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Allen v. Lustig Glaser & Wilson P.C.

United States District Court, D. Massachusetts

January 5, 2016

ERNEST ALLEN, Plaintiff,
v.
LUSTIG, GLASER & WILSON P.C., et al., Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTIONS TO DISMISS AND MOTION TO STRIKE AND PLAINTIFF’S MOTION FOR LEAVE TO TAKE JUDICIAL NOTICE (Dkt. Nos. 37, 39, 50, and 57)

MARK G. MASTROIANNI United States District Judge

I. Introduction

Ernest Allen (“Plaintiff”), acting pro se, brings this action against (i) Lustig, Glaser & Wilson P.C. (“LGW”) and its employees Derek S. Waters, Kenneth Wilson, and Dean A. Heinold (the “LGW Defendants”); (ii) Midland Credit Management, Inc., Midland Funding, LLC, and Encore Capital Group, Inc. (the “Midland Defendants”); (iii) Midland Credit Management, Inc.’s employee Lily Haas; and (iv) an attorney identified as “John Doe 1.” Plaintiff alleges violations of the Fair Credit Reporting Act (“FCRA”), the Fair Debt Collection Practices Act (“FDCPA”), and Massachusetts General Laws Chapter 93A (“Chapter 93A”). The LGW Defendants and the Midland Defendants filed separate motions to dismiss Plaintiff’s complaint for failure to state a claim. Ms. Haas and “John Doe 1” have not been properly served. Thus, the case only involves the LGW Defendants and the Midland Defendants, who are collectively referred to as the “Defendants.” Plaintiff filed a number of responses to the motions to dismiss, and the LGW Defendants have filed a motion to strike all such responses as untimely. The court commends Plaintiff for his written and oral argument, but ultimately concludes that Defendants’ motions to dismiss must be allowed.

II. Standard of Review

To survive a 12(b)(6) motion to dismiss, a complaint must allege facts that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations in the complaint must “nudge[] [the] claims across the line from conceivable to plausible.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Determining whether a complaint states a plausible claim for relief” is a context-specific task that requires “the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

Courts are not required to accept as true allegations in a complaint that are legal conclusions. Id. at 678. However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. Therefore, in assessing a claim’s plausibility, the court must construe the complaint in the plaintiff’s favor, accept all non-conclusory allegations as true, and draw any reasonable inferences in favor of the plaintiff.[1] See San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st Cir. 2012).

III. Facts and Discussion

Plaintiff’s amended complaint is fairly lengthy and contains several assertions that are only related to certain of his claims. Therefore, for organizational purposes, the court will first set forth background facts relevant to all claims. The court will then address ancillary, but preliminary, matters related to the filings in the case. Finally, the court will address each of Plaintiff’s claims in turn and set forth the additional relevant facts as needed.

A. Background Facts

Plaintiff opened a credit card account ending in the number 3196 with Chase Bank USA, N.A. (the “Chase Account”), which was charged off and sold to Midland Funding, LLC on December 9, 2011. (Dkt. No. 22, Am. Compl., Ex. 6.) When it was sold to Midland Funding, LLC, the Chase Account had an unpaid balance of $1, 906.48. (Am. Compl., Ex. 2-3.) LGW is a law firm representing the Midland Defendants in multiple collection cases against Plaintiff, including collection on the Chase Account. (Am. Compl. ¶¶ 7-10, 30-33.) LGW brought a collection case for the Chase Account in the Small Claims Session of the Springfield District Court on August 26, 2014 (the “Small Claims Action”). (Am. Compl., Ex. 3.) Plaintiff alleges LGW sought to collect $3, 134.04, which would be the incorrect amount (Am. Compl. ¶¶ 31-32), but the documents attached to the amended complaint demonstrate that the claim was for $1, 906.48. (Am. Compl., Ex. 3.) Plaintiff successfully defended the Small Claims Action; judgment was entered in his favor and LGW was unable to collect on the Chase Account. (Am. Compl., Ex. 3.)

B. Defendants’ Motion to Strike and Plaintiff’s Motion for Judicial Notice

Plaintiff’s deadline for filing a response to Defendants’ motions to dismiss was originally August 21, 2015, and he was granted an extension until September 8, 2015. (Dkt. Nos. 44, 46.) On September 10, 2015, he filed a notice that his response would be forthcoming, and he filed the response on September 14, 2015. (Dkt. Nos. 48-49). The LGW Defendants seek to strike this as untimely. (Dkt. No. 50.) While Plaintiff did miss the deadline, it is conceivable that he misunderstood the extension (he asked for a 30-day extension, but was not given the full 30 days requested), and he has filed an affidavit stating he did not know of the September 8, 2015 deadline. Given Plaintiff’s pro se status and his forthrightness in explaining the delay, the court is not persuaded that his response should be stricken.

Prior to the hearing on Defendants’ motions to dismiss, Plaintiff filed a motion for leave to take judicial notice, pursuant to Federal Rules of Evidence Rule 201, of a consent decree entered into between the Midland Defendants and the United States Consumer Financial Protection Bureau. (Dkt. No. 57.) Following the hearing, the Midland Defendants filed an opposition to Plaintiff’s motion for judicial notice. (Dkt. No. 59.) The court will take judicial notice of the existence of the consent decree. A review of the consent decree indicates that it deals with matters that are ...


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