Gilkes v. Diamond Resorts et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
LAWRENCE GILKES,
Plaintiff,
v.
DIAMOND RESORTS and THE
HILTON GRAND VACATIONS,
Defendants.
REPORT &
RECOMMENDATION
24-cv-06714 (NCM) (LKE)
X
LARA K. ESHKENAZI, United States Magistrate Judge:
Plaintiff Lawrence Gilkes (“Plaintiff” or “Gilkes”) filed this action against Diamond
Resorts (“Diamond”) and Hilton Grand Vacations (“Hilton”) (collectively, “Defendants”) alleging
that Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq. Before the Court, on referral from the Honorable Natasha C. Merle, is the motion of
Defendants to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. For the reasons set forth below, the Court respectfully recommends granting
the motion in its entirety.
I. 	BACKGROUND
A. 	Procedural History
Plaintiff filed his Complaint on September 23, 2024. (Compl., ECF 1.) Defendant Diamond
filed a letter on November 18, 2024, indicating that it intended to file a Motion to Dismiss on a
variety of grounds under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). (Letter
Announcing Intent to File Mot. to Dismiss, ECF 5.) The parties appeared before the Honorable
Natasha C. Merle on May 20, 2025, for a pre-motion conference, during which the Court granted
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Plaintiff permission to file an amended complaint by June 20, 2025. (May 20, 2025, Min. Entry.)
After Plaintiff failed to file an amended complaint by the deadline, Defendants filed a Motion to
Dismiss on July 21, 2025. (Mot. to Dismiss, ECF 21.) Plaintiff filed a Memorandum of Law in
Opposition to Defendants’ Motion to Dismiss on August 19, 2025. (Mem. L. in Opp., ECF 23.)
Defendants filed a Reply on September 2, 2025. (Reply, ECF 24.)
The Honorable Judge Natasha C. Merle referred Defendants’ Motion to Dismiss to this
Court for a Report & Recommendation on September 3, 2025. (Sept. 3, 2025, Text Order.)
B. 	Facts
The facts are drawn from Plaintiff’s Complaint. (See ECF 1.) As required on a motion to
dismiss, the Court accepts as true all well-pled allegations of the Complaint and draws all
reasonable inferences in favor of Plaintiff as the non-moving party.
Plaintiff alleges that, “[o]n or about September 15, 2023,” Diamond sent him a notice
indicating that he owed a debt. (Id. ¶ 6.) Plaintiff states that he promptly disputed this debt,
requesting validation of the debt in writing. (Id. ¶ 7.) He alleges that Diamond did not provide him
with such verification, and instead continued to report the alleged debt to credit reporting agencies
without marking it as disputed. (Id. ¶¶ 8-9.) Plaintiff asserts that as a consequence of Diamond
reporting “inaccurate and unverified information” to credit reporting agencies, Plaintiff’s “credit
score was severely damaged,” “Plaintiff was denied credit from other creditors,” and “Plaintiff lost
two potential home purchases due to the derogatory marks on their credit report.” (Id. ¶ 11.) The
Complaint does not contain any specific allegations against Hilton. (See generally Compl.)
Plaintiff alleges that Defendants’ actions violated the FDCPA, 15 U.S.C. § 1692 et seq. (Id. ¶¶ 12-
13.)
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II. 	LEGAL STANDARD
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
“[T]he court’s task is to assess the legal feasibility of the complaint; it is not to assess the
weight of the evidence that might be offered on either side.” Lynch v. City of New York, 952 F.3d
67, 75 (2d Cir. 2020). Determining whether a Complaint states a claim is “a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679. The Court must “accept the well-pleaded factual allegations set forth in the complaint
as true and draw all reasonable inferences in favor of the plaintiff.” Cuhadar v. Savoya, 766 F.
Supp. 3d 434, 443 (E.D.N.Y. 2025). The Court need not, however, “credit conclusory allegations
or legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d
Cir. 2013), superseded on other grounds by statute, 18 U.S.C. § 2333(d).
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotations omitted).
District courts must “interpret[ a pro se] complaint to raise the strongest claims that it suggests.”
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (cleaned up); see also Chavis v. Chappius, 618
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F.3d 162, 170 (2d Cir. 2010). Moreover, at the pleadings stage of the proceeding, the Court must
assume the truth of “all well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel
v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010), aff’d on other grounds, 569 U.S.
108 (2013) (citation omitted).
III. 	DISCUSSION
Defendants’ Motion asserts several arguments in support of its motion to dismiss. First,
Defendants argue that Diamond is not a proper defendant, as it has not existed since its July 2021
merger with another entity, Dakota Holdings, Inc. (Defs. Mem. L. at 1-2, ECF 21-1.) Second,
Defendants assert that even if Diamond were a proper Defendant, the Complaint improperly lumps
the two separate defendants together, without providing either defendant with sufficient notice of
the allegations made against each defendant. (Id. at 2.) Third, Defendants argue that the Complaint
fails to adequately allege that either Defendant is a “debt collector” under the FDCPA. (Id.) Finally,
Defendants insist that the Complaint fails to state a plausible claim for relief under any of the
counts listed. (Id.) This Court addresses each of Defendants’ assertions in turn.
A. 	Defendant Diamond’s Capacity to be Sued
Defendants argue that Defendant Diamond is not a proper Defendant because it merged
into another entity, Dakota Holdings, years before this lawsuit was filed. (Id. at 1-2, 3.) A
corporation’s capacity to sue or be sued is determined “by the law under which it was organized.”
Fed. R. Civ. P. 17(b)(2). Under New York law, an entity that lacks “the capacity to sue and be
sued” is not a proper defendant. See Rivera v. City of New York, No. 95-cv-3308, 1997 WL 539776,
at *5-6 (S.D.N.Y. Aug. 28, 1997) (dismissing state agency as a defendant because it had not been
granted the power to sue and be sued). Under Delaware law, upon the merger of two corporations,
“the separate existence of all the constituent corporations … shall cease and the constituent
corporations shall become a new corporation.” Del. Code Ann. tit. 8, § 259(a). After a merger is
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complete, “the emerging corporation is the only corporation with capacity to be sued and process
cannot be served on the constituent corporation.” Sevits v. McKiernan-Terry Corp., 264 F. Supp.
810, 811 (S.D.N.Y. 1966); see also Hamilton Partners, L.P. v. Englard, 11 A.3d 1180, 1205 (Del.
Ch. 2010) (“The parent corporation does not receive the right to sue as a result of the merger[.]”).
Defendants’ exhibits establish that Diamond, a corporation established under Delaware
Law, was merged into Dakota Holdings, Inc. in July 2021. (Defs. Mem. L. Ex. A, ECF 21-2; Defs.
Mem. L. Ex. B, ECF 21-3.)1 As a result, Diamond no longer exists as a corporation with the
capacity to be sued. See Sevits, 264 F. Supp. at 811. Because Diamond is not a separate entity with
the capacity to be sued, this Court respectfully recommends that Plaintiff’s claims against
Diamond be dismissed. See A.F., 346 F. Supp. 3d at 545 (dismissing claims against a corporation
which had been merged into its parent company); Bagwell v. World Wrestling Ent., Inc., No. 16-
cv-1350, 2017 WL 3579609, at *5 (D. Conn. May 5, 2017) (same); Thornton Tomasetti, Inc. v.
Anguillan Dev. Corp., No. 14-cv-7040, 2015 WL 7078656, at *2 (S.D.N.Y. Nov. 13, 2015) (“All
parties agree that [defendant] is not a proper defendant because its legal existence terminated when
it merged with Conair Corporation in 1993.”).
B. 	Group Pleading
Defendants assert that, in addition to Diamond’s lack of capacity, the Complaint should be
dismissed because Plaintiff used the singular term “Defendant” to refer to both Defendants. (Defs.
Mem. L. at 2-3.) Defendants also argue that Plaintiff fails to allege a single allegation against
Hilton. (Id. at 9.)
1 Courts may take judicial notice of documents filed with a state’s Secretary of State. See A.F. v. Sorin Grp. USA,
Inc., 346 F. Supp. 3d 534, 545 n.11 (S.D.N.Y. 2018) (taking judicial notice of a Certificate of Ownership filed with
the Delaware Secretary of State); see also Goldman v. Barrett, No. 15-cv-9223, 2017 WL 4334011, at *1 n.3
(S.D.N.Y. July 25, 2017) (taking judicial notice of Pennsylvania Secretary of State records concerning corporate
formation and dissolution). This Court therefore takes judicial notice of the documents filed with the Delaware
Secretary of State, including the information regarding Diamond available on the Secretary of State’s website and
Diamond’s Certificate of Merger with Dakota Holdings. (See Defs. Mem. L. Ex. A, Ex. B.)
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Defendants are correct that Federal Rule of Civil Procedure 8(a)(2) requires a complaint to
provide a “short and plain statement of the claim showing that the pleader is entitled to relief” in
order to give “each defendant fair notice of what the plaintiff’s claim is and the ground upon which
it rests.’” Cooke v. Frank Brunckhorst Co., LLC, 788 F. Supp. 3d 390, 399 (E.D.N.Y. 2025) (first
quoting Fed. R. Civ. P. 8(a)(2); and then quoting LaRose v. Combs, No. 24-cv-8908, 2025 WL
1425756, at *3 (S.D.N.Y. May 16, 2025) (internal quotations omitted)). “[G]roup pleading,” or
lumping together the two separate defendants as one entity referred to as “Defendant,” runs afoul
of Rule 8 by “fail[ing] to give each defendant fair notice of the claims against it.” Romualdo v.
Guru Krupa 104 Corp., No. 19-cv-5188 (DG) (SJB), 2023 WL 6167614, at *8 (E.D.N.Y Sept. 1,
2023); see also Lepore v. NL Brand Holdings LLC, No. 16-cv-08115, 2017 WL 4712633, at *6
(S.D.N.Y. Sept. 28, 2017).
While Plaintiff’s failure to differentiate between the two Defendants was likely due to his
inexperience with the legal system and pro se status, his use of group pleading does obscure “the
true substance” of the Complaint, and fails to comply with Rule 8(a)(2). Mark J. Elkowitz, MD.,
P.C. v. UnitedHealthcare of N.Y., Inc., No. 17-cv-4663 (DLI) (PK), 2021 WL 9594380, at *5
(E.D.N.Y. Mar. 31, 2021) (citation and internal quotation omitted). Moreover, as Defendants note,
the Complaint fails to allege any specific conduct by Hilton. (See Compl.) Indeed, the Complaint
does not even list Hilton in the section identifying the parties. (See Compl. ¶¶ 4-5.) As such, Hilton
does not have fair notice of the claims Plaintiff is asserting against it. Accordingly, this Court
respectfully recommends that the Complaint be dismissed for failure to comply with Rule 8(a)(2).
C. 	FDCPA Debt Collector Requirement
Even assuming Plaintiff has properly named Diamond as a Defendant and that Plaintiff’s
use of the term “Defendant” to refer to both Defendants is permissible and gives Defendants
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sufficient notice of the claims against them, Defendants argue that Plaintiff has failed to state a
valid FDCPA claim because the Complaint does not allege that Defendants are debt collectors as
defined under the FDCPA. (Defs. Mem. L. at 4-7.)
The FDCPA defines a “debt collector” as “any person (1) ‘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 (2) ‘who regularly collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.’” Mullery v. JTM Cap. Mgmt., LLC, No. 18-
cv-549, 2019 WL 2135484, at *2 (W.D.N.Y. May 16, 2019) (quoting 15 U.S.C. § 1692a(6)); see
also Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 61 (2d Cir.
2004) (discussing the FDCPA’s “two alternative predicates for ‘debt collector’ status” (citation
omitted)). The FDCPA does not apply to creditors, defined as individuals who “offer[] or extend[]
credit creating a debt,” and do not receive “an assignment or transfer of a debt in default solely for
the purpose of facilitating the collection of such debt for another, in contrast to the third-party debt
collectors covered by the FDCPA” 15 U.S.C. § 1692a(4); see also Houck v. U.S. Bank, N.A., 689
F. App’x 662, 664-65 (2d Cir. 2017) (finding that FDCPA does not apply to creditors collecting
their own debts); Flores v. Discover Bank, No. 24-cv-5331, 2025 WL 2625745, at *3 (S.D.N.Y.
Sept. 10, 2025) (quoting 15 U.S.C. § 1692a(4)). “The plaintiff in an FDCPA action bears the
burden of proving the defendant’s debt collector status.” Goldstein, 374 F.3d at 60.
The Court agrees with Defendants that Plaintiff has not sufficiently alleged that Defendants
are debt collectors. Plaintiff alleges that “Defendant sent Plaintiff a notice asserting that Plaintiff
owed a debt” but does not specify to whom the debt was owed. (Compl. ¶ 6.) Additionally,
although Plaintiff asserts that Diamond “is a corporation engaged in the business of debt collection
…[and] regularly collects or attempts to collect debts owed or asserted to be owed to others, and
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is a ‘debt collector’ as defined by 15 U.S.C. § 1692a(6),” there are no further facts alleged to
support Plaintiff’s conclusory allegations. (Compl. ¶ 5). The Complaint does not include any
allegations about Hilton being a debt collector. (See generally Compl.). This “single, offhand,
conclusory allegation” without any “factual support” that Diamond “acted as a debt collector (as
opposed to a creditor)” is insufficient to allege that Defendants—Diamond and Hilton—are debt
collectors. Walker v. Pitnell, No. 19-cv-4344 (PKC) (LB), 2020 WL 5764102, at *4 (E.D.N.Y.
Sept. 26, 2020) (finding the pro se plaintiff’s allegation that the defendant “‘was a debt collector,
and not a creditor’” to be insufficient) (citing Gold v. Shapiro, Dicaro & Barak, LLC, No. 18-cv-
6787 (PKC) (SJB), 2019 WL 4752093, at *5 (E.D.N.Y. Sept. 30, 2019) (dismissing defendant
bank where plaintiff only made the conclusory allegation that the “principal purpose of each of
[d]efendant’s business[es] is debt collection” (record citation omitted)).
Accordingly, because Plaintiff has failed to allege sufficiently that Defendants are debt
collectors, this Court respectfully recommends dismissing the Complaint for failure to state a claim.
D. 	Plaintiff’s Alleged FDCPA Violations
For the sake of completion, the Court will also address Defendants’ arguments regarding
the insufficiency of Plaintiff’s four claims for relief. (See Defs. Mem. L. at 7-8.)
1. 	Plaintiff’s First Claim: Failure to Validate the Debt, 15 U.S.C. § 1692g
Plaintiff claims that Diamond “failed to provide Plaintiff with the requested validation of
the debt” in violation of 15 U.S.C. § 1692g. (Compl. ¶¶ 7-8, 13(a).) 15 U.S.C. § 1692g, in pertinent
part, requires only that “a debt collector [] communicate certain information to a debtor when
attempting to collect a debt, including the amount of the debt, the name of the creditor to whom
the debt is owed, and a statement that the consumer has thirty days after receipt of the notice to
dispute the validity of the debt.” Rosenberg v. Client Servs., Inc., No. 19-cv-6181, 2020 WL
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2732017, at *5 (S.D.N.Y. May 26, 2020) (citing 15 U.S.C. § 1692g(a)). If the debtor disputes the
validity of the debt within the thirty-day window,
[T]he debt collector shall cease collection of the debt … until the
debt collector obtains verification of the debt or a copy of a
judgment, or the name and address of the original creditor, and a
copy of such verification or judgment, or name and address of the
original creditor, is mailed to the consumer by the debt collector.
15 U.S.C. § 1692g(b).
The Complaint does not contain any factual allegations in support of this claim outside of
his conclusory assertion that Diamond failed to provide Plaintiff with the requested validation. He
notes only that “debt collectors must cease collection efforts until they have properly validated the
debt upon the consumer’s request.” (Compl. ¶ 13(a).) Plaintiff must provide more than mere
conclusory allegations to succeed at the motion to dismiss stage. Rothstein, 708 F.3d at 94 (noting
that courts need not accept as true “conclusory allegations or legal conclusions couched as factual
allegations.”). As such, even if Diamond were to be considered a debt collector under the FDCPA,
the Court respectfully recommends that Plaintiff’s claim under 15 U.S.C. § 1692g be dismissed.
2. 	Plaintiff’s Second Claim: False or Misleading Reporting, 15 U.S.C. §
1692e
Plaintiff asserts that “Defendant continued to report the disputed debt to credit reporting
agencies without marking the debt as disputed, in violation of 15 U.S.C. § 1692e(8).” (Compl. ¶
9.) 15 U.S.C. § 1692e prohibits the use of “false, deceptive, or misleading representation[s] or
means in connection with the collection of any debt,” and “[w]ithout limiting the general
application of the foregoing,” contains a list of sixteen non-exhaustive proscribed acts. One such
proscribed 	act is “[c]ommunicating or threatening to communicate to any person credit
information which is known or which should be known to be false, including the failure to
communicate that a disputed debt is disputed.” Id. § 1692e(8). Plaintiff offers no factual allegations,
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however, to support his claim that Defendants engaged in such misleading behavior. Instead, he
cites Russell v. Absolute Collection Servs., 763 F.3d 385, 395-96 (4th Cir. 2014), which involved
allegations of a debt collector threatening to report known disputed debts to the national credit
bureaus. (Compl. ¶ 13(b).) Plaintiff has not presented any allegations that Defendants engaged in
similar threats or misleading behavior. As such, this Court respectfully recommends that Plaintiff’s
15 U.S.C. § 1692e(8) claim be dismissed.
3. 	Plaintiff’s Third Claim: Harassment and Abuse, 15 U.S.C. § 1692d
Plaintiff alleges that “Defendant engaged in conduct that the FDCPA defines as harassing
and abusive by continuing to collect on a disputed debt without validation, in violation of 15 U.S.C.
1692d.” (Compl. ¶ 13(c).) 15 U.S.C. § 1692d prohibits debt collectors from “engag[ing] in any
conduct the natural consequence of which is to harass, oppress, or abuse any person in connection
with the collection of a debt.” Alausa v. Monterey Fin. Servs., LLC, No. 22-cv-3814 (PKC) (LB),
2023 WL 6121780, at *5 (E.D.N.Y. Sept. 19, 2023) (quoting 15 U.S.C. § 1692d). Section 1692d
provides a list of nonexclusive examples of harassing, oppressive, or abusive behavior, including
“[t]he use or threat of violence or other criminal means,” “[t]he use of obscene or profane language,”
and “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or
continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C.
§§ 1692d(1), (2), (5).
Even if Diamond were a debt collector under the FDCPA, Plaintiff’s allegation that
“Defendant engaged in conduct that the FDCPA defines as harassing and abusive by continuing
to collect on a disputed debt without validation” is insufficient to state a colorable claim of
harassment under the FDCPA. (Compl. ¶ 13(c).) The Complaint does not specify any kind of
harassing or abusive behavior, and as discussed above, Plaintiff has not sufficiently alleged that
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no validation was given. Supra III(D)(1). Furthermore, he does not allege what collection efforts
took place outside of Diamond “continu[ing] to report the disputed debt to credit reporting
agencies without marking the debt as disputed.” (Compl. ¶ 9.) “[R]eporting information to the
credit reporting agencies is expressly permitted under [FDCPA] Sections 1692c(b) and 1692d(3),”
and Plaintiff provides no additional facts to support his claim that the debt was not marked as
disputed. See Ross v. Cavalry Portfolio Servs., LLC, No. 23-7861, 2024 WL 4404043, at *1 (2d
Cir. Oct. 4, 2024). Therefore, this Court respectfully recommends that Plaintiff’s 15 U.S.C. §
1692d claim be dismissed.
4. 	Plaintiff’s Fourth Claim: Use of Deceptive Means, 15 U.S.C. § 1692e
Plaintiff alleges that “Defendant used false and deceptive representations in connection
with the collection of the debt.” (Compl. ¶ 13(d).) 15 U.S.C. § 1692e prohibits the use of “false,
deceptive, or misleading representation[s] or means in connection with the collection of any debt,”
and “[w]ithout limiting the general application of the foregoing,” contains a list of sixteen non-
exhaustive proscribed acts. Importantly, and “as a natural corollary to the least sophisticated
consumer test, only material errors violate Section 1692e.” See Rosenberg, 2020 WL 2732017, at
*3 (citing Bryan v. Credit Control, LLC, 954 F.3d 576, 582 (2d Cir. 2020)).
The Complaint does not include allegations of the use of deceptive means beyond
Plaintiff’s general claim that Defendants used “false and deceptive representations in connection
with the collection of the debt.” (Compl. ¶ 13(d).) Plaintiff does not explain which representations
were false and deceptive. Because “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” at the motion to dismiss stage, this Court
respectfully recommends that Plaintiff’s 15 U.S.C. § 1692e claim be dismissed. Gabriel v. Equifax,
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Inc., No. 22-cv-2226 (PKC) (MMH), 2024 WL 2022263, at *2 (E.D.N.Y. May 7, 2024) (quoting
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011)).
E. 	Leave to Amend
While “[o]rdinarily,” a court “should not dismiss a pro se plaintiff’s complaint without
granting leave to amend when a liberal reading of the complaint gives any indication that a valid
claim might be stated,” dismissal with prejudice is appropriate when “amendment would be futile”
because “there is no indication that [the plaintiff] might plead a valid claim.” Hariprasad v. New
York, 722 F. App’x 102, 103 (2d Cir. 2018) (citation and internal quotations omitted)
Here, Defendants argue the Complaint should be dismissed with prejudice. (Defs. Reply at
3, ECF 24.) In his opposition to the motion to dismiss, Plaintiff does not specifically request the
opportunity to replead, but instead, merely repeats the same conclusory allegations from his
Complaint, which suggests that Plaintiff will be unable to cure the deficiencies identified herein.
(See Mem. L. in Opp.) Moreover, Plaintiff was given an opportunity to amend after the Court held
a pre-motion conference regarding Defendants’ anticipated motion to dismiss, and Plaintiff chose
not to avail himself of that opportunity. (See May 20, 2025, Min. Entry.) In any event, reading the
Complaint liberally, the Court does not find any allegations to suggest that Plaintiff will be able to
plausibly allege that (1) Diamond is a proper Defendant, (2) Hilton is a debt collector as defined
by the FDCPA, and (3) Hilton engaged in conduct in violation of the FDCPA. See Hussein v.
Occupant of Off. of CEO & CFO of Bank of Am., Nat’l Ass’n, No. 24-cv-4477 (RPK) (MMH),
2025 WL 2783108, at *4 (E.D.N.Y. Sept. 30, 2025) (denying pro se plaintiff leave to amend where,
inter alia, plaintiff failed to plausibly allege that “he is a consumer who owes a debt or that Bank
of America . . . is a debt collector.”). Accordingly, any amendment would be futile, and the Court
respectfully recommends dismissing Plaintiff’s claims with prejudice.
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IV. 	CONCLUSION
Based on the foregoing, this Court respectfully recommends that Defendants’ motion to
dismiss be granted.
A copy of this Report and Recommendation is being served on Defendants via ECF. The
Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to
Plaintiff Lawrence Gilkes at the following address forthwith: 676 East 40th Street, Brooklyn, NY
11210. Plaintiff is also directed to mail a copy of this Report and Recommendation to Defendants
and to file proof of service of mailing by February 6, 2026.
Within 14 days of service, any party may serve and file specific written objections to this
Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any requests for
an extension of time to file objections shall be directed to Judge Natasha C. Merle. If a party fails
to object timely to this Report and Recommendation, it waives any right to further judicial review
of this decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).
SO ORDERED.
Brooklyn, New York
February 2, 2026
______________________________
LARA K. ESHKENAZI
United States Magistrate Judge
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