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finding ambiguity in the term "agents," but only because two conflicting stipulations were signed within days of each other, one of which specifically excluded the defendant attorneys
Summary of this case from Weisman Celler Spett & Modlin, P.C. v. Trans-Lux Corp.Opinion
99 Civ. 3227 (JGK).
September 22, 2000.
OPINION AND ORDER
The plaintiffs, Anita Phocas Sibersky and Alex Sibersky, brought this action pro se against defendants Borah, Goldstein, Altschuler Schwartz, P.C. and Stephen C. Shulman (collectively "Borah"), the law firm and lawyer for the plaintiffs' former landlord, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("the FDCPA") and fraud. The defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Also before the Court are the plaintiffs' motion to amend the complaint to add new defendants and the plaintiffs' motion for sanctions.
I.
On a motion to dismiss, the allegations in the complaint are accepted as true. Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hasset, 886 F.2d 8, 11 (2d Cir. 1989). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, the defendant's motion should only be granted if it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994); see also Goldman, 754 F.2d at 1065.
Where a pro se litigant is involved, the same standards for dismissal apply. However, a "court should give the pro se litigant special latitude in responding to a motion to dismiss."Adams v. Galletta, 966 F. Supp. 210, 211 (S.D.N.Y. 1997); Andujar v. McClellan, 95 Civ. 3059, 1996 WL 601522, at *1 (S.D.N.Y. Oct. 21, 1996) (citation omitted). The Court may consider allegations that are contained in a pro se plaintiff's opposition papers. See Bal v. New York City Loft Board, No. 00 Civ. 1112, 2000 WL 890199, at *2 (S.D.N.Y. July 5, 2000); Amaker v. Goord, No. 98 Civ. 3634, 2000 WL 718438, at *1 (S.D.N.Y. June 5, 2000)
In deciding the motion, the Court may also consider documents referenced in the complaint and documents that are in the plaintiff's possession or that the plaintiff knew of and relied on in bringing suit. See Brass v. American Film Technologies. Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus Assoc., P.C. v. Oppenheimer Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991); Skeete v. IVF America. Inc., 972 F. Supp. 206, 208 (S.D.N.Y. 1997). Thus, the Court may consider the various documents incorporated by reference and attached as exhibits to the plaintiffs' Amended Complaint.
While the defendants attach various exhibits to their motion to dismiss, all of the documents attached and referred to by the defendants were incorporated by reference and attached to the plaintiffs' Amended Complaint and are therefore part of the pleadings. The plaintiffs also submit further materials with their motion in opposition, including an affidavit from their former attorney which relate to the FDCPA claims. The court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to a summary judgment motion under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material. see Fed.R.Civ.P. 12 (b); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000);Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988). Because the plaintiffs have pleaded sufficient facts to survive a motion to dismiss the FDCPA claims except for certain claims by Mr. Sibersky which are insufficient as a matter of law, it is not necessary to consider the affidavit and other papers submitted by the plaintiffs in connection with these claims.
II.
Plaintiffs Anita Phocas Sibersky and Alex Sibersky rented an apartment at 301 West 22nd Street in Manhattan from Felds Realty, LLC ("Felds"), for $619.67 per month. See Renewal Lease Form, dated Sept. 21, 1997, attached to Am. Compl. The lease was in Mrs. Sibersky's name only under her maiden name, Anita Phocas. Id.According to the plaintiffs, in September 1998, the defendants sent the Siberskys several three-day notices demanding rent payments on behalf of Felds. See Am. Compl. ¶¶ 10(a), 12, 13 (b). The notices, which were addressed only to Anita Phocas, read as follows:
PLEASE TAKE NOTICE, that you are justly indebted to the undersigned landlord in the total sum of $1908.01 for rent and additional rent, if any, as set forth below, which you are required to pay on or before 9/25/98 that being not less than three days from the service of this notice upon you or you must surrender possession of the above referenced premises to the landlord. If you fail to make complete payment of the rent or surrender possession of the premises within said time period, the landlord will commence summary proceedings to recover possession of the above referenced premises.See Notice, dated Sept. 15, 1998, attached to Am. Compl.; see also Notice dated Sept. 28, 1998 attached to Am. Compl.
While the notices indicated that payment was due to Felds Realty, the notices were unsigned. Id. The plaintiffs allege that the notices were not issued by Felds but by the defendants from the defendants' offices, printed on paper belonging to the defendants, and marked with client identification numbers used internally by the defendants. See Am. Compl. ¶ 12. The notices allegedly violated the FDCPA because they: a) contained threats to take actions that could not be legally taken in violation of 15 U.S.C. § 1692e(5); b) failed to adequately disclose that the defendants were attempting to collect a debt and that any information obtained would be used for that purpose in violation of 15 U.S.C. § 1692e(11); and c) omitted notice of the required thirty day validation period in violation of 15 U.S.C. § 1692g. See Am. Compl. ¶¶ 14-15, 19-20. The plaintiffs also claim that Mr. Shulman made oral threats to take actions that could not be legally taken. Id. ¶ 10(b). The defendants allegedly acted "willfully, knowingly or persistently in communicating . . . demands . . . for the debt collection payments of allegedly due rents by the plaintiffs as tenants."Id. ¶ 22(e). The plaintiffs claim actual and statutory damages.Id. ¶ 23.
The Siberskys also claim that the defendants made fraudulent representations in several petitions filed in state court in connection with the plaintiffs' tenancy. See Am. Compl. ¶¶ 12(b)-12(e), 13(f). Specifically, the plaintiffs allege that the defendants listed Abraham Feldstein as the manager of their apartment building on two Non-Payment of Rent Petitions, dated Sept. 28, 1998 and Oct. 8, 1998, when, in fact, Mr. Feldstein was deceased as of Sept. 5, 1998. Id. ¶¶ 12(b)-12(e). The plaintiffs also claim that the defendants made fraudulent statements relating to odors allegedly caused by the Siberskys' dog. Id. ¶ 13(f). According to these statements, which were included in a Notice to Cure and Holdover Petition, the landlord discovered "an acrid and unreasonably unsettling stench emanating from your apartment . . . [and] [t]he landlord believes this condition is a result of the way you maintain your apartment, or the manner in which you maintain your dog." See "Notice to Cure," dated March 18, 1999; see also "Holdover Petition," dated May 18, 1999, attached as exhibits to Am. Compl. According to the plaintiffs, their dog died on March 18, 1999 and was cremated a day later, and therefore could not have been responsible for the alleged odor. See Am. Compl. ¶ 13(g).
While only Mrs. Sibersky was named in the Non-Payment of Rent petitions, both Mr. and Mrs. Sibersky were named in, and served with, the Notice to Cure and Holdover Petition. See Non-Payment of Rent Petitions, Notice to cure, and Holdover Petition, attached to Am. compl.
On May 18, 1999, the defendants, on behalf of the plaintiffs' landlord, commenced a holdover proceeding against Mrs. Sibersky, as tenant, and Mr. Sibersky, as occupant, on the grounds that they were 1) violating housing code regulations by refusing access to the apartment to make repairs; and 2) breaching the lease by maintaining the apartment in an unsanitary condition.See Holdover Petition. On June 23, 1999, Mrs. Sibersky entered into a stipulation of settlement with Felds in which she consented to an entry of judgment of possession against her, in exchange for which the landlord waived back rent and paid her the sum of $7,000. See Am. Compl. ¶ 12(a); Stipulation of Settlement, dated June 23, 1999, attached to Compl. ("Stipulation"). Paragraph Seven of the Stipulation reads: "Respondent hereby grants petitioner its agents and employees a complete and general release of all claims arising from the beginning of time to date." See Stipulation. The stipulation was not signed by Mrs. Sibersky but by her lawyer at that time, Mr. John DeMaio. See Pl.'s Mem. Opp. ¶ 14. According to the plaintiffs, Mr. DeMaio did not have the authority to settle the present lawsuit. Id. On June 25, 1999, Mr. Sibersky signed a Mutual General Release with Felds, which specifically did "not include a release of Attorneys for Felds Realty Co., LLC notwithstanding Paragraph 7 of the stipulation." See Mutual General Release, attached to Am. Compl. ("Mutual Release"). According to the Siberskys, neither the stipulation nor the mutual release was intended to cover the release of the defendants. See Am. Compl. ¶ 13(d).
III.
The defendants argue that the plaintiffs' claims should be dismissed on the following grounds: 1) that the plaintiffs are barred by the stipulation and release in state court from bringing this suit against the defendants; 2) that the plaintiffs fail to state claims for violation of the FDCPA; and 3) that the plaintiffs fail to state claims for fraud.
Because the Court dismisses without prejudice the plaintiffs' fraud claims, the Court addresses only the issue of whether the plaintiffs are barred from bringing claims under the FDCPA.
A. 1.
The defendants first argue that the June 23, 1999 stipulation of settlement bars Mrs. Sibersky from bringing this suit against the defendants because the defendants are "agents" of Felds and thus covered by the release contained in Paragraph Seven of the stipulation. Mrs. Siberksy, however, claims that there is no bar to the present suit because the defendants were not covered by the release. She also argues, that the entire stipulation is invalid without her signature. Whether the June 23, 1999 stipulation includes a release of claims against the defendants raises questions of fact that cannot be resolved on a motion to dismiss.
The construction of the stipulation with regard to the release of Mrs. Sibersky's federal claims is a matter of federal law.Dice v. Akron. Canton Youngstown R. Co., 342 U.S. 359, 361 (1952); Olin Corp. v. Conosolidated Aluminum Corp., 5 F.3d 10, 15 (2d Cir. 1993); Prunella v. Carlshire Tenants, Inc., 94 F. Supp.2d 512, 517 (S.D.N.Y. 2000). Courts should, however, apply state law to determine the scope and validity of such releases.See Olin Corp., 5 F.3d at 15; Prunella, 94 F. Supp.2d at 517;Leonzo v. First Unum Life Insurance Co., No. 93 Civ. 0535, 1995 WL 505551, at * 3 (S.D.N.Y. Aug. 23, 1995). Under New York law, courts must "discern the intent of the parties to the extent their intent is evidenced by their written agreement." Olin Corp., 5 F.3d at 15 (internal quotation omitted). "Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used." Id. (internal quotation omitted). Where, however, "contract language is ambiguous, the differing interpretations of the contract present a [n] . . . issue of fact." Bank of America Nat'l Trust and Savings Assoc. v. Gillaizeau, 766 F.2d 709, 715 (2d Cir. 1985); see also Bourne v. Walt Disney Co., 68 F.3d 621, 629 (2d Cir. 1995)
The language of the release in the present case, specifically with regard to the meaning of the term "agents," is ambiguous. While the defendants argue that they, as attorneys for Mrs. Sibersky's landlord, were included within the meaning of the term "agents," Mrs. Sibersky argues that the term "agents" should be limited to the building agents. The stipulation did not specifically include attorneys, and, within two days of the stipulation, Mr. Sibersky signed a mutual general release with Felds in which he specifically excluded the defendant attorneys in this case. At the time the stipulation was signed, this federal action had already been brought against the defendant lawyers, but it is not mentioned in the stipulation and is not explicitly released or dismissed. Thus, it cannot be said that the term "agents" unambiguously included the attorneys without any separate reference to the attorneys and without reference to the lawsuit that was pending against the attorneys.
Where contractual language "is susceptible to differing interpretations, . . . the interpretation of the contract becomes a question of fact for the jury and extrinsic evidence of the parties' intent properly is admissible." Bourne, 68 F.3d at 629 (internal quotation omitted). Given the ambiguous language of the release and the factual dispute between the parties as to their intent in drafting the release, there are questions of fact as to whether the stipulation bars recovery for claims under the FDCPA. Therefore the stipulation and release are not a basis for dismissal under Fed.R.Civ.P. 12(b)(6).
2.
The defendants also argue that Mr. Sibersky lacks standing to sue under the FDCPA because the Sept. 15, 1998 and Sept. 28, 1998 rent demands were addressed to, and served upon, Anita Sibersky only. However, the general civil liability section of the FDCPA is very broad:". . . any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person. . . ." 29 U.S.C. § 1692k(a).
The language of Section 1692k "is couched in the broadest possible language." Conboy v. ATT, 84 F. Supp.2d 492, 504-05 n. 9 (S.D.N.Y. 2000) (citing Riveria v. MAB Collections, Inc., 682 F. Supp. 174, 175 (W.D.N.Y. 1988). In fact, "any person who comes in contact with the proscribed debt collection practices may bring a claim" under certain sections of the FDCPA. Riveria, 682 F. Supp. at 175 (citing Whatley v. Universal Collection Bureau. Inc., 525 F. Supp. 1204, 1206 (N.D. Ga. 1981)); see also Wright v. Finance Service of Norwalk. Inc., 22 F.3d 647, 650 (6th Cir. 1994) ("[T]he phrase 'with respect to any persons includes more than just the addressee of the offending letters [and] at a minimum, includes those persons . . . who 'stand in the shoes of the debtor' or have the same authority as the debtor to open and read the letters of the debtor."). Likewise, persons who have been harmed by an "improper debt practice" may also bring suit. Dutton v. Wolhar, 809 F. Supp. 1130, 1134-35 (D. Del. 1992) (noting that the legislative history of the FDCPA supports the notion that the statute protects people, such as family members of debtors, who may not owe money but who are harassed by debt collection practices).
The defendants are correct that certain sections of the FDCPA are violated only by certain conduct toward a "consumer." The FDCPA defines "consumer" as "any natural person obligated or allegedly obligated to pay any debt." 15 U.S.C. § 1692a(3). Only Mrs. Sibersky was obligated on the lease. Because the lease is in Mrs. Sibersky's name alone, only she is a debtor to Felds. Under New York law, where property is leased to a married woman, she alone is bound by the lease. "The fact that the husband in such a case makes payment of the rent for a period of time, which payments are accepted by the lessor, does not have the effect of creating an independent liability in the husband." 45 NY Jur.2d Dom. Rel . § 235 (1995) (relying on Edgar A. Levy Leasing Co. v. Cohen, 261 N.Y.S. 145, 147-48 (1932)); N.Y. Gen. Oblig. Law § 3-305 (McKinney 1989) ("A contract made by a married woman does not bind her husband or his property.").
In this case, the plaintiffs allege that the defendants violated Sections 1692e(5), 1692e(1), and 1692g. Sections 1692e(ll) and 1692g both specifically refer to obligations to consumers, while Section 1692e(5) contains no such limitation. InConboy, Judge Ward found no violation of Section 1692e(11) because that section only makes it a violation to fail to disclose debt collection information in a communication "with the consumer," and it was undisputed that the plaintiffs were not consumers. Cowboy, 84 F. Supp.2d at 504. See also Dewey v. Associated Collectors. Inc., 927 F. Supp. 1172 (W.D. Wis. 1996) (non-debtor plaintiff not permitted to sue where there was no evidence that the non-debtor plaintiff saw the disputed letter). However, Judge Ward also noted that other sections of the FDCPA were not limited to communications with consumers and there may be liability to non-consumers for violation of one of these other sections. Conboy, 84 F. Supp.2d at 505.
In this case, one of the sections allegedly violated-Section 1692e(5) — is not limited to communications to a consumer and thus Mr. Sibersky could sue for a violation of that section. However, Sections 1692e(1) and 1692g regulate conduct toward consumers. Because Mr. Sibersky is not a consumer, he is not a person as to whom the debt collector failed to comply with a provision of the FDCPA and he is therefore not a person as to whom the defendants could be liable for a violation of those sections. Conboy, 84 F. Supp.2d at 504. Therefore, the defendants' motion to dismiss Mr. Sibersky's claim for a violation of the FDCPA is granted to the extent that his claims for a violation of 15 U.S.C. § 1692e(11) and 1692g are dismissed. However, the motion is denied to the extent that Mr. Sibersky's claim under 15 U.S.C. § 1692e(5) is not dismissed.
B. 1.
The defendants also claim that the plaintiffs fail to allege facts sufficient to state claims under the FDCPA. The defendants first argue that the plaintiffs cannot establish that Borah was a "debt collector" under the FDCPA because they cannot show that Borah prepared or mailed the three-day rent notices. "Debt collector" refers to "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)
The FDCPA applies to lawyers "who "regularly' engage in consumer-debt-collection activity." Heintz v. Jenkins, 514 U.S. 291, 299 (1995). Lawyers sending three-day back rent notices under N.Y. Real Prop. Actions Proc. Law § 711 may be debt collectors under the FDCPA. See Romea v. Heiberger Assoc., 998 F. Supp. 712, 713 (S.D.N.Y. 1997), aff'd 163 F.3d 111 (2d Cir. 1998) (allegation that law firm regularly collected debts owed to landlords was a sufficient allegation of firm's status as "debt collector" to withstand motion to dismiss); Goldstein v. Hutton. Ingram. Yuzek. Gainen. Carroll Bertolotti, 39 F. Supp.2d 394, 396 (S.D.N.Y. 1999) (allegation that three-day notices and corresponding envelopes bore law firm's name and address was sufficient allegation of law firm's status as a "debt collector" to withstand motion to dismiss). The plaintiffs make specific factual allegations in their amended complaint that the defendants regularly prepared and sent three-day notices on behalf of Felds Realty, that the notices were printed on the defendants' paper, and that the notices bore abbreviations used internally by the defendants. The plaintiffs have therefore alleged facts which could, if proven true, show that the defendants were "debt collectors" as defined by the FDCPA.
2.
The defendants further argue that the FDCPA claim should be dismissed on the basis that the plaintiffs fail to allege any actual damages that flowed from the claimed FDCPA violations and that Borah's conduct does not warrant an award of statutory damages under 15 U.S.C. § 1692k(b)(1). In their amended complaint, however, the plaintiffs do allege that they suffered damages, including the loss of their apartment, as a result of the defendants' improper debt collection practices. Given these allegations, it cannot be said that the plaintiffs can prove no set of facts which would entitle them to actual damages under the FDCPA. Moreover, the plaintiffs allege that the defendants engaged in willful, persistent, unlawful debt collection practices which would, if proven true, be factors to be taken into account in assessing statutory damages.
Furthermore, the plaintiffs are not required to allege or prove that they are entitled to actual or statutory damages in order to state a claim for violation of the FDCPA. The plaintiffs are entitled to reasonable costs and attorney's fees for a defendant's violation of the FDCPA regardless of whether they plead or prove actual or statutory damages. See Clomon v. Jackson, 988 F.2d 1314, 1322 (2d Cir. 1993) (valid claim under the FDCPA where plaintiff alleged no actual damages); Pipiles v. Credit Bureau of Lockport. Inc., 886 F.2d 22, 28 (2d Cir. 1989) (even where plaintiff was not entitled to actual or statutory damages, plaintiff still entitled to award of costs and reasonable attorney's fees for violation of the FDCPA); Emanuel v. American Credit Exchange, 870 F.2d 805, 809 (2d Cir. 1989) (same). Accordingly, the plaintiffs' FDCPA claim cannot be dismissed for failure to allege damages.
C.
Finally, the defendants argue that the plaintiffs' claims for fraud should be dismissed.
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8 (a)(2). The allegations in a complaint should be plain because the function of the pleadings is "to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see also Jones v. Capital Cities/ABC. Inc., 874 F. Supp. 626, 628 (S.D.N.Y. 1995). An inadequately pleaded complaint may take one of two forms: first, it may be so poorly composed as to be functionally illegible; and, second, it may be so baldly conclusory that it fails to give notice of the basic events and circumstances of which the plaintiff complains. See Shuster v. Oppleman, No. 96 Civ. 1698, 1999 WL 9845, at *3 (S.D.N.Y. Jan. 11, 1999); Duncan v. ATT Communications. Inc., 668 F. Supp. 232, 234 (S.D.N.Y. 1987). See also De Jesus v. Sears. Roebuck Co., 87 F.3d 65, 70 (2d Cir. 1996) ("Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.") (internal citation omitted)
To state a claim for fraud under New York law, the plaintiff must allege that (1) the defendant made a material misrepresentation, (2) the defendant knew of its falsity, (3) the defendant possessed an intent to defraud, (4) the plaintiff reasonably relied on the misrepresentation, and (5) the plaintiff suffered damage as a result of the misrepresentation. See Kaye v. Grossman, 202 F.3d 611, 614 (2d Cir. 2000); Schlaifer Nance Co. v. Estate of Andy Warhol, 119 F.3d 91, 98 (2d Cir. 1997). Rule 9 (b) of the Federal Rules of Civil Procedure, which must be read together with Rule 8, requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b); Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986); Brooke v. Schlesinger, 898 F. Supp. 1076, 1086 (S.D.N.Y. 1995). Ordinarily, allegations of fraud cannot be founded solely "upon information and belief," except to those matters particularly within the opposing party's knowledge; in the latter instance, allegations must be accompanied by statements of facts upon which the belief is founded. Luce, 802 F.2d at 54 n. 1. In order to satisfy Rule 9 (b), the complaint must "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993). Although Rule 9(b) allows a plaintiff to allege fraudulent intent generally, a plaintiff must "allege facts that give rise to a strong inference of fraudulent intent." Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). "An ample factual basis must be supplied to support the charges." O'Brien v. Nat'l Property Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991)
Even considering that the complaints of pro se litigants should be held to less stringent standards and be liberally construed in their favor, the portions of the plaintiffs' amended complaint pertaining to allegations of fraud fail to comply with both Rules 8 and 9(b). The plaintiffs' rather lengthy and rambling amended complaint borders on incomprehensible. While the plaintiffs generally allege the elements of fraud, at least with respect to the defendants' alleged statements regarding Mr. Abraham Feldstein, the plaintiffs' allegations lack factual underpinnings. For example, the plaintiffs flatly allege that the reference to Mr. Feldstein on the Non-Payment of Rent Petition is a material fact. This statement, without more, is "baldly conclusory." Moreover, the plaintiffs allege that they took actions in reliance upon this "misrepresentation," but the plaintiffs allege no facts in support of their reliance and they fail to explain what significance any statements about Mr. Feldstein had. The plaintiffs appear to suggest that the alleged misrepresentation caused them to settle the state court proceedings on an unfavorable basis, but the plaintiffs fail to allege any connection between the allegedly fraudulent statements and the terms of their settlement agreement.
The allegations of fraudulent statements regarding the Siberskys' dog are even more bizarre. It is unclear how the plaintiff s could have detrimentally relied upon statements made regarding odors allegedly caused by a pet in the plaintiffs' apartment when the plaintiffs had personal knowledge of what they had in the apartment and they allegedly knew that the dog was dead.
Paragraph 13(f) of the plaintiffs' amended complaint begins as follows: "Third fraudulently constructed sham proceeding was a complaint based on a pet that was murdered and deceased since March 18th 1999 and introduced to a lower court in May 28 of 1999 as if the pet animal companion was still alive and generated false statements about which were spurious and tricky untruth labeled as facts under penalty of perjury. The purpose was to defraud the plaintiff and plaintiffs of their valuable apartment. . . ."
However, while the plaintiffs' amended complaint clearly fails to comply with Rules 8 and 9(b) of the Federal Rules of Civil Procedure, the pro se plaintiffs should be afforded another opportunity to attempt to state any claims for fraud that would entitle them to relief. See Salahuddin, 861 F.2d at 42-43. Accordingly, the amended complaint is dismissed without prejudice with leave to amend in accordance with Fed.R.Civ.P. 8 and 9(b).
The plaintiffs may file and serve a second amended complaint. However, if the plaintiffs do so, they must file and serve the second amended complaint within thirty (30) days of the date of this Order. The second amended complaint shall be typed or legibly printed, and organized by numbered paragraphs which clearly state the factual allegations. Moreover, the plaintiffs shall organize their claims into separate counts, shall identify the defendant or defendants against whom each count is made, and shall support each count with the relevant factual allegations as required by Rules 8 and 9(b). See Fed.R.Civ.P. 8, 9(b);Shuster, 1999 WL 9845, at *4.
IV.
The plaintiffs move to amend their complaint and to add additional parties. The motion is granted in view of this Court's determination to allow the plaintiffs to file an amended complaint. However, any amended complaint is of course subject to any appropriate motions to dismiss.
V.
The plaintiffs move pursuant to Fed.R.Civ.P. 11 for sanctions against the defendants on the grounds that the arguments made by the defendants in their motion to dismiss were frivolous and made without a reasonable prefiling inquiry. Rule 11 sanctions are judged under an objective reasonableness standard and are appropriate only when it is patently clear that a pleading has no chance of success. See Ted Lapidus. S.A. v. Vann, 112 F.3d 91, 96 n. 6 (2d Cir. 1997); Int'l Telepassport Corp. v. USFI. Inc., 89 F.3d 82, 86 (2d Cir. 1996); Shuster, 1999 WL 9845, at * 6;Hennessy v. Cement and Concrete Worker's Union Local 18A, 963 F. Supp. 334, 339 (S.D.N.Y. 1997). While the Court denies the defendants' motion to dismiss with respect to some of the plaintiffs' FDCPA claims, it cannot be said that the defendants' arguments were wholly without merit or that they had no chance of success. Accordingly, the plaintiffs' motion for sanctions under Rule 11 is denied.
CONCLUSION
For all of the foregoing reasons, the defendants' motion to dismiss is denied with respect to the plaintiffs' claims pursuant to the FDCPA, except that Mr. Sibersky's claims for violations of 15 U.S.C. § 1692e(11) and 1692g are dismissed. The plaintiffs' common-law claims for fraud are dismissed without prejudice, with leave to amend the complaint in accordance with Rules 8 and 9(b) of the Federal Rules of Civil Procedure. Any amended complaint must be filed within thirty (30) days of the date of this Order. The plaintiffs' motion to amend the complaint is granted. The plaintiffs' motion for sanctions under Federal Rule of Civil procedure 11 is denied.