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Joseph Potvin and Janice Potvin v. Paul Law Office

May 25, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


Joseph and Janice Potvin have sued Paul Law Office, PLLC ("PLO"), in three counts.*fn1 They seek statutory damages under:

(1) the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 (Count I); (2) the New Hampshire statute prohibiting unfair collection practices, N.H. Rev. Stat. Ann. ("RSA") ch. 358-C (Count II); and (3) New Hampshire's Consumer Protection Act, RSA ch. 358-A (Count III). The Potvins' claims arise out of "several" telephone calls that, according to the Potvins, PLO made to them and to the parents of one of them, in an attempt to collect a debt. When PLO failed to appear, default was entered against it. See doc. no. 13. Before the court is the Potvins' motion for default judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. For the reasons that follow, the Potvins' motion for default judgment is denied.

The Legal Standard

"Because default has entered, the defendant[ ] [is] 'taken to have conceded the truth of the factual allegations in the complaint as establishing the grounds for liability.'" S.E.C. v. New Futures Trading Int'l Corp., No. 11-cv-532-JL, 2012 WL 1378558, at *1 (D.N.H. Apr. 20, 2012) (quoting Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir. 2002)). Moreover, "[w]here a court has jurisdiction over the subject matter and parties, the allegations in the complaint state a specific, cognizable claim for relief, and the defaulted party had fair notice of its opportunity to object, the court has the discretion to order default judgment 'without a hearing of any kind.'" Banco Bilbao Vizcaya Argentaria v. Family Rests., Inc. (In re The Home Rests., Inc.), 285 F.3d 111, 114 (1st Cir. 2002) (quoting HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 919 (1st Cir. 1988)). However, while "a defaulting party admits the factual basis of the claims asserted against it, the defaulting party does not admit the legal sufficiency of those claims." 10 James Wm. Moore, Moore's Federal Practice § 55.32[1][b] (3d ed. 2011) (citing Quirindongo Pacheco v. Rolon Morales, 953 F.2d 15, 16 (1st Cir. 1992)). Rather, "[t]he claimant must state a legally valid claim for relief," 10 Moore's, supra, and "[a] court may grant judgment by default only for relief that may lawfully be granted on the well-pleaded facts alleged by the claimant," id. (emphasis added). In other words, "a district court may, after entry of default, still conclude that a complaint fails to state a claim." Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 537 n.5 (1st Cir. 2011) (citing Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002)).


In their motion for default judgment, the Potvins argue that their complaint states legally valid claims for relief under the FDCPA as well as the New Hampshire statutes on which they base Counts II and III. After carefully examining the complaint, the court does not agree; none of the Potvins' claims adequately "state a specific, cognizable claim for relief," In re Home Restaurants, 285 F.3d at 114. In the discussion that follows, the court begins by describing the factual allegations in the complaint, and then examines each of the Potvins' claims.

A. Factual Allegations

The core factual allegations of the Potvins' complaint are these:

Plaintiff incurred a financial obligation (the "Debt") to an original creditor (the "Creditor").

The Debt arose from services provided by the Creditor which were primarily for family, personal or household purposes and . . . meets the definition of a "debt" under 15 U.S.C. § 1692a(5).

The Debt was purchased, assigned or transferred to [PLO] for collection, or [PLO] was employed by the Creditor to collect the Debt.

The Defendants attempted to collect the Debt and, as such, engaged in "communications" as defined in 15 U.S.C. § 1692a(2).

Compl. ¶¶ 8-11. The complaint then alleges that PLO "placed several calls to Plaintiffs, and to Janice Paul's [sic] parents who are uninterested third parties, in an attempt to collect the Debt," id. ¶ 12, and that PLO "regularly leaves voicemails with Plaintiff and Plaintiff's parents about a 'legal matter,'" id. ¶ 16. Finally, the complaint alleges:

Plaintiff asked [PLO] [if] it was a debt collector. [PLO] stated that it was not.

Plaintiff sent a letter to [PLO] via certified mail requesting that [PLO] cease placing calls to either Plaintiff or any third parties in an attempt to collect the Debt.

[PLO] signed for and received Plaintiff's letter on April 1, 2011. [PLO] placed a subsequent call to Plaintiff's parents on April 29, 2011.

To date, [PLO] has not sent any written validation to Plaintiff despite [P]laintiff's request for a statement indicating who the original creditor is.

[PLO] has not provided the plaintiff with [a] "mini-miranda".

Compl. ¶¶ 17-22.

Several things are notable about the Potvins' factual allegations. First, while paragraph eight mentions generally a financial obligation, and paragraph nine describes that debt as meeting the relevant statutory definition, the complaint includes no further factual allegations about the debt. Similarly, the Potvins assert that "the Debt is past the statute of limitations under New Hampshire State Laws," Compl. ¶ 16, but without any factual allegations concerning the debt, such as when it was incurred, the assertion that it lies outside the statute of limitations is a mere legal conclusion worthy of no consideration. See United Auto. Workers of Am. Int'l Union v. Fortuno, 633 F.3d 37, 41 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Plumbers' Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011). Beyond that, while the Potvins allege that PLO was a debt collector, and was attempting to collect a debt from them, the complaint makes no allegations about the content of any of PLO's communications, other than mentioning "voicemails . . . about a 'legal matter.'"*fn2 Thus, based on the allegations in the complaint, this is not a case such as Clayson v. Rubin & Rothman, LLC, in which "anyone who overheard the messages that [the defendant] left on plaintiff's mother's answering machine would know that [the plaintiff] owed a debt that was being collected by" the defendant. 751 F. Supp. 2d 491, 495 (W.D.N.Y. 2010) (internal ...

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