18-3837-cv Luci v. Overton Russell

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of October, two thousand nineteen.

Present: JON O. NEWMAN, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

PATRICK LUCI, on behalf of himself and others similarly situated,

Plaintiff-Appellant,

v. 18-3837-cv

OVERTON, RUSSELL, DOERR AND DONOVAN, LLP, THOMAS R. MCCORMICK, BRIAN S. STROHL, LINDA L. DONOVAN,

Defendants-Appellees. _____________________________________

For Plaintiff-Appellant: DANIEL A SCHLANGER, Schlanger Law Group LLP, New York, New York (Anthony J. Pietrafesa, Schenectady, New York, on the brief)

For Defendants-Appellees: PAUL A. SANDERS, Barclay Damon LLP, Rochester, New York

1 Appeal from a judgment of the United States District Court for the Northern District of

New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Patrick Luci appeals from a decision dismissing his complaint. Luci alleged violations

of the Fair Debt Collection Practices Act,

et seq., (“FDCPA”) and New York

General Business Law (“GBL”) § 349. Defendants successfully moved to dismiss Luci’s

complaint for failure to state a claim. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

* * *

We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6). Forest Park

Pictures v. Universal Television Network, Inc.,

(2d Cir. 2012). To survive a

Rule 12(b)(6) motion, the plaintiff’s complaint must “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly,

(2007). A plaintiff must “plead[] factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal,

(2009). In evaluating a Rule

12(b)(6) motion, we assume as true all factual allegations asserted in the complaint.

Luci’s complaint is based on two FDCPA provisions and three provisions of New York

state law. Section 1692e provides that “[a] debt collector may not use any false, deceptive, or

misleading misrepresentation or means in connection with the collection of any debt.” 15

U.S.C. § 1692e. Section 1692f prohibits using “unfair or unconscionable means to collect or

attempt to collect any debt.” Id. § 1692f. Similarly, GBL § 349(a) prohibits “[d]eceptive acts

or practices in the conduct of any business, trade or commerce.” New York’s Civil Practice

2 Law and Rules (“CPLR”) § 308(4) authorizes “nail-and-mail” service, which involves “affixing

the summons to the door” of a defendant’s home or place of business and “mailing the summons

to such person at his or her last known residence.” When service is made in this fashion, “proof

of such service shall be filed with the clerk of the court designated in the summons within twenty

days of either such affixing or mailing, whichever is effected later,” and “service shall be

complete ten days after such filing.” CPLR § 308(4). CPLR § 320 provides that the

defendant must make his appearance “within thirty days after service is complete” under § 308.

Luci claims that the summons he received violates the FDCPA and GBL. Specifically,

he asserts that the summons should have read that Luci must respond “within thirty days after

service is complete,” rather than omitting the last two words. The omission of “is complete”

rendered the summons materially misleading, he argues, because the “least sophisticated

consumer,” Clomon v. Jackson,

(2d Cir. 1993), would have thought that he

only had thirty days to respond to the summons, as opposed to the forty-day minimum provided

by CPLR § 308(4).

Assuming the omission of “is complete” from the summons is technically inaccurate and

misleading, Luci must still demonstrate that it “has the potential to affect the decision-making

process of the least sophisticated consumer,” i.e., the omission is materially misleading. Cohen v.

Rosicki, Rosicki & Assocs., P.C.,

(2d Cir. 2018) (quotation marks and citation

omitted). “The materiality inquiry focuses on whether the false statement would frustrate a

consumer’s ability to intelligently choose his or her response.”

(quotation marks and

citation omitted). Specifically, a misrepresentation is material if it “could mislead a

putative-debtor as to the nature and legal status of the underlying debt, or . . . could impede a

3 consumer’s ability to respond to or dispute collection.”

(quotation marks and citation

omitted).

The sole effect Luci claims the misleading summons would have is to “prompt a

consumer[ ]operating under a false sense of urgency with regard to his or her time to put in an

answer[] to either . . . settle rather than litigate, or determine it was too late for the consumer to

do anything.” A. 6. Even assuming the summons created a false sense of urgency, the

perceived reduction in time to respond from at least forty days to thirty days would not have

impacted the least sophisticated consumer’s decision-making process. See Cohen,

. The least sophisticated consumer is “neither irrational nor a dolt.” Ellis v. Solomon &

Solomon, P.C.,

(2d Cir. 2010). The purported misinformation on which Luci

relies misrepresents neither “the nature [nor] legal status of the underlying debt.” Cohen,

(quotation marks and citation omitted). And, as to “a consumer’s ability to respond

to or dispute collection,”

any rational response to such a notice would eliminate any

impediment. Either a consumer would promptly respond to the summons or engage an

attorney—as Luci did—who could then clarify the precise deadline for responding. The

illusory concerns Luci cursorily references in his complaint do not amount to plausible

allegations of a materially misleading statement.

Indeed, requiring the addition of the words “is complete” in the summons is no less

confusing to the least sophisticated consumer. Luci does not contend that Overton Russell

should have notified him once service was complete within the meaning of CPLR § 308(4)—or

that, alternatively, the summons itself should have contained § 308(4)’s complete text. But

without such notification Luci could not have known the actual deadline to respond, at least not

without research or consultation with a lawyer. An amorphous deadline informing the

4 consumer that he must respond when service is complete is thus not materially superior to the

notice that was provided.

The same rationale bars Luci’s claim under New York’s GBL. To establish a violation of

GBL § 349, an act must be “deceptive or misleading in a material way.” Oswego Laborers’

Local 214 Pension Fund v. Marine Midland Bank,

(1995) (emphasis added).

As explained above, any inaccuracies in the summons are not material.

We have considered Luci’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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