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Laccinole v. Assad

United States District Court, D. Rhode Island

March 7, 2016

CHRISTOPHER LACCINOLE, Plaintiff,
v.
JUDY B. ASSAD, JAMES D. SYLVESTER, and THE VILLAGE LOWER SCHOOL, INC., Defendants.

MEMORANDUM AND ORDER

WILLIAM E. SMITH CHIEF JUDGE

Plaintiff, Christopher Laccinole (“Laccinole”), has brought three suits relating to attempts to collect the same debt - moneys he allegedly owes to The Village Lower School, Inc. (“The Village Lower School”). In the first suit, C.A. No. 14-404 S, Laccinole names Judy B. Assad (“Assad”), James D. Sylvester (“Sylvester”), and The Village Lower School as defendants. In the other two matters, C.A. No. 14-447 S and C.A. No. 14-508 S, Laccinole names Assad as the sole defendant. The Court consolidated these actions for more efficient case management. (ECF Nos. 37 (14-404), 18 (14-447), and 13 (14-508).)

This Memorandum and Order considers two motions currently pending before the Court in 14-404: Assad’s Motion for Judgment on the Pleadings (ECF No. 9) (“Assad’s Mot.”) and Sylvester’s Motion to Dismiss Pursuant to Rule 12(b)(6) (ECF No. 12) (“Sylvester’s Mot.”). For the reasons set forth below, both motions are granted.

I. Background

The alleged facts in this debt collection drama are relatively straight forward. Laccinole, a resident of Narragansett in Washington County, Rhode Island, has two alleged antagonists. The first, Assad, is a licensed Rhode Island attorney - not a registered debt collector - who sought to collect a debt Laccinole owed to Assad’s client, The Village Lower School. (Am. Compl. ¶¶ 20, 71, 73, 86, ECF No. 2; Ex. B to Am. Compl., ECF No. 2-2.) The second is Sylvester, a Rhode Island constable and process server, who, like Assad, is not a registered debt collector. (Am. Compl. ¶¶ 29, 72, ECF No. 2.)

The present action focuses on Assad’s attempted to commence a civil suit (the “state collection action”) against Laccinole related to a debt to The Village Lower School. (Am. Compl. ¶ 71, ECF No. 2; see Exs. A & B to Am. Compl., ECF Nos. 2-1 & 2-2.) On August 27, 2014, Sylvester served Laccinole a summons and a complaint alleging that he owed $8, 075.00 to the school. (Am. Compl. ¶¶ 72, 78, ECF No. 2; Exs. A & B to Am. Compl., ECF Nos. 2-1 & 2-2.) The complaint also referenced a copy of an “account” outlining the debt, which it purported to attach as Exhibit A to the complaint. (Id. at ¶ 82.) The exhibit, however, was not attached. (Am. Compl. ¶¶ 82-83, ECF No. 2.) During service, Sylvester circled Assad’s name on the complaint, drew an arrow to Assad’s phone number, and told Laccinole to “just call her and you can set up payments so you don’t have to go to court.” (Id. ¶¶ 77-78, ECF No. 2.)

At the time of service, Assad had not yet filed the state collection action. (Am. Compl. ¶ 91, ECF No. 2.) The operable Rhode Island District Court Rule at the time gave a plaintiff ten days to file a complaint after serving it on a defendant. See R.I. R. Dist. Ct. Civ. Rule 3 (2014). Assad’s ten day window technically expired on Saturday, September 6, 2014, but she did not file the complaint until the following Monday, September 8, 2014. (Ex. A to Assad’s Mot., ECF No. 9-2.)[1] Laccinole moved to dismiss the complaint alleging that Assad improperly served Laccinole and that Assad filed the complaint two days after the service period prescribed by the Rhode Island Civil Rules. (Ex. D to Assad’s Mot., ECF No. 9-5.) Assad opposed the motion and filed an affidavit from Sylvester recounting how he served Laccinole. (Ex. D to Am. Compl., ECF No. 2-4.) In the affidavit, Sylvester averred, among other things, that he circled Assad’s name and phone number on the complaint and told Laccinole that he could contact Assad. (Id.) The Rhode Island trial court denied Laccinole’s motion. (Ex. E to Assad’s Mot., ECF No. 9-6.)

On September 11, 2014, Laccinole commenced the present action. On September 29, 2014, Laccinole amended his complaint (ECF No. 2) (“Amended Complaint”) alleging thirteen counts against Assad, Sylvester, and The Village Lower School based on Assad and Sylvester’s respective roles in filing the state collection action. The thirteen counts include four Federal Fair Debt Collection Practices Act (“FDCPA”) (15 U.S.C. § 1692, et seq.) claims against Assad and Sylvester (Counts I, II, III, and IV), four Rhode Island Fair Debt Collection Practices Act (“RI FDCPA”) (R.I. Gen. Laws § 19-14.9-1, et seq.) claims against Sylvester (Counts V, VI, VII, and VIII), and five claims against all three defendants: a Rhode Island Deceptive Trade Practice Act claim (“RI DTPA”) (R.I. Gen. Laws § 6-13.1-1, et seq.) (Count IX), a fraud claim (Count X), a civil conspiracy claim (Count XI), a “Right to Privacy” claim (Count XII), and a “Civil Liability for Crimes and Offenses” claim (Count XIII). Assad has moved for judgment on the pleadings as to all of the claims against her pursuant to Fed. R. Civ. Pro. 12(c) (ECF No. 9), and Sylvester has moved to dismiss all of the claims against him pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 12).

II. Legal Standard

The standard of review is the same for both a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) and a motion to dismiss under Rule 12(b)(6). Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014). Under both rules, the court must view the facts contained in the pleadings in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). To survive either motion, however, plaintiff must present “factual allegations that ‘raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)). Put another way, “[w]hile detailed factual allegations are not required, ‘a formulaic recitation of the elements of a cause of action’ is not sufficient. DeLucca v. Nat’l Educ. Ass’n of Rhode Island, 102 F.Supp. 3d 408, 411 (D.R.I. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

In reviewing motions brought under rules 12(c) and 12(b)(6), courts ordinarily are limited to reviewing the complaint and documents attached to it. Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007). There are, however, “exception[s] for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs’ claim; or for documents sufficiently referred to in the complaint.” DeLucca, 102 F.Supp. 3d at 411-12 (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)); Curran, 509 F.3d at 44 (applying rule to motions brought under Rule 12(c)). Generally, courts may consider documents from prior state court proceedings in deciding motions to dismiss as “public records.” Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008) (“Matters of public record ordinarily include “documents from prior state court adjudications.”); Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000) (“And a court ordinarily may treat documents from prior state court adjudications as public records.”).

III. Discussion

Before considering Laccinole’s individual causes of action, the Court pauses to consider two allegations - what Laccinole characterizes as “unlawful” and “criminal” conduct - forming the core of many of Laccinole’s claims: (1) that Assad and Sylvester engaged in the unauthorized practice of law (“UPL”) when Sylvester served Laccinole; and (2) that Assad and Sylvester should have registered as debt collectors under Rhode Island law. Both of these allegations are baseless and disposing of them now will streamline the analysis of the remainder of Laccinole’s claims.

Laccinole bases his UPL claim on Sylvester’s comment that Laccinole could avoid court by calling Assad to set up a payment plan. (Am. Compl. ¶¶ 78-79, 100-104, ECF No. 2.) According to Laccinole, Sylvester’s comments constituted legal advice and a settlement negotiation under R.I. Gen. Laws 11-27-2(2) & (3). Aside from quoting the statutory language, however, Laccinole cites to no authority to support his contention that Sylvester’s conduct meets either definition and this Court has found none. While “[w]e must remember that the practice of law at a given time cannot be easily defined, ” Unauthorized Practice of Law Comm. v. State, Dep’t of Workers’ Comp., 543 A.2d 662, 665 (R.I. 1988), Laccinole’s allegations simply do not suggest Sylvester practiced law. Accordingly, his UPL allegations do nothing to support his other claims.

Laccinole also alleges that Assad and Sylvester acted unlawfully by not registering as debt collectors. The RI FDCPA requires registration as a debt collector when a person is engaged in the “business of a debt collector, ” “engage[d] in soliciting the right to collect or receive payment for another . . .”, or advertises for or solicits in print for the right to collect or receive payment from another. R.I. Gen. Laws § 19-14.9-12(1). The statute, however, expressly excludes attorneys and process servers from its definition of “debt collector.” R.I. Gen. Laws § 19-14.9-3(5)(d) (exempting “[a] person while serving or attempting to serve legal process on another person in connection with the judicial enforcement of a debt.”); R.I. Gen. Laws § 19-14.9-2(5)(g) (exempting “[a]ttorneys-at-law collecting a debt on behalf of a client.”). Here, Laccinole’s Amended Complaint concedes that Assad is an attorney and Sylvester a process server. (Am. Compl. ¶¶ 20, 29-30, ECF No. 2.) Thus, even taken ...


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