Nicholson v. Forster & Garbus LLP ( 2014 )

13-2394
Nicholson v. Forster & Garbus LLP
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 A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of June, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROSEMARY S. POOLER,
8 Circuit Judges,
9 CHRISTINA REISS,
10 District Judge.*
11
12 - - - - - - - - - - - - - - - - - - - -X
13 JACK NICHOLSON, INDIVIDUALLY AND ON
14 BEHALF OF A CLASS,
15
16 Plaintiff-Appellant,
17
18 -v.- No. 13-2394
19
20 FORSTER & GARBUS LLP, RONALD FORSTER,
21 MARK A. GARBUS,
22
23 Defendants-Appellees.
*
Chief Judge Christina Reiss, of the United States
District Court for the District of Vermont, sitting by
designation.
1
1 - - - - - - - - - - - - - - - - - - - -X
2 FOR PLAINTIFF-APPELLANT: ARZA FELDMAN, Feldman and
3 Feldman, Uniondale, NY.
4
5 FOR DEFENDANTS-APPELLEES: JONATHAN B. BRUNO, Kaufman,
6 Borgeest & Ryan LLP, New York,
7 NY.
8
9 Appeal from a judgment of the United States District
10 Court for the Eastern District of New York (Feuerstein, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Jack Nicholson, individually and on behalf of a
17 purported class, appeals the judgment of the United States
18 District Court for the Eastern District of New York,
19 dismissing on summary judgment Nicholson’s complaint, which
20 alleged violations of the Fair Debt Collection Practices Act
21 (“FDCPA”), 15 U.S.C. §§ 1692-1692p, by Forster & Garbus LLP,
22 Ronald Forster, and Mark A. Garbus (collectively, “Forster &
23 Garbus”). We assume the parties’ familiarity with the
24 underlying facts, the procedural history, and the issues on
25 appeal.
26
27 We review de novo a grant of summary judgment, drawing
28 all reasonable inferences in the non-moving party’s favor.
29 See Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012).
30 Summary judgment is appropriate if the record shows that
31 “there is no genuine dispute as to any material fact and the
32 movant is entitled to judgment as a matter of law.” Fed. R.
33 Civ. P. 56(a). A genuine dispute of material fact exists
34 only “where the evidence is such that a reasonable jury
35 could decide in the non-movant’s favor.” Beyer v. Cnty. of
36 Nassau, 524 F.3d 160, 163 (2d Cir. 2008).
37
38 Under the FDCPA, “[a] debt collector may not use any
39 false, deceptive, or misleading representation or means in
40 connection with the collection of any debt.” 15 U.S.C.
41 § 1692e. Examples of prohibited conduct include: (1) “[t]he
42 false representation or implication that any individual is
43 an attorney or that any communication is from an attorney”;
44 (2) “[t]he use of any false representation or deceptive
45 means to collect or attempt to collect any debt or to obtain
46 information concerning a consumer”; and (3) “[t]he use of
47 any business, company, or organization name other than the
2
1 true name of the debt collector’s business, company, or
2 organization.” Id. § 1692e(3), (10), (14).
3
4 To determine whether a communication violates § 1692e,
5 this Court applies “an objective standard based on the
6 ‘least sophisticated consumer.’” Clomon v. Jackson, 988
7 F.2d 1314, 1318 (2d Cir. 1993). “Under this standard,
8 collection notices can be deceptive if they are open to more
9 than one reasonable interpretation, at least one of which is
10 inaccurate.” Easterling v. Collecto, Inc., 692 F.3d 229,
11 233 (2d Cir. 2012) (per curiam) (internal quotation marks
12 omitted). Because the test is objective, “the least
13 sophisticated consumer test pays no attention to the
14 circumstances of the particular debtor in question.” Id. at
15 234.
16
17 However, “[i]t should be emphasized that in crafting a
18 norm that protects the naive and the credulous the courts
19 have carefully preserved the concept of reasonableness.”
20 Clomon, 988 F.2d at 1319. “Accordingly, FDCPA protection
21 does not extend to every bizarre or idiosyncratic
22 interpretation of a collection notice . . . .” Easterling,
23 692 F.3d at 233-34 (internal quotation marks omitted).
24
25 Finally, in circumstances such as those presented in
26 this case, “we agree with the district court that the
27 question of deceptiveness is appropriate for summary
28 judgment.” Schweizer v. Trans Union Corp., 136 F.3d 233,
29 238 (2d Cir. 1998); cf. Vincent v. The Money Store, 736 F.3d
30 88, 103 (2d Cir. 2013) (describing a circumstance when
31 conduct that putatively violated the FDCPA turned on a
32 disputed issue of fact).
33
34 Jindal Intellicom Contact Centers (“Intellicom”), a
35 call center located in India, made debt collection calls for
36 Forster & Garbus. Nicholson argues that an Intellicom
37 employee’s statement that he was calling “on behalf of
38 Forster & Garbus” would have suggested to the least-
39 sophisticated consumer that the caller was a lawyer.
40 Nicholson admits, however, that Intellicom was in fact
41 Forster & Garbus’s agent. See Appellant’s Br. at 15.
42 Therefore, the caller’s statement was not actually false.
43
44 Nor was the statement misleading or deceptive under the
45 least-sophisticated-consumer test. The least sophisticated
46 consumer, if the standard is to be taken literally, would
47 not even know what “Forster & Garbus” is. The terms “law,”
3
1 “lawyer,” “attorney,” “legal,” etc., were never used, and
2 the phrase “settle this account,” in context, did not
3 suggest that the caller was a lawyer. Cf. Clomon, 988 F.2d
4 at 1316-17, 1320-21 (concluding that use of word “attorney”
5 in collection notice’s letterhead and signature line “was
6 sufficient to give the least sophisticated consumer the
7 impression that the letters were communications from an
8 attorney” even though the attorney “played virtually no
9 day-to-day role in the debt collection process”). Moreover,
10 not every sequence of names with an ampersand is a law firm.
11
12 Nicholson likely knew that Forster & Garbus was a law
13 firm because his lawyer was in negotiations with that firm.
14 But “the least sophisticated consumer test pays no attention
15 to the circumstances of the particular debtor in question.”1
16 Easterling, 692 F.3d at 234.
17
18 We have considered all of Nicholson’s remaining
19 arguments and conclude that they are without merit.2 The
20 judgment of the district court is hereby affirmed.
21
22 FOR THE COURT:
23 CATHERINE O’HAGAN WOLFE, CLERK
24
25
1
If we were to consider Nicholson’s circumstances, we
would recognize that Nicholson knew his counsel was engaged
in settlement discussions with Forster & Garbus and
therefore attached no importance to the call. Indeed,
Nicholson immediately brushed away the caller’s inquiries by
referring the caller to his lawyer.
2
Judge Jacobs (writing for himself) deplores the tone
and content of the phone conversation held by Abraham
Kleinman, counsel for Nicholson in the district court, in
which he mocked two Intellicom employees who were being
courteous to him, and wasted thereby the time of a fellow
member of the bar. See J.A. 142-55; N.Y. Rules of
Professional Conduct 4.4(a) (2013) (“In representing a
client, a lawyer shall not use means that have no
substantial purpose other than to embarrass or harm a third
person . . . .”).
4