Marisco v. NCO Financial Systems, Inc.

946 F. Supp. 2d 287, 2013 WL 2285195, 2013 U.S. Dist. LEXIS 74213
CourtDistrict Court, E.D. New York
DecidedMay 23, 2013
DocketNo. 12-CV-06220 (ADS)(WDW)
StatusPublished
Cited by7 cases

This text of 946 F. Supp. 2d 287 (Marisco v. NCO Financial Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marisco v. NCO Financial Systems, Inc., 946 F. Supp. 2d 287, 2013 WL 2285195, 2013 U.S. Dist. LEXIS 74213 (E.D.N.Y. 2013).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On January 28, 2013, the plaintiff Paul Marisco (“the Plaintiff’ or “Marisco”) filed an amended complaint against the Defendant NCO Financial Systems, Inc. (“the Defendant” or “NCO”), a debt collection agency, alleging a violation of the Plaintiffs privacy rights under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692c(b) et seq. (“FDCPA”). Presently pending before the Court is a motion by the Defendant to dismiss the amended complaint in its entirety pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, the motion to dismiss is denied.

[289]*289I. BACKGROUND

A. Factual Background

The following facts are drawn from the Amended Complaint and construed in a light most favorable to the Plaintiff.

The Plaintiff, a consumer as defined by the FDCPA, allegedly owes a debt to the Defendant. To notify the Plaintiff about the disputed debt, the Defendant repeatedly left the following pre-recorded message on an answering machine in the Plaintiffs residence:

This is an important message from NCO Financial Systems, Inc. The law requires that we notify that this is a debt collection company. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please call Mack Harris today at 800-883-0613. Once again that number is 800-883-0613. Thank you.

(Amended Complaint ¶ 16.) According to the Plaintiff, “the Defendant was aware that there was a possibility that people other than the Plaintiff may be located within listening distance of the answering machine on which they intended to leave a message” (Id. ¶ 12.) The Plaintiff did not consent to the Defendant’s leaving a message on his answering machine.

On at least one occasion, the Defendant left the above-quoted pre-recorded message on the Plaintiffs answering machine while the Plaintiffs mother-in-law was in the same room. She heard the message. The Plaintiff alleges that his “mother[-]in[-]law was aware that the message was intended for the Plaintiff as there was nobody other than the Plaintiff at that location that could have owed the alleged debt” (Id. ¶ 17.) The Plaintiffs asserts that, in leaving the message this way, the Defendant invaded the Plaintiffs privacy rights accorded by the FDCPA and embarrassed and humiliated the Plaintiff in front of his mother-in-law.

B. Procedural History

On December 18, 2012, the Plaintiff commenced the instant action, asserting a single cause of action for violation of the provisions of 15 U.S.C. § 1692c(b) of the FDCPA. Thereafter, the Defendant moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The Plaintiff subsequently filed an amended complaint. The Defendant then filed a motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). That motion is currently pending before the Court.

II. DISCUSSION

A. Legal Standard for Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule 12(b)(6) is guided by two principles. See Harris v. Mills, 572 F.3d 66 (2d Cir.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

“First, although ‘a court must accept as true all of the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). “‘Second, only a complaint that states a plausible [290]*290claim for relief survives a motion to dismiss and ‘[dietermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (quoting Iqbal, 556 U.S. at 663-64, 129 S.Ct. 1937). Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and ... determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

In considering a motion to dismiss, this Court accepts as true the factual allegations set forth in the complaint and draws all reasonable inferences in the Plaintiffs favor. See Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). Only if this Court is satisfied that “the complaint cannot state any set of facts that would entitle the plaintiff to relief’ will it grant dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.1993). The issue on a motion to dismiss is “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

B. The Parties ’ Arguments

In general terms, the Defendant contends that the Plaintiffs claim fails as a matter of law because 15 U.S.C. § 1692c(b) proscribes only the deliberate disclosure of a consumer’s debt to third parties, not the inadvertent disclosure of the type alleged to have occurred here. In opposition, the Plaintiff contends that the plain terms of the statute dictate otherwise and notes that the FDCPA is generally a strict liability statute.

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Cite This Page — Counsel Stack

Bluebook (online)
946 F. Supp. 2d 287, 2013 WL 2285195, 2013 U.S. Dist. LEXIS 74213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marisco-v-nco-financial-systems-inc-nyed-2013.