Not a Lexis Advance subscriber? Try it out for free.

Nicholas v. CMRE Fin. Servs.

United States District Court for the District of New Jersey

June 9, 2009, Decided; June 11, 2009, Filed

Civil Action No.: 08-4857 (JLL)

Opinion

LINARES, District Judge.

This matter comes before the Court on Defendant CMRE Financial Services, Inc.'s ("Defendant" or "CMRE") motion for a more definite statement [CM/ECF # 5]. No oral argument was held. Fed. R. Civ. P. 78. For the reasons set forth in this Opinion, Defendant's motion is granted.

In her Complaint, Plaintiff Christine M. Nicholas ("Plaintiff" or "Nicholas") alleges that CMRE acquired rights to a personal debt she had incurred. (Compl. PP 16, 19.) CMRE then telephonically contacted Nicholas numerous times subsequent to September, 2007, in an attempt to collect the debt. (Id. PP 22-23.) At least some of these communications were in the form of pre-recorded voice messages to Nicholas's cellular phone. (Id. P 23.) According to Plaintiff, the messages uniformly and deceptively failed to adequately disclose CMRE's identity, mention that the calls were from a debt collector, or provide information on the purpose of the call. (Id. PP 22-28.)  [*2] Plaintiff further alleges that CMRE used artificial or prerecorded dunning calls at some point after September, 2004; that she was charged by her cellular phone for these incoming calls; and that she did not consent to CMRE making such calls to her cellular phone. (Id. PP 29-34.)

Plaintiff filed her class action Complaint in this Court on September 30, 2008, asserting the federal question and diversity jurisdiction of this Court. 28 U.S.C. §§ 1331, 1332; Compl. P 4-5. The instant motion followed.

DISCUSSION

Rule of Civil Procedure 12(e) permits a defendant to make a motion for a more definite statement "[i]f a pleading . . . is so vague and ambiguous that a party cannot reasonably be required to frame a responsive pleading." Such a motion "shall point out the defects complained of and the details desired." Fed. R. Civ. P. 12(e). Whether to grant such a motion is soundly within the district court's discretion. Clark v. McDonald's Corp., 213 F.R.D. 198, 232 (D.N.J. 2003). When a complaint does not provide a defendant notice of the facts underlying the plaintiff's claim(s), the defendant cannot adequately frame a proper response. The "Rule 12(e) motion for a more definite statement is perhaps  [*3] the best procedural tool available to the defendant to obtain the factual basis underlying [the] plaintiff's claim for relief." Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006). With this framework in mind, the Court turns now to Defendant's motion.

CMRE argues that the Complaint is deficient on several grounds: that it does not sufficiently state the elements of a claim under 15 U.S.C. § 1692d(6) of the Fair Debt Collection Practices Act ("FDCPA"), does not indicate how Defendant actually violated 15 U.S.C. § 1692e(11), does not provide sufficient detail for Defendant to raise jurisdictional defenses under Rule 12, fails to demonstrate that Plaintiff is an appropriate class plaintiff, prevents Defendant from framing defenses to Plaintiff's Telephone Consumer Protection Act ("TCPA") claims, and fails to set forth class action allegations sufficiently to permit defenses based on Rule 23. (Def. Br. at 10-16.)

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2009 U.S. Dist. LEXIS 49105 *; 2009 WL 1652275

CHRISTINE M. NICHOLAS, Plaintiff, v. CMRE FINANCIAL SERVICES, INC., et al., Defendants.

Notice: NOT FOR PUBLICATION

Subsequent History: Motion denied by Nicholas v. CMRE Fin. Servs., 2010 U.S. Dist. LEXIS 25373 (D.N.J., Mar. 16, 2010)

CORE TERMS

allegations, ambiguous, diversity, pleadings, telephone, definite statement, citizenship