Ben Gross v. David Maitlin

CLD-147 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1195
___________
BEN GROSS,
Appellant
v.
DAVID E. MAITLIN
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D. N.J. No. 2-11-cv-04998)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted for Possible Dismissal
Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 7, 2013
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: April 2, 2013)
_________
OPINION
_________
PER CURIAM
Ben Gross appeals from an order of the United States District Court for the
District of New Jersey, which dismissed his complaint for failure to state a claim upon
which relief may be granted. We will dismiss the appeal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
Gross filed a very spare complaint, alleging that defendant David Maitlin had been
“retained as legal counsel” in connection with litigation in state court and that Maitlin had
threatened Gross with jail. He alleged that Maitlin’s action constituted harassment or
abuse in violation of 15 U.S.C. § 1692d (part of the Fair Debt Collection Practices Act
(“FDCPA”)). The District Court dismissed the complaint without prejudice, as it could
not “ascertain the legal basis of Plaintiff’s claims.” Dkt. #8, at 2. Gross filed a document
construed as an amended complaint, in which he clarified that Maitlin was the attorney
for his opponents in the state court action, and to which he appended a “Notice of Motion
for an Order Enforcing Litigants’ Rights” that had been filed by Maitlin in the state court
litigation. The notice contends that Gross had failed to comply with an information
subpoena compelling him to provide tax returns, and stated that Maitlin would apply to
the state court for an order that would direct, inter alia, that if Gross failed to appear in
court on the return date, he would “be arrested by the Sheriff and confined in the county
jail” until he complied with the information subpoena. Dkt. 13, attachment.
The District Court granted Maitlin’s motion to dismiss the complaint, and denied
Gross’s motion to amend his complaint to add allegations of due process, fraud, and/or
ethical violations. Gross filed a motion for reconsideration, which the District Court also
denied. Gross timely appealed.
We have jurisdiction under 28 U.S.C. § 1291, and our review of an order granting
a motion to dismiss is plenary. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d
2
Cir. 2008).1 A threshold requirement for application of the FDCPA is that the prohibited
practices are used in an attempt to collect a “debt.” Zimmerman v. HBO Affiliate Group,
834 F.2d 1163, 1167 (3d Cir. 1987). Maitlin’s attempt to have Gross comply with an
information subpoena2 is not an attempt to collect a “debt.” The obligation to produce
tax returns is not a “debt,” but even if we look at the broader purpose of Maitlin’s state-
court “Notice of Motion,” the FDCPA applies only to debts arising out of a “transaction,”
which encompasses “consensual or contractual arrangements, not damage obligations.”
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir. 1998). As we have
previously noted, “nothing in the statute or the legislative history leads us to believe that
Congress intended to equate asserted tort liability with asserted consumer debt.”
Zimmerman, 834 F.2d at 1168.
Further, even if the FDCPA applied, Maitlin’s court-authorized attempt to collect
a judgment does not constitute harassment or abuse in violation of § 1692d. To be sure,
the FDCPA also prohibits the “representation or implication that nonpayment of any debt
will result in the arrest or imprisonment of any person . . . unless such action is lawful
and the . . . creditor intends to take such action.” § 1692e(4). But here, Maitlin’s action
1
We have jurisdiction to review both the order granting Maitlin’s motion to dismiss and
the motion denying reconsideration. Fed. R. App. P. 4(a)(4)(A).
2
When a judgment-debtor fails to obey an information subpoena, New Jersey court rules
provide that proceedings to seek relief “shall be commenced by notice of motion,” and
that such motion “shall state that the relief sought will include an order . . . directing that
if the judgment-debtor fails to appear in court on the return date or to furnish the required
3
was lawful, and he was directed by state court rule to indicate that arrest or imprisonment
might result from failing to comply with the subpoena.
We also agree with the District Court’s decision to deny Gross’s motion to further
amend his complaint and his motion for reconsideration. Gross sought to amend his
complaint to add allegations of “violations of due process, and obstruction of justice,
clauses of Constitutional Rights, Amendments 5 and 14, And Attorney ethic rules R.P.C.
3.4 Rules of Professional Conduct DR 7-105 And FRAUD.3” Motion to Amend
Complaint, dkt. #43 at 3 (emphases in original). As Maitlin does not appear to be a state
actor, we discern no basis for federal court jurisdiction, absent the claims under the
FDCPA that were properly dismissed. Thus, amendment would have been futile.
For the foregoing reasons, we will dismiss the appeal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
answers, he or she shall be arrested and confined to the county jail until he or she has
complied with the . . . information subpoena.” New Jersey Rules of Court 6:7-2(e).
3
Elsewhere, Gross states that his allegations of fraud are brought pursuant to “28 USC
FRAUD.” Dkt. 43 at 3; Dkt. 56 at 7. We are not aware of any such provision in Title 28.
4