Hallmark v. Cohen & Slamowitz, LLP

293 F.R.D. 410, 2013 WL 5178128, 2013 U.S. Dist. LEXIS 132120
CourtDistrict Court, W.D. New York
DecidedSeptember 16, 2013
DocketNo. 11-CV-842S
StatusPublished
Cited by2 cases

This text of 293 F.R.D. 410 (Hallmark v. Cohen & Slamowitz, LLP) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hallmark v. Cohen & Slamowitz, LLP, 293 F.R.D. 410, 2013 WL 5178128, 2013 U.S. Dist. LEXIS 132120 (W.D.N.Y. 2013).

Opinion

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

Seeking to represent a class of similarity situated individuals, Plaintiff Michael Hallmark brings this action against Defendants Cohen & Slamowitz, LLP (“C & S”) and Midland Funding, LLC (“Midland”). Hallmark alleges that Defendants violated the federal Fair Debt Collection Practices Act (“FDCPA”) in the course of attempting to collect a debt.

There are currently five motions before this Court, three of which were filed by Hallmark; he seeks to (1) certify this case as a class action, (2) amend his complaint, and (3) strike an affirmation submitted by C & S. For their part, each defendant has also moved for judgment on the pleadings, with Midland simply adopting the reasoning articulated in C & S’ motion.

As an initial matter, this Court must address Hallmark’s motion to amend his complaint. Defendants object, arguing, in essence, that the proposed amendments in the second amended complaint are futile. Nonetheless, Defendants have addressed the proposed amended complaint and they are therefore not prejudiced by this Court considering the amended pleading. Moreover, this Court finds that the proposed amendments do not materially alter the substantive [413]*413allegations in this case. Finding no “undue delay, bad faith or dilatory motive on the part of the movant,” see Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir.2002) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), this Court will grant Hallmark’s motion and construe the motions for judgment on the pleadings as against the second amended complaint. See Fed. R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”).

So construed, and for the following reasons, Defendants’ motions for judgment on the pleadings are denied; Hallmark’s motion to certify this case as a class action is granted, and his motion to strike is denied as moot.

II. BACKGROUND

A. Facts1

The allegations in this case are straightforward: According to Hallmark, he incurred and defaulted on a credit card debt owed to HSBC Bank Nevada, N.A. (Second Am. Compl. ¶¶ 7, 9; Docket No. 63-1.) At some point, Midland came to own the debt, and it employed C & S to collect it. (Id., ¶ 10.) In a letter addressed to Hallmark from C & S, dated August 1, 2011, the balance of the debt was stated as $1,835.31. (Id., ¶ 11.) In a subsequent letter from C & S to Hallmark, dated August 17, 2011, the balance of the debt was stated as $1,982.89, or $147.58 more than the balance stated in the first letter. (Id., ¶ 12.) $140.00 of this increase was added to Hallmark’s debt because C & S wrote and mailed a check, along with a summons and complaint, to Buffalo City Court to pay the required filing fee for a newly instituted debt-recovery action against Hallmark. (Id, ¶¶ 13-14.)

Hallmark alleges this increase, specifically the attempt to collect the court cost, violated the FDCPA.

B. Procedural History

The procedural history of this case far exceeds the factual one. Hallmark filed his initial complaint on October 6, 2011. After both Defendants answered, Hallmark moved to amend his complaint in March of 2012. (Docket No. 16.) In June of that year, Magistrate Judge Leslie G. Foschio granted that motion (Docket No. 27), and Hallmark soon filed his amended complaint. In December of 2012, Hallmark moved for class certification. (Docket No. 38.) Shortly after that, C & S moved for judgment on the pleadings (Docket No. 42); and Midland soon filed its own motion, adopting the reasoning set forth by C & S. (Docket No. 48).

In March of 2013, Hallmark moved to amend the complaint again (Docket No. 63). Then the floodgates opened. In April of 2013, Hallmark filed:

• a motion to compel (Docket No. 71),
• a supplemental motion to compel (Docket No. 74),
• a motion to strike (Docket No. 83) the declaration of Daniel Ryan (Docket No. 69), and
• a motion to compel further discovery responses (Docket No. 86).
Also in April, C & S filed motions to:
• quash Hallmark’s subpoena duces tecum (Docket No. 82), and
• stay discovery (Docket No. 85).

Judge Foschio granted the motion to stay discovery, awaiting resolution of the current motions before this Court. Accordingly, only the five motions identified in the introduction are currently before this Court.

III. DISCUSSION

A. Judgment on the Pleadings—Standard

“After 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(e). “The standard for addressing a Rule 12(e) motion for judgment on the [414]*414pleadings is the same as that for a Rule 12(b)(6) motion ____” Cleveland v. Caplaw Enters., 448 F.3d 518, 520 (2d Cir.2006). Rule 12(b)(6), in turn, allows dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Federal pleading standards are generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.R.Civ.P. 8(a)(2). But the plain statement must “possess enough heft to show that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).

When determining whether a complaint states a claim, the court must construe it liberally, accept all factual allegations as true, and draw all reasonable inferences in the plaintiffs favor. ATS I Commc’ns, 493 F.3d at 98. Legal conclusions, however, are not afforded the same presumption of truthfulness. See Iqbal, 556 U.S. at 678,129 S.Ct. 1937 (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570,127 S.Ct. 1955). Labels, conclusions, or a “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Facial plausibility exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

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Cite This Page — Counsel Stack

Bluebook (online)
293 F.R.D. 410, 2013 WL 5178128, 2013 U.S. Dist. LEXIS 132120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hallmark-v-cohen-slamowitz-llp-nywd-2013.