held, in a decision addressing a statement made by Senator Hollings in support of the TCPA, that "the views of a single legislator, even a bill’s sponsor, are not controlling.” Mims,
. Because Defendant has failed to satisfy the Court that § 399-p is preempted under any of the three types of preemption outlined by the Supreme Court, the Court need not address Plaintiff's argument that his claim is expressly "saved” under Section 227(f)(1)(B) of the TCPA. 47 U.S.C. § 227(f)(1)(B) ("[Njothing in this section ... shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits ... the use of automatic telephone dialing systems.”); see also Pl.'s Mem. L. at 19.
. The Court also notes that Defendant’s motion for dismissal on the basis of preemption relies upon certain facts which are hot apparent from the face of the Complaint. For example, Defendant argues that because GBL § 399-p imposes more restrictive requirements on interstate calls into New York than are imposed by the TCPA, Plaintiff’s claim is preempted by that federal act. (Def.’s Mem. L. at 16.) Defendant’s argument therefore relies on the assumption that the calls at issue here were interstate. However, although Plaintiff, a New York resident, alleges that Defendant is a Minnesota corporation, he does not allege that the calls placed to Plaintiff's residential telephone lines were initiated in Minnesota. (Compl. ¶¶ 9, 11, 19-23.) Defendant has submitted extrinsic evidence suggesting that the calls at issue were made from Minnesota, Def.’s Mem. L. at 6 n. 7, however, on a motion for judgment on the pleadings pursuant to Rule 12(c), the Court declines to consider materials outside the pleadings. See supra note 1. Accordingly, although the Court finds that New York’s regulation on interstate automated calls is not preempted by the TCPA, even if the Court had found in favor of preemption, Defendant's motion would still fail, as Plaintiff has not alleged that the calls at issue here were interstate.
. In support of his motion, Defendant points to case law holding that a debt collector's failure to leave a voicemail message, without more, does not amount to a § 1692d(6) violation. (Def.’s Mem. L. at 19-20) (citing Chavious,
. Logically, one would assume either that (i) Plaintiff had at least one conversation with Defendant in which Defendant identified itself as a debt collector, or (ii) Plaintiff was somehow able to identify Defendant from its return telephone number. However, no such allegations are made.