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Sprague v. Neil

October 19, 2007

ROGER W. SPRAGUE PLAINTIFFS
v.
BURTON NEIL, ESQUIRE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

JUDGE SYLVIA H. RAMBO

MEMORANDUM

This case arises out of a dispute over whether Defendants, Citibank (South Dakota) N.A. ("Citibank") and Universal Bank, N.A. ("Universal"),*fn1 violated the statutory rights of Plaintiff Roger W. Sprague while attempting to collect credit card debt. Plaintiff claims that Citibank was abusive in its collection practices and seeks relief under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"), the Pennsylvania Fair Credit Extension Uniformity Act, 73 Pa. Stat. § 2270.1 ("FCEUA"), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. § 201-1 ("UTPCPL"). Before the court is Citibank's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Doc. 32.) Citibank argues that Plaintiff's claim for relief, brought under the FDCPA, must be dismissed because it is a creditor and therefore not subject to the terms of that statute. (Doc. 33 at 2.) Citibank also contends that the Plaintiff has no legal basis for asserting claims for relief under the FCEUA and UTPCPL and Citibank cannot be held derivatively liable through a theory of respondeat superior. (Id.) Because the court concludes that, as to Citibank, Plaintiff has failed to state a claim upon which relief may granted and cannot be held liable upon respondeat superior, the court will grant the instant motion for judgment on the pleadings.

I. Background

A. Factual Background*fn2

Plaintiff resides in York, Pennsylvania. (Doc. 1 ¶ 3.) Plaintiff signed an application for two credit card accounts dated August 12, 2001. (Doc. 1 ¶¶ 12, 13.) Plaintiff's first card was issued by Universal Bank (Doc. 1 Ex. 2) and the second card by Citi Cards (Doc. 1 Ex. 3). After receiving both cards, Plaintiff made charges to the cards but failed to make timely payments.

Universal merged into Citibank in January 2002. (Doc. 32 Ex. 1.) As a result of the merger, Citibank took control of Universal and Universal ceased to exist as an independent entity. (Doc. 32 Exs. 1-2.) Citibank is a national bank located in Sioux Falls, South Dakota. (Doc. 1 ¶ 10.) Citibank, on its own behalf, attempted to collect amounts due on Plaintiff's credit card accounts from Plaintiff. After these efforts were unsuccessful, Citibank hired the Burton Neil law firm and its lawyers to collect the debt owed by Plaintiff. Thereafter, the Burton Neil firm filed a civil action in Pennsylvania state court to collect this debt. (Doc. 1 ¶ 20.)

B. Procedural History

Plaintiff filed a pro se complaint in this court against all named Defendants*fn3 for engaging in abusive debt collection practices, including the filing of the state court law suit. Plaintiff obtained counsel (Doc. 11) who later withdrew (Doc. 31). Citibank filed this instant motion for judgment on the pleadings (Doc. 32) and a brief in support (Doc. 33). Plaintiff was ordered to file a brief in opposition to Citibank's motion for judgment on the pleadings by October 20, 2006.

(Doc. 36.) Current counsel for Plaintiff filed his notice of appearance on December 21, 2006. (Doc. 48.) Plaintiff was thereafter granted an extension to file briefs in opposition to four outstanding motions filed by Defendants in this case -- including the instant motion -- until April 3, 2007. (Doc. 70.) On March 27, 2007 this case was transferred to the undersigned. Plaintiff has failed to respond. This matter is ripe for disposition.

II. Legal Standard: 12(c) Motion for Judgment on the Pleadings

Under Federal Rule of Civil Procedure 12(c), once the pleadings are closed, a party may move for judgment on the pleadings "within such time as to not delay the trial." Fed. R. Civ. P. 12(c).*fn4 The standard of review for a motion for judgment on the pleadings is identical to that of the motion to dismiss under Federal Rule 12(b)(6). Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991) (citations omitted); Cannon v. United States, 322 F. Supp. 2d 636, 636 (W.D. Pa. 2004); Katzenmoyer v. City of Reading, 158 F. Supp. 2d 491, 496 (E.D. Pa. 2001).

The only notable difference between these two standards is that the court in a motion on the pleadings reviews not only the complaint but also the answer and written instruments attached to the pleadings. 2 Moore's Federal Practice Civil § 12.38 (2004). Despite this difference, courts in this circuit have consistently stated that the distinction between the two standards is "merely semantic." Christy v. We The People Forms & Serv. Ctrs., 213 F.R.D. 235, 238 (D.N.J. 2003); see Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 485 (E.D. Pa. 2004) ("A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is treated using the same standard as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).") (citing Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 376-77 (E.D. Pa. 1995)).

Therefore, just as required by a motion to dismiss, the court will accept as true the facts and inferences presented in the pleadings in the "light most favorable to the nonmoving party." Allah v. Al-Hafeez, 226 F.3d 247, 249 (3d Cir. 2000); Turbe, 938 F.2d at 428; see also Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005) (citations omitted); Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss, Bell Atlantic Corp., 127 S.Ct. at ...


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