Julie Somerset, individually and on behalf of all others similarly situated, Plaintiffv.Stephen Einstein & Associates, P.C. and Stephen Einstein, Defendants
MEMORANDUM OF DECISION & ORDER The plaintiff Julie Somerset (the “Plaintiff”) initiated this putative class action against Stephen Einstein & Associates, P.C. (“Einstein, P.C.”) and Stephen Einstein (“Einstein”) (collectively, the “Defendants”) for damages stemming from alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C., 1692 et seq. (“FDCPA”).Presently before the Court is a motion by the Defendants, pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(b)(6) to dismiss the complaint, and a motion by the Plaintiff to amend the complaint. The Defendants had adequate notice and time to respond to the proposed amended complaint (the “Amended Complaint”), and thus the Court will consider the motion to dismiss in light of the new allegations in the Amended Complaint. See Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221, 226 (E.D.N.Y. 2015) (Spatt, J.) (“Here, as the Defendants had sufficient opportunity to respond to the proposed amended complaint, the merits of the Defendants’ motions to dismiss will be considered in light of the amended complaint.”); Schwartzco Enterprises LLC v. TMH Mgmt., LLC, 60 F.Supp.3d 331, 338 (E.D.N.Y. 2014) (Spatt, J.) (“Where, as here, the Plaintiff seek[s] to amend his complaint while a motion to dismiss is pending, a court has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion to dismiss as moot to considering the merits of the motion in light of the amended complaint.”).Accordingly, the outcome of the Plaintiff’s motion to amend turns on the Amended Complaint’s ability to survive the Defendants’ motion to dismiss. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (noting that “[a]n amendment to a pleading will be futile if a proposed claim could not withstand a motion pursuant to Rule 12(b)(6)”); Lopez-Serrano v. Rockmore, 132 F. Supp. 3d 390, 399 (E.D.N.Y. 2015) (Spatt, J.) (“If the PSAC cannot survive the motion to dismiss, then the Plaintiff’s cross-motion to amend will be denied as futile.”).For the following reasons, the Court denies the Defendants’ motion to dismiss and grants the Plaintiff’s motion to amend.I. BACKGROUNDUnless otherwise stated, the following facts are drawn from the Amended Complaint, and construed in a light most favorable to the Plaintiff.A. THE RELEVANT FACTSThe Plaintiff is a citizen of the State of New York from whom the Defendants attempted to collect a consumer debt allegedly owed by the Plaintiff. ECF 14-2 2. Einstein, P.C. is a professional corporation doing business in New York State, whose principal purpose is the collection of debts using the mail and telephone. Id. 3. Einstein is an attorney and principal of Einstein P.C. Id. 4.On or about January 10, 2017, the Defendants drafted and mailed an “Income Execution” directed to the Plaintiff’s employer and forwarded to the Plaintiff. Id. 9. The Plaintiff alleges that she received said Income Execution, and that the Income Execution was the first and only communication received by the Plaintiff from the Defendants. Id.
