1By operation of L.R. 7.1(b) and Fed. R. Civ. P. 6(a), the

deadline for responding to the motion was April 27, 2006.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Phillip Ricciardi

v. Civil No. 06-cv-092-JD

Service Credit Union et al.

O R D E R

Phillip Ricciardi, proceeding pro se, has sued Service

Credit Union, as well as Chubrich & Harrigan, P.A., and several

unnamed parties who allegedly acted as its agents, under the Fair

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

Service Credit Union (“Service Credit”) has moved to dismiss

Ricciardi’s claims against it on the ground that it is not a

“debt collector” within the meaning of the FDCPA and that the

complaint therefore fails to state a claim for relief against

Service Credit. Service Credit also seeks to collect its

attorneys’ fees and costs from Ricciardi on the ground that he

brought this action “in bad faith and for the purpose of

harassment.” 15 U.S.C. § 1692k(a)(3). Neither Ricciardi nor

Chubrich & Harrigan has filed any response to the motion.1

In ruling on a motion to dismiss for failure to state a

claim, the court accepts all of the plaintiff’s well-pleaded

factual allegations as true and draws all reasonable inferences

Case 1:06-cv-00092-JD Document 11 Filed 05/11/06 Page 1 of 8
2

from them in the plaintiff’s favor. E.g., Stanton v. Metro

Corp., 438 F.3d 119, 123 (1st Cir. 2006). Such a motion cannot

be granted “unless it is apparent beyond doubt that the plaintiff

can prove no set of facts in support of his claim that would

entitle him to relief.” Id. at 123-24. Furthermore, the court

must construe Ricciardi’s pro se amended complaint liberally. 

Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004);

Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991) (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Ricciardi alleges that he “signed documents which lead [sic]

him to believe that Defendant Bank was going to lend [him] an

unsubstantiated amount to be used for consumer goods . . . .” 

Compl. ¶ 9. According to the complaint, Chubrich & Harrigan, a

law firm (the “law firm”), later began efforts on Service

Credit’s behalf to collect a $10,466.95 debt purportedly arising

out of this “transaction.” Id. ¶ 10. Ricciardi asserts that

these efforts, which included correspondence and a lawsuit

against him in state court, violated various provisions of the

FDCPA, and that Service Credit is “directly responsible for the

illegal actions of the debt collector under the Doctrines of

Respondeat Superior and Apparent Authority, maintenance and

champerty.” Id. ¶ 11.

“The Fair Debt Collection Practices Act regulates debt

collectors, not creditors.” Shula v. Lawent, 359 F.3d 489, 492

Case 1:06-cv-00092-JD Document 11 Filed 05/11/06 Page 2 of 8
3

(7th Cir. 2004); see also, e.g., Alibrandi v. Fin. Outsourcing

Servs., Inc., 333 F.3d 82, 85 (2d Cir. 2003); Pollice v. Nat’l

Tax Funding, 225 F.3d 379, 403 (3d Cir. 2000). The FDCPA does

reach, however, “any creditor who, in the process of collecting

his own debts, uses any name other than his own which would

indicate that a third person is collecting or attempting to

collect such debts.” 15 U.S.C. § 1692a(6). Courts have applied

this exception to creditors whose collection efforts include

correspondence from a lawyer lacking any “meaningful involvement”

in the efforts themselves. See, e.g., Nielsen v. Dickerson, 307

F.3d 623, 634-39 (7th Cir. 2002); Taylor v. Perrin, Landry,

deLaunay & Durand, 103 F.3d 1232, 1236-37 (5th Cir. 1997).

At places in his complaint, Ricciardi hints at such a

theory, alleging that Service Credit “made the decision that [he]

should be sued by Defendant Law Firm . . . . Defendant Law Firm

based his [sic] information upon the order of Defendant Bank upon

reviewing only cursory lawyer information containing consumers

[sic] name, address, and the amount of alleged debt.” Compl. 

¶ 99. Although “merely being told by a client that a debt is

overdue is not enough” to constitute meaningful attorney

involvement, Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,

304 (2d Cir. 2003), the balance of Ricciardi’s allegations

demonstrate that the law firm’s contributions to the collection

efforts against him far surpassed this standard, and bely his

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4

charge that the firm had only “cursory lawyer information.” 

Ricciardi affirmatively states, for example, that the law firm

sent him copies of his credit card application, agreement, and

related documentation when he requested them, Compl. ¶ 16,

indicating that its collection efforts were in fact guided by

more than simply his name, address, and the amount of the debt

and, furthermore, that the law firm was dealing directly with

Ricciardi in trying to collect the debt. The complaint therefore

fails to state a claim that the law firm so lacked any meaningful

involvement in the collection efforts as to subject Service

Credit to the FDCPA for falsely using the law firm’s name to

pursue those efforts on its own. Cf. Nielsen, 307 F.3d at 635-39

(concluding that creditor liable under FDCPA for letters sent in

name of attorney who possessed no information as to individual

debtors, “played barely more than a ministerial role” in handling

debtors’ responses to letters, and never took legal action).

Indeed, the thrust of Ricciardi’s complaint is not that the

law firm was insufficiently involved in the collection efforts

against him, but that the firm took its marching orders from

Service Credit, making it vicariously liable for the firm’s

alleged violations of the FDCPA. Because the FDCPA applies only

to “debt collectors,” however, courts have consistently rejected

attempts to impose FDCPA liability on a creditor for the actions

of those who collect its debts based on respondeat superior or

Case 1:06-cv-00092-JD Document 11 Filed 05/11/06 Page 4 of 8
5

similar theories. See, e.g., Wadlington v. Credit Acceptance

Corp., 76 F.3d 103, 108 (6th Cir. 1996); Doherty v. Citibank

(S.D.) N.A., 375 F. Supp. 2d 158, 162 (E.D.N.Y. 2005); Conner v.

Howe, 344 F. Supp. 2d 1164, 1170 (S.D. Ind. 2004); Caron v.

Charles E. Maxwell, P.C., 48 F. Supp. 2d 932, 936 (D. Ariz.

1999); Hart v. GMAC Mtg. Corp. (In re Hart), 246 B.R. 709, 731

(Bkrtcy. D. Mass. 2000). The complaint therefore fails to state

a claim against Service Credit under the FDCPA.

Although, as Service Credit points out, Ricciardi has

characterized his lawsuit as “an action . . . for Defendant’s

[sic] violation of 15 U.S.C. § 1692, A.K.A. the Fair Debt

Collection Practices Act,” Compl. ¶ 1, the complaint also alleges

that Service Credit and the law firm “entered into a criminal

conspiracy” to defraud him in violation of a number of other

laws. Id. ¶ 42. Specifically, Ricciardi charges that the

defendants broke federal laws regulating the mails, including 18

U.S.C. § 1341 and 39 U.S.C. §§ 3001 and 3005, Compl. ¶¶ 38, 40,

as well as “tort laws, unfair trade practices statutes” and the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §

1962 (“RICO”). Compl. ¶ 42. In accordance with its obligation

to construe Ricciardi’s pro se complaint liberally, the court

will consider these claims so far as the complaint permits.

The federal mail fraud statute, 18 U.S.C. § 1341, is a

Case 1:06-cv-00092-JD Document 11 Filed 05/11/06 Page 5 of 8
2The same is true of the complaint’s citations to the Equal

Protection Clause and the “FCEUA” and “UTPCPL,” anagrams for

Pennsylvania statutes that have no apparent application here. 

6

criminal law that does not authorize private citizens to bring

civil actions against alleged offenders. See, e.g., Wisdom v.

First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 408-09 (8th

Cir. 1999); Ryan v. Ohio Edison Co., 611 F.2d 1170, 1178-79 (6th

Cir. 1979); Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir.

1977); Gibbs v. SLM Corp., 336 F. Supp. 2d 1, 17 (D. Mass. 2004). 

Similarly, 39 U.S.C. §§ 3001 and 3005 empower the Postal 

Service to dispose of various categories of “nonmailable matter”

and to take steps to prevent its mailing. Even if these statutes

could be construed to provide a private right of action, which

strikes the court as a dubious proposition, the complaint does

not suggest how the correspondence between the law firm and

Ricciardi might qualify as “nonmailable matter.”

Any RICO claim also fails because Ricciardi has alleged only

that the conspiracy between Service Credit and the law firm is “a

predicate offense for a civil RICO claim,” Compl. ¶ 42, and not

the existence of any “enterprise.” See Compagnie De Reassurance

D’Ile de France v. New England Reassurance Corp., 57 F.3d 56, 91-

92 (1st Cir. 1995). Finally, the complaint’s allusions to “tort

laws” and “unfair trade practices statutes” are simply too vague

to state a claim for relief.2 Although a pro se litigant is

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7

generally entitled to the benefit of every doubt, this approach

“does not require judges . . . to take up the slack when a party

elects to represent himself.” Eagle Eye Fishing Corp. v. Dep’t

of Commerce, 20 F.3d 503, 506 (1st Cir. 1994). The complaint

fails to state a claim against Service Credit.

In addition to dismissal, Service Credit seeks to recover

the attorneys’ fees and costs expended in defending itself in

this action from Ricciardi. “On a finding by the court that an

action under [the FDCPA] was brought in bad faith and for the

purpose of harassment, the court may award to the defendant

attorneys’ fees reasonable in relation to the work expended and

costs.” 15 U.S.C. § 1692k(a)(3). Although circuit courts have

not expounded upon this standard to any real degree, the Seventh

Circuit has ruled that it is not satisfied where “a reasonable

lawyer could have argued from [the] facts” that the defendant

violated the FDCPA, Horkey v. J.V.D.B. & Assocs., 333 F.3d 769,

775 (7th Cir. 2003), while the Fourth Circuit has ruled that an

action “utterly without factual foundation” did meet the test,

Chaudhry v. Gallerizzo, 174 F.3d 394, 411 (4th Cir. 1999).

Service Credit’s motion does not explain how this action

satisfies the standard set out in section 1692k(a)(3), except to

say that “the complaint establishes no basis for liability and

instead relies upon a statute which expressly excludes the

Case 1:06-cv-00092-JD Document 11 Filed 05/11/06 Page 7 of 8
8

defendant from liability . . . .” Mot. Dismiss ¶ 23. But, as

the cases just cited indicate, “[f]or the court to appropriately

award fees under [section 1692k(a)(3)] it is not enough that the

plaintiff’s case is ultimately dismissed.” Russell v. Equifax

A.R.S., 1994 WL 672648, at *5 (N.D.N.Y. Nov. 23, 1994) (internal

quotation marks omitted), rev’d on other grounds, 74 F.3d 30 (2d

Cir. 1996). Because Service Credit has not shown that this

action “was brought in bad faith and for the purpose of

harassment,” its request for fees and costs is denied. Lemieux

v. Jensen, 2004 WL 302318, at *3 (S.D. Cal. Jan. 29, 2004). 

 

Conclusion

For the foregoing reasons, Service Credit’s amended motion

to dismiss (document no. 9) is GRANTED, except insofar as it

makes a request for attorneys’ fees and costs, which is DENIED. 

Service Credit Union’s status as a defendant is TERMINATED.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 11, 2006

cc: Peter V. Doyle, Esquire

Patrick F. Harrigan, Esquire

Philip Ricciardi, pro se

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