IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYL VANIA 


ANTHONY POPSON, ) 


) 

Plaintiff ) 

) 

v. ) Case No. lO-cv-77E 

) 

DA VID R. GALLOWAY, individually ) 

and on behalf of, ) 

FULTON, FRIEDMAN, and ) 

GULLACE, LLP, ) 

) 

Defendant ) 

) 

OPINION 

Pending before this Court is the "Motion of Defendants David R. Galloway and Fulton, 

Friedman, and Gullace, LLP. to Dismiss" pursuant to Fed.R.Civ.P. l2(b)(6) the Complaint filed 

against them by Plaintiff Anthony Popson [Doc. #4]. Plaintiff filed this Complaint on April I, 

2010, alleging that Defendants violated several provisions ofthe Fair Debt Collection Practices 

Act ("FDCPA") 15 U.S.c. § 1692. In sum, he alleges that Defendants Galloway and Fulton, 

Friedman, and Gullace, LLP. sought to collect a debt from him without any knowledge or 

documentation in support, as required by Pennsylvania law, and thus violated the FDCP A. 

For the reasons set forth below, the Defendants' Motion to Dismiss is granted, and the 

Complaint filed against them is dismissed. Said dismissal, however, is without prejudice to 

Plaintiff to file an Amended Complaint within the time frame stated in the Order accompanying 

this Opinion. 

Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 1 of 16
I. Factual Allegations 

In his Complaint, Plaintiff alleges the following. On or about September 14, 2009, 

Defendant Galloway, an attorney then employed by Mann Bracken, LLP., filed a complaint in 

the Elk County Court ofCommon Pleas on behalf of Midland Funding, LLC., seeking judgment 

against Plaintiff for an alleged debt owed by Plaintiff to Midland Funding in the amount of 

$14,702.49. Complaint, ~ 13. Galloway attached to the state court complaint an unsigned, 

unverified computer printout that established the amount ofthe alleged debt. Id. at ~16. He did 

not attach a copy of the credit card agreement, or any other documentation detailing the 

purchases, payments, interest and late charges, if any. Id. at mJ14-16. Defendant Galloway also 

failed to obtain and/or review the documentation substantiating the debt buyer's right to 

judgment prior to filing the Complaint. Id. at ~ 17. On or about October 1,2009, Plaintiff, then 

acting pro se, filed a response to the complaint, disputing the claimed charges and requesting 

copies of the original credit card application, evidence of charges, and accounting of all 

payments and charges. Id. at ~ 18. Defendant Galloway did not respond to the letter nor validate 

the debt. Id. at ~ 19. He also failed to provide Plaintiff with any documentation substantiating 

the debt. Id. Notwithstanding the fact that Defendant Galloway did not have any 

documentation, supporting the debt buyer's right to judgement, he went forward with the state 

court case against Plaintiff. Id. at,-r 20. 

On or about March 19,2010, Defendant Galloway, now employed by Defendant Fulton, 

Friedman, and Gullace, LLP., entered an appearance on behalf ofMidland Funding in order to 

file a Praecipe to Discontinue the case against Plaintiff without prejudice. Id. at mJ22 and 24. In 

the letter accompanying the Praecipe to Discontinue, Galloway identified himself as a debt 

collector and that this was an attempt to collect a debt. Id. at,-r 23. 

2 

Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 2 of 16
As ofthe date of the filing of the instant lawsuit on April 1, 2010, Defendant Galloway 

still had not furnished documentation substantiating the debt allegedly owed by Plaintiff. Id. at ~ 

21. 

II. Standard of Review 

Rule 12(b )(6) authorizes dismissal of a complaint for "failure to state a claim upon which 

relief can be granted." Fed.R.Civ.P. 12(b)(6). As explained by the Third Circuit Court in Fowler 

v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009): 

when presented with a motion to dismiss for failure to state a claim, district courts 

should conduct a two-part analysis. First, the factual and legal elements of a claim 

should be separated. The District Court must accept all of the complaint's 

well-pleaded facts as true, but may disregard any legal conclusions. Id. Second, a 

District Court must then determine whether the facts alleged in the complaint are 

sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 1950. 

In other words, a complaint must do more than allege the plaintiff's entitlement to 

relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 

515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, "[w]here the 

well-pleaded facts do not permit the court to infer more than the mere possibility 

of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the 

pleader is entitled to relief.' " Iqbal, 129 S.Ct. at 1949. This "plausibility" 

determination will be "a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense." Id. 

Fowler, 578 F.3d at 210-211. See also Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. 

Twombly, 127 S.Ct. 1955, 1965-66 (2007) ("a complaint must contain sufficient factual matter, 

accepted as true, to 'state a claim to relief that is plausible on its face.' 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."); Twombly, 127 S.Ct. at 1965 

(factual allegations of a complaint "must be enough to raise a right to relief above the 

speCUlative level."). "This [standard] 'does not impose a probability requirement at the pleading 

3 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 3 of 16
stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery 

will reveal evidence of the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 

234 (3d Cir. 2008) (quoting Twombly, 127 S.Ct. at 1965). Thus, "a plaintiffs obligation to 

provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, 

and a formulaic recitation ofthe elements of a cause of action will not do." Twombly, 127 S.Ct. 

at 1965 (citations omitted). 

In deciding motions to dismiss pursuant to Rule 12(b)( 6), courts generally consider the 

allegations in the complaint, matters of public record, and documents that form the basis of a 

claim. Lum v. Bank ofAmerica, 361 F.3d 217, 222 (3d Cir. 2004). In this case, Defendants 

attached ten exhibits to their Brief in Support Of Motion To Dismiss: eight court filings from the 

underlying state court case and two affidavits. The eight court filings are public records and 

therefore, can be, and have been, considered by this Court in deciding Defendants' Motion to 

Dismiss. The two affidavits go beyond the scope ofthe complaint and therefore, the Court has 

not taken these documents into consideration in deciding the merits ofthe Defendants' 

RuleI2(b)(6) Motion to Dismiss. 

III. Legal Analysis 

A. FDCPA and Relevant Provisions 

The purpose of the FDCP A is "to eliminate abusive debt collection practices by debt 

collectors, to ensure that those debt collectors who refrain from using abusive debt collection 

practices are not competitively disadvantaged, and to promote consistent State action to protect 

consumers against debt collection abuses." 15 U.S.C. § 1692e. In his Complaint, Plaintiff 

alleges that, in attempting to collect a debt from him, the defendants violated three provisions of 

4 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 4 of 16
the FDCPA: (1) 15 U.S.C. § 1692d, which prohibits any conduct, the natural result of which is to 

harass, oppress, or abuse; (2) 15 U .S.C. § 1692e, which prohibits false, deceptive, or misleading 

representations; and (3) 15 U .S.C. § 1692f, which prohibits the use of unfair or unconscionable 

means to collect or attempt to collect any debt. 

Alleged violations ofthe FDCP A are to be examined from the perspective ofthe "least 

sophisticated consumer." Brown v. Card Service Center, 464 F.3d 450, 453 (3d Cir. 2006) 

(citation omitted). This standard requires "more than 'simply examining whether particular 

language would deceive or mislead a reasonable debtor' because a communication that would 

not deceive or mislead a reasonable debtor might still deceive or mislead the least sophisticated 

debtor." Id. at 453-54 (citation omitted). 

B. "Debt Collectors" 

Initially, for the Defendants to be liable under the FDCPA, they must fall within the 

definition of a "debt collector." A "debt collector" is "any person who uses any instrumentality 

of interstate commerce or the mails in any business the principal purpose of which is the 

collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, 

debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). Defendants 

contend that the fact that they are "debt collectors" in other instances does not make them "debt 

collectors" in this case. Defendants' Brief in Support ofMotion to Dismiss, p. 5. 

The Supreme Court has held that law firms and lawyers may qualify as "debt collectors" 

ifthey regularly engage in consumer debt-collection, even if their actions only involve litigation 

related activities. Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489 (1995). In Heintz, the Court 

noted that a previous version ofthe FDCPA included an express exemption for lawyers that was 

5 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 5 of 16
later repealed without creating a narrower, litigation-related exemption, making clear Congress's 

intent that, "lawyers be subject to the Act whenever they meet the general 'debt-collector' 

definition." Id. at 294. Other courts have found individual attorneys and employees with 

varying levels ofdirect and indirect action to be "debt collectors" liable for violations ofthe 

FDCPA. See Pollice v. National Tax Funding, L.P., 225 F.3d 379, 405 (3d Cir. 2000) (finding a 

general partner who exercised control over a limited partnership to be liable for the acts of the 

partnership under the FDCPA); Evans v. Midland Funding LLC., 574 F. Supp. 2d 808, 818-19 

(S.D. Ohio 2008) (finding three attorneys employed by a law firm could be liable as a matter of 

law based on the plaintiff's allegation that they had signed a previous state court complaint); 

Teng v. Metropolitan Retail Recovery. Inc., 851 F. Supp. 61,67 (E.D. N.V. 1994) (finding 

individual employees were "debt collectors" who were each affirmative actors and tortfeasors 

liable under the FDCP A when they had signed letters or authorized others to sign letters 

allegedly in violation of the act). 

This categorization of "debt collector" takes into account an attorney or law firm's 

involvement with a particular case, but also the role debt collection plays in the defendant actor's 

general practice. Additional factors a court should consider in determining whether an attorney 

or law firm is a "debt collector" include: (l) the volume of the actor's collection activities; (2) 

the frequent use of a particular debt collection document or letter; (3) whether there exists a 

steady relationship between the actor and a particular client creditor; (4) what portion of the 

actor's overall caseload is related to collection actions; and (5) what percentage of revenues 

derive from debt collection activities. Evans, 574 F. Supp. 2d at 818. 

6 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 6 of 16
Defendant Galloway argues that under Pennsylvania law only the signer of a complaint is 

the attorney of record responsible for its contents, and since he did not sign any ofthe filings in 

the underlying state court action he cannot be responsible under the FDCPA. Defendants' Reply 

Brief in Support of Defendants' Motion to Dismiss ("Defendants' Reply Brief'), pp.l ~3, 

However, since various direct and indirect acts have qualified individuals as "debt collectors" 

liable under the FDCPA, the determination of whether either Defendant is a "debt collector" 

goes beyond identifying the attorney of record and requires discovery into facts regarding the 

nature of each defendant's legal practice outside the scope of a Rule 12(b)( 6) Motion. 

Plaintiff alleges Defendant Galloway filed the state court complaint against him seeking 

judgment for an alleged debt owed by Plaintiff. Complaint, ~ 13. Additionally, while Defendant 

Galloway did not sign the state court complaint, his name appears beneath the "counsel of 

record" signature line on the complaint along with a number ofother Mann Bracken attorneys. 

Exhibit I to Defendants' Reply Brief. PlaintifTfurther alleges that Defendant Galloway, once 

employed by Defendant Fulton Friedman & Gullace, entered his appearance on behalf of 

Midland Funding in the state court lawsuit, and filed a Praecipe to Discontinue the state court 

action. Id. at ~ 22. On the filed "Entry of Appearance" document, Defendants describe 

themselves as "Attorneys in the Practice ofDebt Collection" and at the bottom of Defendant 

Galloway's letter to the Elk County Prothonotary enclosing the Praecipe to Discontinue, on 

Fulton Friedman & Gullace letterhead, it is stated: "THIS IS AN ATTEMPT BY A DEBT 

COLLECTOR TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE 

USED FOR THAT PURPOSE," See Exhibit C to Plaintiffs Complaint. Taking all ofthis into 

7 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 7 of 16
consideration, we find that Plaintiff has sufficiently alleged that both defendants are "debt 

colI ectors." 

C. Plaintiff's FDCPA claim against David Galloway 

As stated above, Plaintiffs contention that Defendant Galloway violated 15 U .s.C. §§ 

l692d, 1 692e, and 1692f stems from Defendant Galloway's filing a debt collection law suit 

against Plaintiff on behalfof Midland Funding in the Elk County Court of Common Pleas. Id. at 

~~ 13-25. Specifically, Plaintiff alleges that prior to the filing ofthe civil complaint, Galloway 

failed to obtain and/or review the documentation substantiating the claim and proceeded with the 

suit without documentation detailing the purchases, payments, interest, and late charges, making 

it impossible for Plaintiff to determine whether or not he owed the alleged debt and if it was 

correctly calculated, conduct which violated Pennsylvania Rule of Civil Procedure section 

1 019(i) and ultimately, the FDCPA. Id. at 15 and 17. Pa.R.Civ.P. 1 019(i) states that in a 

credit collection action, a creditor must "attach the writings which assuredly establish [the 

creditor's] right to judgment." 

1. Plaintiff's Claim against Defendant Galloway for Harassment under § 1692d 

Plaintiff contends that the above-described conduct by Defendant Galloway violated 15 

U.S.C. § 1692d. Id. at ~ 29. This provision of the FDCPA prohibits "any conduct the natural 

consequence ofwhich is to harass, oppress, or abuse any person in connection with the 

collection of a debt." 15 U.S.C. § 1692d. The provision enumerates nonexclusive examples of 

the type of conduct prohibited including the use or threat ofviolence, the use of obscene or 

profane language, the publication of a list of consumers who allegedly refuse to pay debts, the 

advertisement for sale of any debt to coerce payment, the causing of a telephone to ring 

8 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 8 of 16
continuously, or the placement oftelephone calls without a meaningful disclosure ofthe caller's 

identity. Id. 

In Harvey v. Great Seneca Financial Corp., 453 F.3d 324 (6th CiT. 2006), the Sixth 

Circuit Court addressed similar allegations; the plaintiff consumer brought suit against the 

defendant debt collector and its law firm for filing a state-court collection action with "no 

documentation" to prove the debt owed. The court recognized that the question ofwhether a 

defendant's actions constitute harassment will ordinarily be submitted to a jury, but that as a 

matter oflaw: 

Even when viewed from the perspective of an unsophisticated consumer, the 

filing of a debt collection lawsuit without the immediate means of proving the 

debt does not have the natural consequence of harassing, abusing, or oppressing a 

debtor. Any attempt to collect a defaulted debt will be unwanted by a debtor, but 

employing the court system in the way alleged by [plaintiff] cannot be said to be 

an abusive tactic under the FDCP A. 

Id. at 330-31. The Harvey court also noted that while the examples provided in § 1692d are 

nonexhaustive, they concern tactics intended to, "embarrass, upset, or frighten a debtor," and 

that these tactics, "are not comparable to the single filing of a debt-collection lawsuit." Id. at 

330. Key to the Harvey court's analysis was its interpretation ofthe plaintiffs complaint as 

alleging only that the debt collector and firm brought the original state court action without the 

immediate means to prove the debts owed, not that they were incapable of proving the existence 

of the debt. Id. at 328. 

The allegations in Harvey are nearly identical to those in this case. In both cases, the 

complaint alleged that the defendant debt collector filed an action in state court without the 

proper documentation to support the claim, the natural consequence ofwhich was to harass, 

oppress, or abuse the plaintiff. Neither plaintiff argued that the suits were baseless or that the 

9 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 9 of 16
defendants could not prove the existence of the debt. Neither alleged any activities by the 

defendants that were ofthe nature of the examples provided in § 1692d. We agree with the 

reasoning of the Sixth Circuit that in order to violate 15 U.S.C. § 1692d there must be an act that 

would "embarrass, upset, or frighten a debtor." 

We find that Plaintiffs allegations that Defendant Galloway: (1) failed to obtain and/or 

review the documentation substantiating the debt collection claim against Plaintiff prior to filing 

suit and (2) proceeded with the suit without documentation detailing the purchases, payments, 

interest, and late charges, making it impossible for Plaintiff to determine whether or not he owed 

the alleged debt and if it was correctly calculated, do not state a claim upon which relief can be 

granted pursuant to 15 U.S.C. § 1692d. Even viewed from the perspective of the "least 

sophisticated consumer," the natural consequence ofsaid conduct is not to harass, oppress, or 

abuse any person in connection with the collection of a debt. Defendant's Motion to Dismiss 

Plaintitrs Complaint, to the extent it alleges a claim against Defendant Galloway pursuant to 15 

U.S.C. § 1692d claim, is granted. 

2. Plaintiff's Claim against Dejtmdant Galloway for False Representations and 

Deceptive Means under 15 USc. § 1692e 

Plaintiff also contends that Defendant Galloway'S conduct violates 15 U.S.C. § 1692e, 

which prohibits the use of false, deceptive, or misleading representations or means in connection 

with the collection of a debt, and includes a list of conduct that constitutes a violation of § 

1692e. More specifically, Plaintiff contends that Defendant Galloway's alleged conduct 

violates: (1) § 1 692e(2), which states that "[t]he false representation of... the character, amount, 

or legal status of a debt" is a violation of § 1692e; and (2) § 1692e( 1 0), which states that "[t]he 

10 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 10 of 16
use of any false representation or deceptive means to collect or attempt to collect any debt or to 

obtain information concerning a consumer" is a violation of § 1692e. Id. 

With respect to alleging a § 1692e( 1 0) violation, in Harvey, the court recognized means 

that have been considered deceptive in violation of § 1692e( 10) including: impersonation of a 

public official, falsely representing that unpaid debts will be referred to an attorney, and 

misrepresentations ofthe amount of debt owed. Harvey, 453 F.3d at 331. In Harvey, the court 

concluded that the defendant filing a state court suit without enough documentation was not of 

the nature of actions deemed deceptive and therefore, the plaintiff did not state a claim upon 

which relief could be granted under § 1692e( I 0). Id. Furthermore, the Harvey court determined 

that the plainti ff had not alleged a claim under § 1692e generally because the plainti ff "did not 

allege that [defendants] attached a false document to the ... complaint, nor even that [their] claims 

regarding the debt were false." Id. (quotations omitted). See also Williams v. lavitch, Block, & 

Rathbone, 480 F. Supp. 2d 1016, 1022-23 (S.D. Ohio 2007) (finding that the plaintiff had stated 

a claim under § I 692e( I 0) when he alleged the defendant law firm knew or should have known a 

state court collection suit was based on a false affidavit); Deere v. lavitch, Block & Rathbone, 

LLC., 413 F. Supp. 2d 886, 891 (S.D. Ohio 2006) (court held no violation of §§ 1692e, 

1692e( I 0) or1692fwhere defendant filed a debt collection lawsuit supported only by the client's 

affidavit attesting to the existence and amount of a debt and plaintiff did not allege that anything 

in the state court complaint was false, or that the complaint was baseless); Delawader v. 

Platinum Financial Services Corp., 443 F. Supp. 2d 942, 947-48 (S.D. Ohio 2005) (holding that 

allegations that a debt collector filed a complaint to collect a debt and attached an affidavit to the 

11 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 11 of 16
complaint that allegedly misrepresented the amount ofthe debt or the debt collector's legal claim 

upon the debt stated a claim for violation of § 1692e(2». 

We find that the factual allegations set forth in Plaintiff's Complaint do not state a claim 

upon which relief can be granted under either § 1692e in general or § 1692e(2) or § 1692e( 1 0) in 

particular. Initially, the only means Defendant Galloway is alleged to have used to collect the 

debt is the filing of a state court suit, an act which we find is not deceptive in nature. 

Furthermore, as in Harvey, Plaintiff does not allege that the document attached to the state court 

filing was false; he does not even deny owing the debt. He merely alleges that Defendant 

Galloway did not attach the proper documentation required to substantiate the amount owed. As 

stated in Deere, supra., "[plaintiff] essentially alleges that more of a paper trail should have been 

in the lawyer's hands or attached to the complaint. The FDCPA imposes no such obligation." 

Deere, 413 F.Supp.2d at 891. Defendant's Motion to Dismiss Plaintiffs claim against 

Defendant Galloway pursuant to 15 U.S.C. §§ l692e, 1692e(2) and 1692e(10) must be granted. 

3. Plaint~rrs Claim against Defendant Galloway for Unfair or Unconscionable Means 

under 15 USc. § 1692f 

Plaintiffs final claim against Defendant Galloway is that his conduct violated 15 U.S.C. 

§ 1 692fwhich prohibits the use of unfair or unconscionable means to collect or attempt to 

collect any debt. Plaintiff relies specifically on § 1692f(1) which states that it is a violation of 

§ 1692f to collect any amount (including any interest, fee, charge, or expense incidental to the 

principal obligation) unless such amount is expressly authorized by the agreement creating the 

debt or permitted by law. 15 U.S.C. § 1692f(I). See F.T.C. v. Check Investors, Inc., 502 F.3d 

159, 166 (3d Cir. 2007) ("The prohibition on unfair or unconscionable practices precludes a debt 

12 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 12 of 16
collector from adding any charge to the underlying debt unless that charge is authorized by law 

or the agreement creating the debt."}; Pollice v. National Tax Funding, L.P., 225 F. 3d 379, 408 

(3d Cir. 2000) (finding that defendants violated § 1 692f( I) by charging plaintiffs an interest rate 

in excess ofthe 10% authorized by Pennsylvania law and which was not clear in the agreement 

creating the debt); Gigli v. Palisades Collection, LLC., 2008 WL 3853295 *8 (M.D. Pa 2008) 

(holding that plaintiff had stated a claim that defendants attempted to collect an amount not 

authorized by an agreement in violation of § 1692f(1) when there was a genuine issue of 

material fact as to the interest rate agreed upon in her credit card agreement). 

We find that the allegations set forth in Plaintiffs Complaint do not state a claim upon 

which relief can be granted under § 1692fbecause the allegations that Defendant Galloway filed 

the lawsuit against Plaintiff without obtaining and/or reviewing the documentation substantiating 

the debt buyer's right to judgment prior to filing the Complaint and that he continued the state 

court action against Plaintiff without providing detailed documentation substantiating the debt 

does not constitute the use of unfair or unconscionable means to collect or attempt to collect any 

debt. Further, Plaintiff does not allege, as required to state a claim under § 1692f( 1), that the 

amount ofmoney Defendant Galloway sought to collect from him was contrary to either the 

agreement that created the debt or the law. Defendant's Motion to Dismiss Plaintiff's claim 

against Defendant Galloway pursuant to 15 U.S.C. § 1692fis granted. 

D. Plaintiff's FDCPA claim against Fulton, Friedman, and Gullace, LLP. 

Plaintiff contends that the conduct ofDefendant Fulton, Friedman, and Gullace, LLP. 

with respect to him violated 15 U.S.c. §§ 1692d, 1692e, and 1692f. The sole allegations in the 

Complaint concerning the Defendant law firm are that: (1) H[n ]otwithstanding his lack of 

13 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 13 of 16
documentation substantiating any debt, on or about March 19, 2010, Defendant Galloway, 

having left his former employer Mann Bracken (insolvency) and now employed by Fulton, 

Friedman and Gullace, LLP, continued with the case by entering his appearance on behalf of 

Midland Funding, LLC;" and (2) "[o]nly within the last few days, Galloway withdrew the civil 

complaint filed against Plaintiff, but did so without prejudice, giving Midland Funding, LLC the 

option to file another civil complaint against Plaintiff for the disputed debt." Complaint, ~~ 22 

and 24. 

We find that even the "least sophisticated consumer" would not understand Fulton, 

Friedman, and Gullace's alleged conduct in the state court litigation, the filing of an appearance 

in a debt collection action in order to discontinue the case: (l) to be the engagement of "conduct 

the natural consequence of which is to harass, oppress, or abuse any person in connection with 

the collection of a debt" in violation of § 1692d; (2) to constitute the use of "any false, 

deceptive, or misleading representation or means in connection with the collection of any debt" 

in violation of § 1692e; or (3) to constitute the use of "unfair or unconscionable means to collect 

or attempt to collect any debt" in violation of § 1692f. Defendant's Motion to Dismiss 

Plaintiffs claim against Defendant Fulton, Friedman, and Gullace must be granted. 

IV. Dismissal With or Without Prejudice 

Once a court has decided to grant a motion to dismiss for failure to state a claim upon 

which relief can be granted pursuant to Fed.R.Civ.P 12(b)(6), the court must next decide whether 

leave to amend the complaint must be granted. As explained in Phillips v. County of Allegheny, 

515 F .3d 224 (3d Cir. 2008): "[ w]e have instructed that if a claim is vulnerable to 12(b )(6) 

14 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 14 of 16
dismissal, a district court must permit a curative amendment, unless an amendment would be 

inequitable or futile." Id. at 236. 

Here, Defendants do not argue and it does not otherwise appear that allowing Plaintiff to 

amend his Complaint would be inequitable or futile. Accordingly, the Defendants' Motion to 

Dismiss Plaintiffs Complaint is granted without prejudice to Plaintiff to file an Amended 

Complaint no later than August 10, 201 0 that states a claim against the Defendants pursuant to 

the FDCP A upon which relief can be granted. 

V. Defendants' request for sanctions against Plaintiff pursuant to 15 U.S.c. § 1692k(a)(3) 

and 28 U.S.C. § 1927 

Defendants also argue that Plaintiff brought this action for the purpose ofharassment and 

should be sanctioned pursuant to 15 U.S.C. § 1692k(a)(3) and 28 U.S.C. §1927. Defendant's 

Brief in Support of Motion to Dismiss, p. 5. Defendants contend that Plaintiff has attempted to 

mislead the court as to the individual who signed the pleadings in the underlying state court case 

and that this lawsuit was brought without factual basis when Plaintiff learned that recovery from 

the appropriate party, Mann Bracken, was unlikely because the party was in receivership. Id. 

In § 1692k(a)(3), the FDCPA provides a mechanism for sanctions against a plaintiff: 

"[ o]n finding by the court that an action under this section was brought in bad faith and for the 

purpose of harassment, the court may award to the defendant attorney's fees reasonable in 

relation to the work expended and costs." 15 U .S.C. § I 692k(a)(3). A similar provision 

outlining counsel's liability for excessive costs is outlined in 28 U.S.C. § 1927 which states that, 

"[a]ny attorney ... who so manipulates the proceedings in any case unreasonably and vexatiously 

15 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 15 of 16
may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees 

reasonably incurred because of such conduct." 28 U.S.C. § 1927. 

Defendants have not convinced this Court that Plaintiff brought this lawsuit in bad faith 

or for the purpose of harassment in violation of § 1692k(a)(3). See Parker v. Pressler & Pressler, 

LLP., 650 F. Supp. 2d 326,347 (D. N.J. 2009) (court denied prevailing defendants' request for 

attorney fees in an FDCPA case stating: "[i]n light of the remedial purpose of the FDCPA, the 

Court construes this provision narrowly; as a practical matter it appears designed to thwart 

efforts of a consumer to abuse the statute and avoid responsibility to pay a legitimate debt."). 

Similarly, Defendants have not convinced us that the proceedings were manipulated 

unreasonably or vexatiously in violation of28 U.S.c. § 1927. Accordingly, we decline to award 

attorney's fees pursuant to 15 U.S.c. § 1692k{a)(3) or 28 U.S.C. § 1927. Defendants' request for 

sanctions against Plaintiff is denied. 

VI. Conclusion. 

For the reasons set forth above, Defendants' Motion to Dismiss is granted, but without 

prejudice for Plaintiff to file an Amended Complaint no later than August 10,2010 that states an 

FDCP A claim against the defendants upon which relief can be granted. An appropriate Order 

follows. 

July 27,2010 JK&UI.I~ l~tdLt ~ Maurice B. Cohill, Jr. 

Senior District Court Judge 

16 


Case 1:10-cv-00077-SJM Document 17 Filed 07/27/10 Page 16 of 16