Opinion
6:20-CV-06030 EAW
2022-01-03
Amy Jacquelyn HARKINS, Plaintiff, v. CITIZENS NATIONAL BANK, Defendant.
Amy Jacquelyn Harkins, Rochester, NY, Pro Se. Geoffrey W. Millsom, Adler Pollock & Sheehan PC, Providence, RI, for Defendant.
Amy Jacquelyn Harkins, Rochester, NY, Pro Se.
Geoffrey W. Millsom, Adler Pollock & Sheehan PC, Providence, RI, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Pro se plaintiff Amy Jacquelyn Harkins ("Plaintiff") filed this action on January 13, 2020, asserting a claim of disability discrimination against defendant Citizens National Bank ("Defendant"). (Dkt. 1). Plaintiff also submitted a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and an affirmation of poverty in support thereof (Dkt. 2) ("IFP motion"), but thereafter paid the filing fee on April 8, 2021, thus rendering the IFP motion moot.
On May 25, 2021, Defendant filed a motion to dismiss Plaintiff's complaint. (Dkt. 15). Plaintiff filed response papers on June 14, 2021 (Dkt. 18), and Defendant replied on June 21, 2021 (Dkt. 19). For the following reasons, Defendant's motion is granted, and Plaintiff's complaint is dismissed. However, Plaintiff may file an amended complaint consistent with this Decision and Order within 45 days of entry of this Order.
BACKGROUND
The following facts are taken from Plaintiff's complaint. (Dkt. 1). As required at this stage of the proceedings, the Court treats Plaintiff's allegations as true.
In November 2017, Plaintiff was the victim of identity theft. (Id. at 8). Defendant refused to refund $700.00 that had been fraudulently taken out of Plaintiff's bank account. (Id. at 7). Plaintiff called the police while she was at the bank because she "did not like the way [she] was being treated." (Id. ).
Plaintiff wrote a complaint to Defendant's chairman. (Id. ). She informed him she "had a mental problem," hoping that Defendant "would be compassionate," but it was not. (Id. ).
After Plaintiff sent her complaint, she was "accused of fraudulently signing the $700.00 check" and Defendant "treated [her] like a criminal." (Id. at 7-8). Plaintiff "believe[s] that [Defendant] thinks [she has] a ‘intellectual disability,’ " but she does not. (Id. at 8).
Plaintiff further claims that Defendant has "the wrong balances on [her] credit card + line of credit" and that she was "bothered by [Defendant's] phone calls, about wrong balances on [her] accounts(s)...." (Id. ). Plaintiff asked Defendant "several times" to check its phone records, because she knew that if it did it would "find the truth." (Id. at 9). However, Defendant would only agree to pull the phone records for the dates and times identified by Plaintiff. (Id. ).
DISCUSSION
I. Standard of Review
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
II. Plaintiff's Claims
The Court construes Plaintiff's pro se complaint broadly. See Green v. United States , 260 F.3d 78, 83 (2d Cir. 2001) ("It is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to ‘raise the strongest arguments that they suggest.’ " (citation omitted)). Here, Plaintiff claims that she was discriminated against on the basis of a perceived intellectual disability when Defendant refused to refund her $700.00, which the Court construes as attempting to assert a discrimination claim pursuant to the Americans with Disabilities Act (the "ADA"). The Court further liberally construes Plaintiff's assertion that Defendant "bothered" her with phone calls regarding the incorrect balances on her accounts as attempting to assert a violation of the Fair Debt Collection Practices Act (the "FDCPA").
A. Disability Discrimination Claim
Defendant contends that Plaintiff's discrimination claim must be dismissed because she does not have standing to bring a claim under the ADA and she has failed to plead a discrimination claim, including because she does not allege that Defendant's communications were motivated by discriminatory intent. (Dkt. 15 at 10, 15-17).
Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182 ("Title III"), prohibits discrimination on the basis of disability in places of public accommodation. A bank is a place of public accommodation within the meaning of the ADA. See 42 U.S.C. § 12182(7)(F). To establish a Title III discrimination claim, a plaintiff must show "(1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide." Camarillo v. Carrols Corp. , 518 F.3d 153, 156 (2d Cir. 2008). "The ADA defines a disability as ‘(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).’ " Alexiadis v. N.Y. Coll. of Health Professions , 891 F. Supp. 2d 418, 428 (E.D.N.Y. 2012) (quoting 42 U.S.C. § 12102(1) ). Plaintiff has not plausibly alleged that Defendant regarded her as having an impairment that substantially limits one or more of her major life activities. Instead, she has merely asserted that she "believes" that Defendant regarded her as having an unspecified "intellectual disability." (Dkt. 1 at 8). This conclusory allegation is insufficient to support a Title III discrimination claim. Plaintiff has further alleged no facts tying the purported refusal to refund her $700.00 with the perceived disability; to the contrary, she alleges that the refusal occurred before she sent the complaint in which she disclosed her "mental problem." (Id. at 7). Plaintiff has accordingly failed to state a plausible claim for violation of the ADA.
B. Debt Collection Phone Calls Claim
Plaintiff also has not plausibly alleged that Defendant violated the law by repeatedly calling her regarding the "wrong balances" it had recorded for her accounts. The FDCPA prohibits a "debt collector" from "causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." 15 U.S.C.A. § 1692d(5). However, the term "debt collector," as used in the FDCPA, does not encompass "those who seek only to collect for themselves loans they originated[.]" Henson v. Santander Consumer USA Inc. , ––– U.S. ––––, 137 S. Ct. 1718, 1721, 198 L.Ed.2d 177 (2017) ; see also Caires v. JP Morgan Chase Bank, N.A. , 880 F. Supp. 2d 288, 306 (D. Conn. 2012) ("It is well established that the FDCPA applies only to persons who collect the debts of others and does not apply to those who collect their own debts."). Here, because Defendant was calling Plaintiff regarding the balances on accounts she maintained with Defendant, the FDCPA simply does not apply. Accordingly, Plaintiff has not asserted a viable federal claim based on the alleged bothersome phone calls.
Defendant does not specifically address in its motion the FDCPA claim, but instead construes Plaintiff's complaint as asserting a claim for slander. (See Dkt. 15 at 10 ("It appears as though Plaintiff alleges that the purported communication by Citizens with Plaintiff's case manager constitutes the slanderous act."); see also Dkt. 1 at 5 ("I want an apology for slandering my name to my case manager.")). "Under New York law, the elements for a slander cause of action are (i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege." Sleepy's LLC v. Select Comfort Wholesale Corp. , 909 F.3d 519, 528 (2d Cir. 2018) (quotations and citation omitted). Although she alleges generally that Defendant believes she has an intellectual disability (Dkt. 1 at 8), Plaintiff does not specifically identify the slanderous statements made by Defendant, nor does she allege that any false statements were made "with the applicable level of fault." Accordingly, Plaintiff has failed to plausibly allege a claim for slander.
III. Leave to Amend
Generally, the Court will afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Abbas v. Dixon , 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks omitted); Gomez v. USAA Fed. Sav. Bank , 171 F.3d 794, 795-96 (2d Cir. 1999) (pro se plaintiffs, whether proceeding in forma pauperis or those who have paid the filing fee, should be permitted to at least once amend their complaint when it "gives any indication that a valid claim might be stated"). However, leave to amend pleadings is properly denied where amendment would be futile. See Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000) ; Ruffolo v. Oppenheimer & Co. , 987 F.2d 129, 131 (2d Cir. 1993) ("Where it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend.").
The Court finds that Plaintiff should be afforded an opportunity to amend her disability discrimination claim, as well as any intended claim for slander, as the Court cannot conclude that there is no possibility Plaintiff could successfully state such claims. However, because the issue with Plaintiff's FDCPA claim is substantive, and cannot be cured with additional pleading, the Court dismisses this claim with prejudice. Plaintiff may file an amended complaint consistent with this Decision and Order within 45 days of entry of this Order . Plaintiff is advised that an amended complaint is intended to completely replace the prior complaint in the action, and thus it "renders [the original complaint] of no legal effect." Int'l Controls Corp. v. Vesco , 556 F.2d 665, 668 (2d Cir. 1977). Therefore, Plaintiff's amended complaint must include all necessary allegations so that it may stand alone as the sole complaint in the action.
CONCLUSION
For the reasons set forth above, the Court dismisses Plaintiff's disability discrimination claim and any intended slander claim without prejudice, and dismisses her claim for improper debt collection phone calls with prejudice. Further, Plaintiff is granted leave to file an amended complaint consistent with this Decision and Order.
SO ORDERED.