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Moses v. Law Office of Harrison Ross Byck

August 4, 2009

MARLENE MOSES, PLAINTIFF
v.
THE LAW OFFICE OF HARRISON ROSS BYCK, PC, WILLIAM SELTZER, DBG COLLECTION, INC., AND CACH, LLC DEFENDANTS



The opinion of the court was delivered by: James M. Munley United States District Court

MEMORANDUM

(Judge Munley)

Before the court for disposition is a motion to dismiss the instant action by CACH, LLC, which is based upon the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA" or "the Act"). The matter has been fully briefed and is ripe for disposition.

I. BACKGROUND

The instant action deals with alleged unfair debt collection practices by the defendants. A collection letter dated May 6, 2008 was sent by the Law Office of Harrison Ross Byck ("Law Office"), to Plaintiff Marlene Moses, indicating that they were retained to collect a debt of $8,245.67 on behalf of CACH, LLC. (Amended Complaint (Doc. 12), "Ex. A," "the Letter") (hereinafter "Complt."). The plaintiff avers that the Letter, signed with a facsimile signature of Attorney Byck, was a false, deceptive, and misleading representation under 15 U.S.C. § 1692e since Attorney Byck is apparently not an attorney at the Law Office, but rather is an employee of DBG Collection, Inc. ("DBG"). (Id. at ¶¶ 13-20). According to the plaintiff, DBG sent the allegedly misleading form letter, using the coercive influence that a law office might provide, in an attempt to collect the purported debt from her. (Id. at ¶ 21).

The plaintiff also alleges that two phone calls were placed to her residence by Defendant William Seltzer, who told her that "the sheriff would come and take the contents of her house if she did not pay the debt." (Id. at ¶¶ 25-27). Because Defendant Seltzer used a fictitious name when placing these calls, the plaintiff maintains that the Seltzer failed to meaningfully disclose his identity, in violation of 15 U.S.C. § 1692d(6). (Id. at ¶¶ 24, 28). Plaintiff also avers that Defendant CACH, LLC is vicariously liable for alleged violations of the FDCPA as the debt holder who enlisted DBG, the Law Office, and Seltzer as agents to collect the debt on behalf of CACH, LLC. (Id. at ¶¶ 29-31).

Subsequently, CACH, LLC filed a motion to dismiss pursuant to Federal Rule 12(b)(6) of the Federal Rules of Civil Procedure, bringing the case to its present posture. CACH , LLC primarily argues that it is not a "debt collector," as defined by 15 U.S.C. § 1692a, nor can it be held vicariously liable under the FDCPA, since it is a "creditor" for purposes of the Act. (Doc. 21, 22).

II. JURISDICTION

Because this case is brought pursuant to the FDCPA, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

III. STANDARD OF REVIEW

This case is before the court pursuant to defendants' motion to dismiss for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," or put another way, "nudged [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets Twombly to require the plaintiff to describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of" each necessary element of the claims alleged in the complaints. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35.

In relation to Federal Rule of Civil Procedure 8(a)(2), the complaint need only provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,'" Twombly, 550 U.S. at 555 (citation omitted). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232 (citation omitted). "Rule 8(a)(2) requires a 'showing' rather than a blanket assertion of an entitlement to relief." Id.

The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). To decide a motion to dismiss, a court generally should consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. See In re ...


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