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Case 7:11-cv-01037-ER-GAY Document 48 Filed 04/10/13 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

x
ELIZABETH COBLE, MILAGROS HARPER and
DENNIS HARPER, on behalf of themselves and
all others similarly situated,

USIDC SDNY
DOCU M ENT
ELEJNCA
DOC#
DATE

Plaintiffs,

-against-

MEMORANDUM DECISION

AND ORDER

11 Civ. 1037 (ER)(GAY)

COHEN & SLAMOWITZ, LLP, DAVID
COHEN, ESQ., MITCHELL SLAMOWITZ, ESQ.,
LEANDRE JOHN, ESQ. and CRYSTAL
S.A. SCOTT, ESQ.,

Defendants.

On or about February 15, 2011, plaintiffs commenced this class action asserting

violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 etseq.

Plaintiffs specifically allege that (1) defendants learned in November 2006 that affidavits

of service provided to defendants by their now-defunct process server (Mid lantic

Process) and the related attorney affirmations were substantively false and (2) despite

said knowledge, defendants continued to collect on the consumer debts in issue. On or

about December 9, 2011, plaintiffs filed an Amended Complaint as of right which added

a claim for actual damages under the FDCPA and certain factual allegations concerning

defendants’ collection actions against two of the named plaintiffs since the filing of the

original Complaint

By letter to Judge Ramos dated November 6, 2012, plaintiffs sought leave to file

a Second Amended Complaint; by letter dated November 27, 2012, defendants

opposed plaintiffs’ application in its entirety. On December 4, 2012, following a pre

Case 7:11-cv-01037-ER-GAY Document 48 Filed 04/10/13 Page 2 of 4

motion conference during which Judge Ramos heard arguments regarding the

proposed amendment, the Court granted leave to amend to the extent that plaintiffs

sought to add additional factual allegations disclosed in discovery and language

explicitly referencing discovery rule tolling. Judge Ramos also granted plaintiffs leave to

file a motion to amend regarding their request to add an actual damages subclass and

causes of action under New York law on behalf of the subclass only. The matter was

subsequently referred to the undersigned for general pretrial supervision.

Presently before this Court is plaintiffs’ motion to file a Second Amended

Complaint for the purpose of including: (1) two “actual damages subclasses” of

consumers who have been garnished or had bank accounts restrained as a result of

default judgments obtained by means of “nail and mail” affidavits of service executed by

Kenneth Vega or Alfred Smith; (2) a claim for actual and punitive damages under New

York General Business Law § 349 on behalf of the two actual damages subclasses

only; (3) a claim for actual and treble damages under New York Judiciary Law § 487 on

behalf of the two actual damages subclasses only; and (4) a claim for restitution based

on unjust enrichment on behalf of the two actual damages subclasses only.

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court

should freely give leave [to amend] when justice so requires.” Nonetheless, “it is within

the sound discretion of the district court to grant or deny leave to amend.”

Dun & Bradstreet Corp., 482 F3d 184, 200 (2d Cir. 2007). Leave to

amend may properly be denied if the amendment would be futile, as when the proposed

new pleading fails to state a claim on which relief can be granted.” Anderson News,

L.L.C. v. American Media, Inc., 680 F.3d 162, 185 (2d Cir, 2012) (citing cases).

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Case 7:11-cv-01037-ER-GAY Document 48 Filed 04/10/13 Page 3 of 4

The purpose of the proposed amendments at issue is to define and create a

universe of consumers who are allegedly entitled to recover actual damages and/or

restitution under the FDCPA and state law, measured by the amount of monies

collected by defendants from the consumers, post-judgment, since October 30, 2006

(Vega subclass) and June 14, 2012 (Smith subclass). Defendants contend that the

proposed amendments are barred by the Rooker-Feidman doctrine.1

The Rooker-Feidman doctrine bars claims “brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review and rejection of those

judgments.” See Exxon Mobile Cow. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84

(2005). More specifically, “a federal suit complains of injury from a state-court

judgment, even if it appears to complain only of a third party’s actions, when the third

party’s actions are produced by a state-court judgment and not simply ratified,

acquiesced in, or left unpunished by it. Where a state-court judgment causes the

challenged third-party action, any challenge to that third-party action is necessarily the

kind of challenge to the state judgment that only the Supreme Court can hear.”

Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 88 (2d Cir. 2005).

The FDCPA’s provision for the recovery of actual damages is “intended to

compensate a plaintiff for out of pocket expenses, personal humiliation, embarrassment,

mental anguish, and/or emotional distress that results from defendant’s failure to comply

with the FDCPA,” See Mira v. Maximum Recovery Solutions, Inc., No, 11-CV-1009,

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v.

Feldman, 460 U.S. 462 (1983).

Case 7:11-cv-01037-ER-GAY Document 48 Filed 04/10/13 Page 4 of 4

2012 WL 4511623, at *3 (E.D.N.Y. Aug. 31, 2012). Said types of actual damages are

clearly not barred by Rooker-Feidman and, indeed, the Amended Complaint added a

claim for actual damages under the FDCPA. On the other hand, via the proposed

amendments at issue, the two subclasses of plaintiffs also seek to recover actual

damages under the FDCPA and state law in the amounts collected post-judgment.

Defendants would have had no right to collect those monies without the State

Judgment; the State Judgment caused the actual damages sought to be recovered via

the proposed amendments. The proposed amendments, therefore, are barred by the

Rooker-Feldman doctrine. Accordingly, because the proposed amendments would be

futile, plaintiffs’ motion to amend is DENIED.

Dated: April

,2013

White Plains New York

SO ORDERED:

P1

GEORGEA YANTHIS USMJ

/

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