Doknovitch v. Robert R. Radel, Attorneys at Law

DECISION and ORDERJURISDICTION This case was referred to the undersigned by Honorable Lawrence J. Vilardo on September 19, 2018, for all pretrial matters including preparation of a report and recommendation on dispositive motions. The matter is presently before the court on Defendant’s motions to dismiss the complaint and for costs and attorney fees (Dkt. 3), filed August 11, 2018, and to dismiss the amended complaint and for costs and attorney fees (Dkt. 7), filed August 31, 2018, and Plaintiff’s motion to strike (Dkt. 8), filed September 11, 2018.¹BACKGROUNDPlaintiff Michael Doknovitch (“Plaintiff”), commenced this action on June 28, 2018, alleging Defendant, Robert R. Radel, Attorneys at Law (“Defendant”), violated the Fair Debt Collections Practices Act, 15 U.S.C. §1692 et seq. (“the FDCPA” or “the Act”), in connection with Defendant’s attempt to collect a debt allegedly owed by Plaintiff to Buffalo Dental Group, LLP (“Creditor”). On August 11, 2018, Defendant filed a motion seeking to dismiss the complaint for failing to state a claim and for summary judgment requesting costs and attorney fees incurred in defending the action (Dkt. 3) (“Defendant’s First Motion”), attaching, inter alia, Defendant’s Memorandum of Law in Support of Defendant’s Motion to Dismiss the Complaint and [for Summary Judgment]² for Costs and Attorney Fees (Dkt, 3-11) (“Defendant’s First Memorandum”). Plaintiff filed no opposition to the First Motion to Dismiss; rather, on August 24, 2018, Plaintiff filed an amended complaint (Dkt. 5) (“Amended Complaint”), again alleging Defendant violated the FDCPA in attempting to collect a debt Plaintiff allegedly owed to Creditor, but adding several new factual allegations. Despite Plaintiff’s filing of the Amended Complaint, on August 31, 2018, Defendant filed Defendant’s Reply in Support of the Defendant’s Motion to Dismiss the Complaint and [for Summary Judgment] for Costs and Attorneys Fee (Dkt. 6) (“Defendant’s First Reply”).Defendant also filed on August 31, 2008, a motion to dismiss the Amended Complaint for failure to state a claim and for summary judgment for costs and attorney fees (Dkt. 7) (“Defendant’s Second Motion”), attaching Defendant’s Statement of Material and Indisputable Facts in Support of Defendant’s Motion to Dismiss the First Amended Complaint and [for Summary Judgment] for Costs and Attorney Fees (Dkt. 7-1) (“Defendant’s Statement of Facts”), the Affidavit of Robert R. Radel, Esq. (“Radel”) in Support of Defendant’s Motion to Dismiss the First Amended Complaint and [for Summary Judgment] for Costs and Attorney Fees (Dkt. 7-1) (“Radel Affidavit”), the Affidavit of Kristen Geary in Support of Defendant’s Motion to Dismiss the Complaint and [for Summary Judgment] for Costs and Attorney Fees (Dkt. 7-3) (“Geary Affidavit”), exhibits A through I (respectively, Dkts. 7-4 through 7-12) (“Defendant’s Exh(s). __”), and Defendant’s Memorandum of Law in Support of Defendant’s Motion to Dismiss the First Amended Complaint and [for Summary Judgment] for Costs and Attorney Fees (Dkt. 7-13) (“Defendant’s Second Memorandum”). The arguments contained in Defendant’s Second Motion are essentially the same as those asserted in Defendant’s First Motion.On September 11, 2018, Plaintiff filed Plaintiff’s Motion to Strike Defendant’s Reply in Support of Its Motion to Dismiss (Dkt. 8) (“Plaintiff’s Motion”).On September 14, 2018, Plaintiff filed Plaintiff’s Response to Defendant’s Motion to Dismiss Plaintiff’s Complaint and [for Summary Judgment] for Costs and Attorney Fees (Dkt. 9) (“Plaintiff’s Response to Defendant’s Second Motion”).On October 24, 2018, Defendant filed Defendant’s Response and Opposition to the Plaintiff’s Motion to Strike Document Number 6 (that being a certain motion paper of the Defendant) (Dkt. 12) (“Defendant’s Response to Plaintiff’s Motion”).On November 7, 2018, Defendant filed Defendant’s Reply in Support of the Defendant’s Motion to Dismiss the Amended Complaint and [for Summary Judgment] for Costs and Attorney Fees (Dkt. 13) (“Defendant’s Second Reply”).On November 7, 2018, Plaintiff filed Plaintiff’s Reply in Support of His Motion to Strike Defendant’s Reply in Support of Its Motion to Dismiss (Dkt. 14) (“Plaintiff’s Reply”).Oral argument was deemed unnecessary.Based on the following, Defendant’s First Motion is DISMISSED as moot; Defendant’s Second Motion should be GRANTED in part, and DENIED in part; Plaintiff’s Motion is DISMISSED as moot.FACTS³On October 3, 2011, Plaintiff Michael Doknovitch (“Plaintiff” or “Doknovitch”) went to Buffalo Dental Group, LLP (“the Creditor” or “Buffalo Dental”) for dental services, completing a form questionnaire (“the Contract”),⁴ seeking such patient identification information as name, address, employer, insurance, as well as the party who would be responsible for paying for the dental services rendered by Buffalo Dental. The Contract provides for the collection of late charges if not paid within 25 days of the monthly billing date, and that[i]n the case of default on payment of this account, I agree to pay collection costs and reasonable attorney fees incurred in attempting to collect on this amount or any future outstanding account balance.Contract at 2.Plaintiff’s final dental treatment was November 9, 2011, and between October 3, 2011 and April 9, 2012, Plaintiff made payments for the dental services totaling $ 911.⁵ For the period between March 5, 2012 and July 5, 2012, Plaintiff was assessed finance charges on the unpaid account balance totaling $ 103.74, and as of July 31, 2012, the unpaid balance of Plaintiff’s account was $ 1,399.74,⁶ which Buffalo Dental turned over to Defendant Robert R. Radel, Attorneys at Law (“Defendant” or “the Law Firm”) for collection, with a collection fee of $ 489.90 assessed. Defendant took no action to collect the debt until, by letter dated March 16, 2018 (“Demand Letter”),⁷ Defendant advised Plaintiff that Buffalo Dental had retained the Law Firm to collect the balance of Plaintiff’s account owed, being $ 1,399.74 (“unpaid account balance”), plus “contractual legal fees of $ 489.90″ (“legal fee”) for a total claim amount of $ 1,889.64 (“the subject debt”), advising the Demand Letter is “an attempt to collect a debt.” Demand Letter at 1. By letter dated March 23, 2018 (“Plaintiff’s March 23, 2018 Letter”),⁸ Plaintiff responded that he disputed the subject debt because he never received an itemized bill from the Creditor for the unpaid account balance and further objecting to the assessed legal fee without Plaintiff first being given the opportunity to make arrangements to pay the unpaid account balance. Defendant responded by letter dated March 23, 2018 (“Defendant’s March 23, 2018 Letter”),⁹ providing Plaintiff with a copy of the Contract and the Single Patient Ledger showing the billing and payment history on Plaintiff’s account, as well as the July 31, 2012 assessment of the $ 489.90 “collection fee,” and advising such documents provided support for the subject debt. By letter to Defendant dated April 24, 2018 (“Cease and Desist Letter”),¹⁰ David Marco, Esq. (“Marco”) advised he had been retained to represent Plaintiff with regard to Defendant’s attempt to collect the subject debt, instructing Defendant to cease and desist all further communications with Plaintiff, asserting Defendant’s attempt to collect the subject debt violated the FDCPA, and seeking Defendant’s cooperation in settling the matter without resort to litigation. Enclosed with the Cease and Desist Letter was a copy of a complaint Plaintiff intended to file if the matter was not amicably resolved, characterizing the debt collection attempt as in violation of the FDCPA because the $ 489.90 did not qualify as legal fees incurred by Defendant but, rather, is an additional 35 percent of the unpaid account balance Buffalo Dental “unilaterally” added before remitting the debt for collection by Defendant. By letter to Marco dated May 30, 2018 (“Settlement Letter”),¹¹ Defendant advised the legal fee had indeed been earned prior to March 16, 2018, attaching a quantum meruit statement of the legal fee (“Attorney’s Fee Statement”),¹² indicating the value of the services purportedly rendered in seeking to collect the unpaid account balance based on the time expended and Defendant’s hourly rate was $ 200. Defendant further requested Marco respond in writing “marked ‘personal and confidential’” advising whether Plaintiff intended to pursue the complaint. No such response was received by Defendant, and on June 28, 2018, Plaintiff filed the complaint, thereby commencing the instant action.¹³DISCUSSION1. Preliminary ConsiderationsAlthough the instant action is brought under the FDCPA, Plaintiff is not challenging Defendant’s attempt to collect on the entire subject debt but, rather, in both the Complaint and Amended Complaint, Plaintiff maintains the $ 489.90 legal fee included in the subject debt was never previously disclosed to Plaintiff and was not earned by Defendant in attempting to collect on the unpaid account balance. See Complaint 25 (alleging the Contract refers only to “collection costs or reasonable attorney fees”), and Amended Complaint 35 (alleging the legal fee was “an estimated and/or contingent collection fee that only could be owed by Plaintiff upon Defendant’s successful collection of the principal balance of the Debt.”). Plaintiff does not dispute that $ 1,399.74 remains unpaid on his account with Buffalo Dental, nor do the parties dispute that because more than six years have elapsed since Plaintiff’s last payment on the account was made on April 9, 2012, and any further attempt by Defendant to recover the debt is time-barred by New York’s six-year limitations period for contract actions. In both Defendant’s First Motion and Second Motion, Defendant seeks dismissal of Plaintiff’s FDCPA claims, as well as to recover the costs and attorney fees Defendant incurred in defending the instant action pursuant to 15 U.S.C. §1962(k)(3), arguing the legal fees included in the subject debt were expressly authorized by the FDCPA, such that the commencement of this action was in bad faith and for the purpose of harassing Defendant.2. FDCPA¹⁴Plaintiff asserts claims for relief under the FDCPA alleging Defendant, by using false, deceptive or misleading representations or means, or unfair or unconscionable means in connection with its attempt to collect the subject debt, violated 15 U.S.C. §§1692e, 1692e(2)(A), 1692e(10), 1692f, and 1692f(1). “Congress enacted the FDCPA to eliminate ‘abusive practices in the debt collection industry, and…to ensure that ‘those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.”” Ellis v. Solomon and Solomon, P.C., 591 F.3d 130, 134 (2d Cir. 2010) (quoting Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. 2008) (quoting 15 U.S.C. §1692(e)))). The FDCPA prohibits “the false representation of…any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.” 15 U.S.C. §1692e(2)(B). “To recover damages under the FDCPA, a consumer does not need to show intentional conduct on the part of the debt collector. The Act ‘is a strict liability statute, and the degree of a defendant’s culpability may only be considered in computing damages.’” Ellis, 591 F.3d at 135 (quoting Bentley v. Great Lakes Collection Bureau, Inc., 6 F.3d 60, 63 (2d Cir. 1993)). Further, a single violation of the FDCPA is sufficient to impose damages. Ellis, 591 F.3d at 133.3. Defendant’s Motion for Costs and Attorney FeesBoth Defendant’s First and Second Motions contain the nearly identical request for an award of attorney fees under 15 U.S.C. §1692k(a)(3) (“§1692k(a)(3)”), which providesOn a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.As discussed, Discussion, supra, at 7, it is Defendant’s contention that because the sixyear statute of limitations relevant to the subject debt elapsed three weeks after Defendant sent the Demand Letter, the subject debt became uncollectible before Plaintiff commenced the instant action, such that Plaintiff’s filing of this action was in bad faith and intended to harass Defendant. With regard to Defendant’s First Motion, to which Plaintiff filed no response, Defendant maintains that Plaintiff’s filing of the Amended Complaint on August 24, 2018,¹⁵ rendered moot Defendant’s First Motion insofar as it seeks dismissal under Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”), of the FDCPA claims for failure to state a claim, but not as to the further request for summary judgment under Fed.R.Civ.P. 56 (“Rule 56″), on Defendant’s request under §1692k(a)(3) for costs and attorney fees premised on Defendant’s assertion that the instant action was commenced in bad faith and to harass Defendant, Plaintiff has thereby defaulted as to any opposing argument that could have been raised in opposition to Defendant’s request for summary judgment, and thereby essentially conceded that Defendant is entitled to such costs and attorney fees. Defendant’s First Reply

at 4-7. As noted, Plaintiff has moved pursuant to Fed.R.Civ.P. 12(f) (“Rule 12(f)”), to strike Defendant’s First Reply on the basis that the filing of the Amended Complaint rendered Defendant’s First Motion, including summary judgment on Defendant’s request for an award of costs and attorney’s fees under §1692k(a)(3) moot, and negating the need for Plaintiff to respond to Defendant’s First Motion. Plaintiff’s Memorandum