United States District Court, D. Massachusetts
Raymond Phaneuf, Plaintiff, Pro se, Uxbridge, MA.
Lustig, Glaser & Wilson, P.C., Defendant: Brian F. Hogencamp,
LEAD ATTORNEY, Lustig, Glaser & Wilson P.C., Waltham, MA.
S. HILLMAN, UNITED STATES DISTRICT JUDGE.
1, 2015, Raymond Phaneuf (" Phaneuf" or "
Plaintiff" ) filed a complaint against Lustig, Glaser &
Wilson (" Lustig Glaser" or " Defendant"
) alleging claims for violation of the Fair Debt Collections
Practices Act, 15 U.S.C. § 1692e et seq.
(" FDCPA" ) (Docket No. 1). More specifically,
Phaneuf alleged that Lustig Glaser violated the FDCPA by
falsely representing the character, amount or legal status of
his debt (Count I), communicating or threatening to
communicate credit information which it knew to be false
(Count II), misrepresenting the amount of the debt and that
it had sent a discovery request (Count III), and continuing
to contact him without having first providing verification of
the debt after he notified them in writing he was disputing
it (Count IV).
is proceeding pro se and, therefore, is not subject
to the Court's Electronic Case Filing System unless he
opts to apply for inclusion and completes the training
prerequisites. Phaneuf has not applied to participate in the
electronic filing system and therefore, notices and pleadings
are served on him by mail to the address specified by him in
the Complaint. On July 30, 2015, Lustig Glaser filed a
Motion to Dismiss for failure to Prosecute (Docket
No. 4) on the grounds that Phaneuf had failed to comply with
this Court's filing requirements because at the time he
filed the Complaint, he had failed to pay the required filing
fee or file a motion to proceed in forma pauperis.
Lustig Glaser mailed a copy of the motion to Phaneuf at his
address specified in the Complaint. Thereafter, Phaneuf paid
the filing fee and the motion to dismiss was denied as moot.
September 8, 2015, Lustig Glaser filed Defendant Lustig,
Glaser & Wilson, P.C.'s Motion To Dismiss Plaintiff's
Complaint Pursuant To F.R.C.P. 12(b)(6) and 15USC
1692k(d) (Docket No. 10). Lustig Glaser certified that
on September 8, 2015, it had sent paper copies of the motion
and supporting memorandum to Phaneuf at the address specified
in the Complaint. In its motion, Lustig Glaser asserted that
Phaneuf's Complaint should be dismissed because: 1) the
claims asserted therein were brought outside of the
applicable statute of limitations and therefore, are
time-barred; and/or 2) the factual allegations contained
therein are insufficient to state a plausible claim under
Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). Phaneuf did not file an opposition to the motion
November 9, 2015, the Court granted the motion to dismiss for
the reasons stated in Defendant's supporting memorandum.
See Docket Entry No. 13. In accordance with this
Court's usual procedures, a copy of the Court's
Electronic Order was mailed to Phaneuf at the address
specified in the Complaint. This Order addresses
Phaneuf's motion to reopen his case (Docket No. 15),
which was filed on December 2, 2015. For the reasons set
forth below, that motion is denied.
requests that that the Court vacate the Order dismissing his
Complaint and re-open his case. A court may not
automatically treat a plaintiff's failure to file an
opposition to a motion to dismiss as a procedural default
warranting dismissal irrespective of whether the Complaint
has merit, that is, the Court cannot simply allow
the motion to dismiss as a sanction failure to oppose the
motion. Cf. Pomerleau v. West Springfield Public
Schools, 362 F.3d 143 (1st Cir. 2004). At the same time,
Rule 59(e) 'does not provide a vehicle for a party to
undo its own procedural failures' or to 'advance
arguments that could and should have been presented to the
district court prior to judgment.' That a district court
may not, without notice, dismiss the plaintiff's
complaint as a sanction for the failure to file an opposition
does not mean that the non-responding plaintiff is relieved
of his or her duty 'to incorporate all relevant arguments
in the papers that directly address a pending motion.'
Thus, a plaintiff who fails to raise any substantive legal
arguments prior to the dismissal of his or her complaint is
appropriately limited under Rule 59(e) to challenging the
court's decision as a manifest error of law.
Id., 362 F.3d at 147 n. 2 (internal citations and
citations to quoted cases omitted).
noted above, the Court dismissed Phaneuf's claims for the
reasons state in Defendant's memorandum. The Defendant
argued in its memorandum in support of the motion to dismiss
that the claims asserted in the Complaint were time-barred
and/or failed to state a claim. In his motion to vacate,
Phaneuf does not argue that the claims were brought within
the statute of limitations or that the allegations in the
Complaint are sufficient to meet the Iqbal/Twombly
plausibility standard. Instead, he asserts that he never
received any documents and did not know he had to state a
claim. Neither of these justifications has merit.
the Iqbal/Twombly requirement that a Complaint state
a plausible claim on its face has been in place for more than
six years and Phaneuf's pro se status will not
excuse his failure to meet its requirements. SeeBrown v. Dep't of Veterans Affairs, 451
F.Supp.2d 273, 276-77 (D. Mass. 2006)(While Court will
construe pro se litigant's pleadings liberally,
" the Court is not the plaintiff's advocate and will
not 'conjure up implied allegations,' in order ... to
state an actionable claim." (internal citations and
citation to quoted case omitted)). In addition, even assuming
that Phaneuf did not receive copies of the motion to dismiss
and the Court's order allowing the same, Phaneuf has a
duty to periodically check the Court's docket. Under