ERIC N. VITALIANO, District Judge.
Pro se plaintiff Reny Rivero brings this action seeking damages under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, against defendants Cach LLC ("Cach"), one of Rivero's consumer debt creditors; Daniels & Norem P.C. ("D&N"), the debt collection law firm retained by Cach; three D&N employees, Ira R. Sitzer, Fred G. Daniels, and George H. Norem; and attorney Helen Ferino. On May 16, 2012, D&N made Rivero a written offer of judgment, pursuant to Federal Rule of Civil Procedure 68, in the amount of $1001 plus costs. Rivero declined the offer of judgment. Defendants, represented by D&N, now move to dismiss the complaint on the ground that Rivero's rejection of this offer deprives the Court of subject matter jurisdiction, or alternatively, assuming jurisdiction, for summary judgment on behalf of defendants Cach, Daniels, Norem, and Ferino. For the reasons set forth below, the motion to dismiss is denied and the motion for summary judgment is granted.
D&N was retained by Cach to collect consumer credit card debt purportedly owed to Cach by various debtors, including Rivero. (Scully Aff., Dkt. No. 46, at, ¶2.) After allegedly trying to reach Rivero to resolve the debt, D&N brought a civil action against him in Civil Court, Richmond County. (Id.) Rivero's failure to respond to the complaint resulted in the entry of a default judgment on December 8, 2009. (Id.). On or about October 1, 2010, Rivero received a phone message from D&N seeking to collect the debt, the first communication he claims to have received regarding the debt. (2d Am. Compl., Dkt. No. 27 ¶ 14.) That same day, plaintiff prepared a letter pursuant to 15 U.S.C. 1692g(b), which he subsequently sent to D&N by fax and certified mail, disputing the debt and demanding that D&N validate the debt by competent evidence, and that D&N cease and desist contacting him via telephone.
While the state court action was pending, Rivero filed this lawsuit on September 30, 2011, alleging violations of various provisions of FDCPA and New York City Local Law 15,
The complaint charges that, in violation of FDCPA, D&N and its named employees made over 15 wrongful, threatening, and abusive phone calls to him during the period November 22, 2010 through April 5, 2011, after Rivero had sent D&N written notice disputing and requesting verification of the debt. (2d Am. Compl. ¶ 19.) Plaintiff provides a log-which he has testified was generated by Vonage, his phone service provider-of these alleged calls, which sets out the date, time, and caller's phone number. (Ex. C to 2d Am. Compl., Dkt. No. 29; Rivero Dep. at 10.) Plaintiff claims that in 12 of these 15 calls, defendant Sitzer, a D&N employee, left him voicemail messages, of which he submits transcriptions, also apparently generated by Vonage. (Ex. D to 2d Am. Compl.; Rivero Dep. at 10.) A review of the transcriptions shows that, for each call, the caller's phone number is associated with "Daniels," and that, in certain of the messages, the caller identifies himself as "Ira from the law firm of Daniels and [Norelli]."
On May 16, 2012, D&N wrote to Rivero and made an offer of judgment, pursuant to Rule 68, in the amount of $1001 plus costs.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Although a court must read the pleadings and papers submitted by a self-represented party "liberally . . . and interpret them to raise the strongest argument that they suggest," Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), it nonetheless remains the plaintiff's burden, even if pro se, to establish the court's constitutional and statutory authority to hear the claim. Makarova, 201 F.3d at 113. Defects in subject matter jurisdiction may be raised at any time during the proceedings. Fed. R. Civ. P. 12(h)(3).
If the Court finds that it has jurisdiction, D&N moves alternatively for summary judgment on behalf of defendants Cach, Daniels, Norelli, and Ferino, pursuant to Rule 56. In determining the merits of a summary judgment motion, a court's duty is not to try issues of fact, but rather to "determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). The moving party bears the burden of showing that there is no genuine issue as to any material fact, see, e.g., Jeffreys v. City ofNew York, 426 F.3d 549, 553 (2d Cir. 2005), and the court will resolve all ambiguities and draw all permissible factual inferences in favor of the nonmoving party, see, e.g., Sec. Ins. Co. of Hartford v. Old Dominion Freight Line. Inc., 391 F.3d 77, 83 (2d Cir. 2004).
If the moving party meets its initial burden of demonstrating the absence of a disputed issue of material fact, the burden shifts to the nonmoving party. See George v. Reisdorf Bros., Inc., 410 Fed. Appx. 382, 383-84 (2d Cir. 2011). The nonmoving party may not rely solely on "conclusory allegations or unsubstantiated speculation" in order to defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Instead, the nonmoving party must "make a showing sufficient to establish the existence of [each) element to that party's case . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the evidence favoring the nonmoving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511 (1986).
"[A] case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). The idea of a "legally cognizable interest" has also been described as "a requirement that a plaintiff have a `personal stake' in the litigation." Fox v. Bd. of Trustees of State Univ. of New York, 42 F.3d 135, 140 (2d Cir. 1994) (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980)). "When a defendant offers the maximum recovery available to a plaintiff' as part of a Rule 68 offer of judgment, this eliminates the plaintiff's "personal stake" in the litigation and thus moots the case. Ward v. Bank ofNew York, 455 F.Supp.2d 262, 267 (S.D.N.Y. 2006) (citing Abrams v. Interco, 719 F.2d 23, 32 (2d Cir. 1983)); see also Weiss v. Fein, Such, Kahn & Shepard, P.C., No. 01-cv-1086, 2002 WL 449653 (S.D.N.Y. Mar. 22, 2002) (case held to be moot where defendant's offer of judgment "contain[ed] all the available relief sought by plaintiff."); Cresswell v. Prudential-Bache Sec., Inc., 675 F.Supp. 106, 108 (S.D.N.Y. 1987) (a case becomes moot "when a defendant tenders all that a plaintiff could recover were a claim to be fully litigated."). "When a case becomes moot, the federal courts `lack[] subject matter jurisdiction over the action.'" Fox, 42 F.3d at 140 (quoting New York City Employees' Retirement Sys. v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992)) (alteration in original). Recently, the Second Circuit specifically found that an FDCPA case may be mooted by a Rule 68 offer of judgment. Doyle v. Midland Credit Mgmt., Inc., No. 12-4555, 2013 WL 3242148 (2d Cir. June 28, 2013) (per curiam).
At the same time, however, if a defendant conditions an offer of judgment on the plaintiff accepting extraneous terms, then the plaintiff can reject the offer without mooting the case. See McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005) (case not mooted by Rule 68 offer of judgment conditioned on requirement that the settlement be confidential and filed under seal, even though accompanied by offer of all damages sought); see also Cabala v. Crowley, No. 12-cv-3757, 2013 WL 6066412 (2d Cir. Nov. 19, 2013) (offer to pay maximum damages available under FDCPA, without offer of judgment, does not moot case).
Defendants argue that their offer of judgment against D&N and $1001 plus costs exceeds Rivero's maximum recovery, and thus eliminates any "personal stake" he had in his case. However, D&N conditioned its Rule 68 offer on judgment being taken against D&N only, and on dismissal with prejudice as to the individual defendants. Such a conditional offer does not constitute "all the available relief [Rivero] sought," Weiss, No. 01-cv-1086, 2002 WL 449653, at *3, and, thus, Rivero's rejection of the offer does not moot this case. See McCauley, 402 F.3d at 342. The fact that D&N offered Rivero the full amount of damages to which he was entitled is irrelevant, as an offer of settlement-even for all damages sought-without an offer of judgment against all potential wrongdoers named as defendants does not moot a case. See Cabala, 2013 WL 6066412, at *3.
The difference between a judgment against D&N and a judgment against one or more other defendants is not merely academic.
Defendants' motion for summary judgment in favor of defendants Cach, Daniels, Norelli, and Ferino, however, is granted. Rivero does not allege that any of the defendants other than Sitzer and D&N communicated with him in writing, by phone, or otherwise in connection with D&N's attempts to collect the purported debt. Plaintiff bases his claims against individual defendants Daniels and Norelli on the fact that they personally prepared the state court summons and complaint on behalf of Cach, which contained an incorrect address, resulting in the default judgment that was entered against him and later vacated by stipulation. (2d Am. Compl. ¶ 25-26; Rivero Depo. at 20-21). Defendant Ferino is named based on her appearance for D&N as a per diem attorney representing Cach in Civil Court on Rivero's motion to vacate the default judgment against him. (2d Am. Compl. ¶ 30-33). Rivero makes no specific factual allegations against Cach in his complaint, nor offers any evidence of communications between himself and Cach, and stated in his deposition that he included Cach as a defendant based on its retention of D&N in the Civil Court case. (Rivero Dep. at 38-40).
There is thus no basis on which to sustain FDCPA claims against these defendants. On these facts, Ferino cannot reasonably be considered a "debt collector" as that term is defined under FDCPA, as Rivero acknowledges that Ferino's role was limited to appearing at a traverse hearing regarding service of process upon him. See 15 U.S.C. § 1692a(6)(D) (excluding from the definition of a "debt collector" any person acting "in connection with the judicial enforcement of any debt"). Her activities are thus not covered by FDCPA, and summary judgment in her favor is appropriate. See Firemen's Ins. Co. of Newark, N.J. v. Keating, 753 F.Supp. 1137, 1142-43 (S.D.N.Y. 1990). Cach, as the owner of the debt, is covered by FDCPA to the extent that-as Rivero alleges, and defendants do not dispute—Cach purchased Rivero's debt after he had defaulted on it, and "solely for the purpose of facilitating collection of such debt." 15 U.S.C. § 1692a(4). In any event, assuming that Cach is covered, Rivero has failed to allege, let alone demonstrate, any acts by Cach that would constitute a violation of FDCPA. Summary judgment is thus appropriate for Cach as well. Likewise, while Daniels and Norem are unquestionably "debt collectors" by profession, Rivero has not alleged that these individuals have made any improper contact with him or done anything other than prepare legal documents in connection with a debt collection, albeit containing the wrong address. Daniels and Norem, too, then, are entitled to summary judgment.
Defendants also seek attorney's fees and costs in connection with their motion. FDCPA only provides these remedies for defendants where plaintiff has filed in bad faith or for the purpose of harassment. 15 U.S.C. § 1692k. Neither is the case in this lawsuit prosecuted by a party untutored by counsel. Rivero's interpretation of the law is certainly not unreasonable for a lay person. All relief defendants seek against Rivero, including an order barring future pro se filings, is denied.
Two defendants remain: D&N and Sitzer. The Court notes that Rivero has submitted competent evidence that he sent D&N written notice disputing and requesting verification of his debt within 30 days of D&N's initial communication to him, and that Sitzer and D&N made at least 12 debt collection calls to him thereafter, in violation of 15 U.S.C. § 1692g(b). See supra note 1; (see Exs. A and B to 2d Am. Compl.) The Court further finds that as a matter of law, $1,000 is the maximum recovery to which Rivero is entitled on his FDCPA claim. See 15 U.S.C.A. § 1692k (limiting the liability of a "debt collector" to: (1) actual damages sustained by the plaintiff due to the debt collector's violation; (2) such "additional," i.e., statutory, damages as the court may allow, but not exceeding $1000; and (3) the "costs of the action, together with reasonable attorney's fees as determined by the court.").
For the foregoing reasons, defendants' motion to dismiss is denied; defendants' motion for summary judgment in favor of defendants Cach, Daniels, Norelli, and Ferino is granted; Rivero's claim under New York Local Law 15 is dismissed; and defendants' requests for attorney's fees, costs, and an order barring plaintiff from further pro se action, is denied. Assuming the case is not resolved on consent, the parties are directed to Magistrate Judge Bloom for case management and preparation of a joint pretrial order.
While Rivera's complaint includes a plea for actual damages, (see 2d Am. Compl. at ¶ 40), it does not specify the amount of actual damages he seeks, nor does Rivero make any factual allegations supporting an award of actual damages, despite having amended his complaint twice and engaged in discovery. Nor does Rivero claim on this motion to seek actual damages. The Court thus deems Rivero's claim for actual damages to have been abandoned.
