Opinion
CIVIL ACTION NO. 03-3579
October 17, 2003
ORDER AND OPINION
Buzoiu alleges in her class action complaint that a dunning letter sent to her by Risk Management Alternatives, Inc. ("RMA") violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). On September 15, 2003, this Court denied RMA's motion to dismiss her complaint under Fed.R.Civ.Pr. 12(b)(6). RMA now seeks reconsideration of the September 15, 2003, Order. As explained below, RMA's motion will be denied.
The letter in question set forth an offer to settle Buzoiu's alleged debt, and then stated: "If you do not take advantage of this offer, we will proceed with our normal collection efforts." Under the FDCPA, Buzoiu can recover if the jury believes that RMA represented in a "false, deceptive or misleading" manner that it would take certain action which it did not, in fact, intend to take, in order to pressure her into accepting the settlement offer set forth in its letter. 15 U.S.C. § 1692e. Buzoiu has alleged that the settlement offer was actually repeated to her after the deadline. She claims, therefore, that RMA's threat to proceed to its "normal collection efforts" was false, misleading or deceptive.
In its 12(b)(6) motion, RMA argued that, as a matter of law, the phrase "normal collection efforts" could not be found to represent a threat of further action. I disagreed, writing: "Indeed, it is not immediately apparent what the function of the sentence is in the letter, if it is not to suggest negative consequences for those who ignore the settlement offer." September 15, 2003, Order at 5. I also wrote: "The least sophisticated consumer could plausibly interpret the phrase `normal collection efforts' as including some sort of eventual court action."Id.
RMA argues that my determination in this regard was a clear error of law, since RMA's complaint does not even allege that the letter threatened court action, but merely that it falsely represented that the settlement offer would expire after thirteen days. Complaint at ¶ 34.
A motion for reconsideration may be granted to correct a clear error of law or to prevent manifest injustice. United States v. $46.000 in United States Currency, Civ. A. No. 02-6805, 2003 WL 22120261 at *1 (E.D. Pa. Sep. 9, 2003).
However, reconsideration is not warranted here. My decision was not based on the assumption that RMA's letter threatened court action, but on the possibility that it could be found, without the tortured or idiosyncratic reading frowned upon in King v. Arrow Financial Services, LLC, Civ. A. No. 02-867, 2003 WL 21780973 at *3 (E.D. Pa. Jul. 31, 2003), to threaten measures which RMA did not intend to take — whether litigation or some other measure. A threat of litigation is not required to find liability under 15 U.S.C. § 1692e, nor, of course, is it required by King.
Since Buzoiu's factual allegations, if proved, could support a verdict against RMA under the FDCPA, I re-affirm my earlier conclusion that dismissal of her complaint under Federal Rule 12(b)(6) would be inappropriate.
Finally, I will not issue a certificate of appealability. An order denying a motion to dismiss is appropriately certified for collateral review only where it (1) conclusively determines a disputed question; (2) resolves an important issue separate from the merits of the underlying action; and (3) would be effectively unreviewable on appeal from a final judgment. Tara M. by Kantner v. City of Philadelphia, 145 F.3d 625, 627 (3d Cir. 1998), citing Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983). The issue here does not meet either the second or the third criteria.
My Order follows:
ORDER
AND NOW, this 17th day of October, 2003, upon consideration of RMA's Motion for Reconsideration Of The Order Denying Its Motion To Dismiss The Amended Class Action Complaint, docketed in this matter as Document No. 17, and Buzoiu's response thereto, it is hereby ORDERED that RMA's Motion for Reconsideration is DENIED.