I have to identify the procedure, issue, holding, judgement, rationale, concurrence, dissent, dict. I have attached the case.
525. F.Supp. 21 3:24 David J . Gold, P.L. by David J. Liold, Egg. New York City . United States District Court . for Defendants` E.D. New York . Wminion Audrey KRAPF , Plaintiff . THEMORALYOUNG AND ORDER PROFESSIONAL COLLECTION SERVICES, INC. James Vogel, James Dorsa ,* Jimmy King " and WEXLER, District Judge . Charles . J. O'shea Funeral Home , Inc ., Defendants . Plaintiff , Audrey Krapf !" Plaintiff" or " Kraft" ; COMMENCEd this action pursuant to the Fair Licht Collection Practices NO . CY' 07 - 1520 .` | DEC . 12 , 20:07 Act , IS US. C. $ 1612 at sey . ( the*FUCPA " or the " ACT"! Synopsis and New York State law . Krapf alleges that Defendants Background ; Plaintiff brought action pursuant to Fair Licht Engaged in unfair and abusive collection practices with Collection Practices Act ( FUCFAY and state law alleging respect to a debt arising from expenses incurred in connection that debt collection agency' and its employees Engaged in with Plaintiff's" father's funeral . Named as Defendants HTC unfair and abusive collection practices with respect to debt Professional Collection Services , Inc., James Vogel and arising from expenses incurred in connection with her father's James Dorsa . "The complaint also names* Jimmy King*" as funeral. Licfondant's moved to dismiss . * Defendant , an alias believed to have been used by James Vogel andfor James Darea in the course of attempting to collect debts .* Presently, before the court is the nation of the individually named Defendants, pursuant to Rule Izitin` ; Holding :" The District Court , Wexler , J ., held that employees of the Federal Rules of Civil Procedure , to dismiss . For the WERE Subject to personal liability under FUERA reasons set forth below , the motion in denied. Motion denied . BACKGROUND 1 . THE Parties and the Allegations of the Complaint W/est Headnotes ! ! ! Plaintiff is an " individual who I resides in this district. Defendant Professional Collections Services , Inc . 141 Antitrust and Trade Regulation " Professional"; is alleged to #` Engaged in the business of `` Persons and Transactions Covered debt collection , doing business in New York State . James Dicht collection agent,'s Employees were subject Vogel and James Dorsa . ( the " Individual Defendants"} HTC* to individual liability under Fair Dicht Collection alleged to have been employed by Professional during the Practices Act ! FUCFAY for FUCKA Violations in relevant time period . which they were personally involved . Fair Licht Collection Practices Act, " BUT , IS U.S.C.A_ $ Plaintiff alleges that she planned funeral arrangements for her 10:42 0 . father while caring for him during a terminal illness . Those arrangements are alleged to have been made with O'shea ? Lasts that cite this headnate Funeral Home , Inc . !``Shea"Y . The cast for the funeral was so, 500, of which Plaintiff pre - paid $7, 501. Shortly after death of her father , Plaintiff's daughter was diagnosed with cancer . Plaintiff communicated to It'she's the dire financial situation Attorney's and Law Firms* that resulted from this circumstance , and sought to reduce the amount cut in connection with her father's funeral expenses . *375 Joseph Mauro Log.. West Islip , MY, for Plaintiff .`Krapf & . Professional Collection Services , Inc . 525, F. Supp. 20 324 /20107 1 Plaintiff alleges that O'shea agreed to accept Plaintiff's* to Rule I'd j, to a motion for summary judgment . " The court father's military death benefit , in the amount of Saad , in will , accordingly , consider this mation us a motion to dismiss . full satisfaction* 324 of the amount still due and owning to the funeral home . Plaintiff states that despite this agreement , and O'shea's acceptance of the Saw` death benefit , O'shea 11. Standard For Motion To Dismiss* attempted to collect the full amount due on Plaintiff's father's* In Bell Atlantic Corp . " THENbly . _ U.S. __. 127 {. CI funeral ExPENSE - approximately $ 1, 2010. Plaintiff attempted 1955 , 167 L. Ed. 24 429 /2^7';, the Supreme Court rejected to pay the bill , making what the complaint refers to as the "off-quoted" standard set forth in Center " . Gibson , 395 " voluntary unsolicited payments . " When these payments U.S . 41 , 78 9. CL }} 2 L. Ed. 20 10 (14571, that a complaint failed to satisfy; the entire bill , `Shed instructed its collection should not be dismissed , " unless it appears beyond doubt that agent , Professional , to institute proceedings to collect the the plaintiff can prove no set of facts in support of his claim remainder of the amount due . In the course of attempting which would entitle him to relief. "``_ at 45 - 45. T& S.C.1. 94. to collect the debt , Professional and the individually named The court discarded the " no set of facts" language in favor* Defendants are alleged to have " acted in a an abusive , of the requirement that plaintiff plead enough facts " to state harassing, and deceptive manner contrary to the standards* a claim for relief that is plausible on its face . " Bell Atlantic of civilized society , and contrary to the standards employed Long , 127 S. [1. at 1974 . by others in its industry * . " Defendants" actions are alleged in support of a claim of violation of the FLICKA as well as How The " plausibility" language used by the Supreme Court in York State law . Bell Atlantic , has not been interpreted by, the Second Circuit* to require a " universal standard of heightened fact pleading ." but to require a complaint to "amplify & claim with some 11 . The Motion to Dismiss* factual allegations in those contexts where such amplification "The Individual Defendants move to dismiss on the ground is needed to render the claim plausible . " Inhair. Harry , $90 that Plaintiff has failed to state & claim of personal liability* . F.3d 147, 15# 12'd Cir. doN'T'; `emphasis in original! . Further* Having submitted factual affidavits , Defendants also move* courts have noted that while heightened factual pleading is to convert this motion , pursuant to Rule 121d'; of the Federal not the new order of the day , Bell Atlantic hok's that & # 327 Rules of Civil Procedure , to 's motion for summary judgment " formulair recitation of the Elements of a cause of action will and for the Entry of judgment pursuant to Rule 56. After not do . Factual allegations must be Enough to raise a right to outlining relevant legal principles the court will turn to the relief above the speculative level, on the assumption that all merits of the nation . the allegations in the complaint are true (even if doubtful in fact i. " Williams ". Berkshire Fin . Ging. Inc. . 491 F.Supp. 2^ 120, 124 1 E. O.N . Y. Z`ITY, quoting, Bell Atlantic Corp .. 127 {. LL at 1959. 1 . The Court Declined to Comment the Motion Pursuant to In the context of' a motion to dismiss , this court must , $15 Rule 12 /^` alwa's , assume that all allegations set forth in the complaint* If matters outside of the pleadings are presented and not are true and draw all inferences in favor of the non- moving* excluded by the court, the mention must be treated as a motion party . Hart { Services for the Underserved, 2007 W/L for summary judgment under Rule SE of the Federal Rules of" IFSIZE Z* ZIE.O.N. Y . June 6, 20071. The court must ensure . Civil Procedure . FOUR. CRY. F. IZ'd'). In such a case the court however , that the complaint sets forth "enough facts to must give all parties & reasonable opportunity to present " all state a claim to relief that is plausible on its face. " Bell material that is pertinent to the motion. " Hart's ": Services for* Atlantic Corp . . 127 {. CL. at 1974 . While a Rule 12 mation* the Linderserved . ZIT W/L IGFIZZZ* Z IED.N. Y. JUNE 6, is directed only to the sufficiency of the pleading , the 20171. Discovery is ongoing in this matter and it is not likely* court determining the mation may rightfully consider written that sufficient evidence can be camered at this juncture to` documents attached to the complaint as well as documents properly consider a motion for summary judgment . The court Incorporated thereto by reference and those of which plaintiff holds , therefore that it will not consider matters outside of the had knowledge and relied upon in commEncing her lawsuit . pleadings and will therefore not convert this motion , pursuant SEE Brass H Amer . Film Techn., Inc. `#7 F. 20 142, 150 120 [iT. 19431; Ham`, 2017 W/1. 1651852* 2Krapf V . Professional Collection Services , Inc., 525, F.Supp . 20 324 /20:07 ) Ill . Liability Under the FOCPA " The FDICPA was enacted to protect Consumer` While not adopting & respondeat superior theory of liability . from " unscrupulous debt collection practices. " THE*` these courts have held that personal involvement can lead Metropolitan Retail Recover . INc.. $51 F. SUPP. $1, 65 to a finding that an individual is a "debt collector " within [.D. N . Y. IS``'; / citation omitted; . " The Act prohibits the use the meaning of the Act, and thereby render him liable for its* of" false , deceptive , or misleading representation of means in* violation . SEE FIVE : 274 F. SUPP . I'd at GUY ; SEE also Fallice connection with the collection of any debt . " IS U.S. C.` ` Nat'l . Tax Funding . L.P. 225 1. 20 379, 4015 71. 29 13^ 16%2 6. FLICFA liability is imposed an " debt collectors" `ho Cir. Z^ ^holding " general partner exercising control over Engage in prohibited activities . IS U. S. C. { LEVEL. The statute the affairs " of's limited partnership engaged in debt collection Specifically defines debt collectors is those engaged in "any ming" be liable for violation of FucPAY . business the principle purpose of which is the collection of any debts , or who regularly collects or attempts to collect . debt owed or dur or asserted to be axed or due another . " 15 I` Disposition of the Motion* U.S.C. & l``'` ( emphasis addedj This court joins others in holding that individual FDICP." liability may be imposed* 324 under certain circumstances . While the Second Circuit has yet to rule explicitly on the Issue Where the complaint contains sufficient allegations at of individual FUCP & liability , many courts , including courts* personal involvement in the alleged violation , plaintiff states within this district , have recognized that individual liability* a claim for individual liability for violation of the FUCKA may be imposed where the defendant sought to be held liable* Upon review of the pleadings herein , the court holds that personally engaged in the prohibited conduct LE. Chiron*\\ Plaintiff has stated such a claim and therefore denies the The Ladle Co. ZUG WL TZISUS* LIE. U.N. Y. LONGY (officers* motion to dismiss . The motion is . accordingly , denied and Employees may he "jointly and severally liable with the agency where they have affirmatively acted "J. Williams ` Professional Collection Services , Inc., 2014 WE'L 546.2715 CONCLUSION # 4 1 E. D. N . Y. ZON's "high ranking employed , executive , or director of'& collection agency may fall within the statutory* The court declines to consider this motion is a motion for definition of a dicht collector ." TERE #51 F.SUPP . at summary judgment . The motion to dismiss is denied. The $7 {defendant who made actionable phone called could* Clerk of the Court is directed to terminate the motion and the be held personally liable for FACEA violation; accord* Parties are ordered to continue with discovery . Finer }. Formof Law ATSOME. . 274 F.SUPP. I'd ^#1 , 6{` [E. O. P . COUNTY ; HIRED ` Seiders , 194 F.R.D1. 43, 4^ ] SO ORDERED [ 1]. Cann. 19 94). Footnotes Plaintiff originally named riches Funeral Home , Inc . as a Incfendant but later dismissed the case against this Defendant End of Document* ` 2014 Thomson Reuters. No claim to original U.S. Government Works*
