Sherry Fenn v. CIR Law Offices, No. 1:2010cv01903 - Document 11 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION and ORDER Re: Defendant's Motion to Dismiss (Doc. 5 ), Signed by Judge Oliver W. Wanger on 3/8/2011. Any amended complaint shall be filed within twenty (20) days following date of electronic service of this decision. Defendant shall have twenty-one (21) days to respond. (Arellano, S.)
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Sherry Fenn v. CIR Law Offices Doc. 11 1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 SHERRY FENN, No. 1:10-CV-01903-OWW-SMS 7 MEMORANDUM DECISION AND ORDER RE: DEFENDANT S MOTION TO DISMISS (Doc. 5) Plaintiff, 8 9 v. 10 11 CIR, Law Offices, and Does 1 through 10, inclusive, 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 I. INTRODUCTION. Plaintiff Sherry Fenn filed a complaint against Defendant CIR, Law Offices ( CIR ), a debt collector, pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq ( FDCPA ).1 Plaintiff alleges that Defendant violated the FDCPA by engaging in abusive and improper behavior while attempting to collect a debt from Plaintiff. Defendant CIR moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Defendant argues that Plaintiff has failed to state a cognizable violation of the FDCPA. 24 25 26 27 28 1 The complaint also alleged violations of the California Rosenthal Act, Cal. Civ. Code § 1788, et seq. Those claims were abandoned on February 21, 2011. See Doc. 7 at 4:4-4:6 ("Plaintiff agrees that the Rosenthal Act does not apply to this Defendant and voluntarily dismisses her Second Cause of Action for violations of the Rosenthal Act."). 1 Dockets.Justia.com II. BACKGROUND. 1 2 The following background facts are taken from the parties' 3 submissions in connection with the motions and other documents on 4 file in this case. This matter involves a dispute between a Plaintiff and 5 6 Defendant CIR concerning the latter s attempts to collect an unpaid 7 debt of $2,651.58 (owed to Target National Bank). 8 2010, a validation notice was purportedly sent to Plaintiff seeking 9 the 10 balance of the debt, $2,651.58. It is On January 29, undisputed that Plaintiff did not respond to the validation notice. 11 On August 18, 2010, Defendant CIR filed a debt collection suit 12 against Plaintiff on behalf of Target National Bank in the Superior 13 Court 14 Defendant 15 description, was served by substituted service on September 4, 16 2010. 17 of California, claims County that of Stanislaus, Plaintiff, or Case someone No. 657041. matching her On September 10, 2010, Plaintiff contacted Defendant CIR to 18 discuss a settlement. Plaintiff offered to resolve the matter for 19 $1,458.37, the amount identified in an expired settlement letter. 20 The parties ultimately agreed to settle the debt collection matter 21 for $1,856.78. 22 On September 13, 2010, Defendant CIR received a cashier s 23 check from Plaintiff in the amount of $1,856.78. Defendant 24 dismissed the state court action against Plaintiff on October 13, 25 2010. 26 On October 11, 2010, Plaintiff filed this action to recover 27 actual, statutory and punitive damages stemming from Defendant s 28 2 unlawful debt collection practices.2 1 allegedly The federal 2 complaint advances two claims for relief: (1) violations of the 3 Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.; and 4 (2) violations of the California Rosenthal Act, Cal. Civ. Code § 5 1788 et seq. 6 On November 24, 2010, Defendant moved to dismiss this action 7 on grounds that Plaintiff has not stated a claim upon which relief 8 can be granted.3 9 is limited to the merits of the FDCPA claim against Defendant. Plaintiff's opposition, filed February 21, 2011, See 10 Doc. 7 at 4:4-4:6 ( Plaintiff agrees that the Rosenthal Act does 11 not apply to this Defendant and voluntarily dismisses her Second 12 Cause of Action for violations of the Rosenthal Act. ). 13 III. LEGAL STANDARD. 14 15 Federal Rule of Civil Procedure 12(b)(6) permits a motion to 16 dismiss a claim for failure to state a claim upon which relief can 17 be granted[.] 18 To survive a motion to dismiss, a complaint must contain 19 sufficient factual matter, accepted as true, to state a claim to 20 relief that is plausible on its face. 21 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 22 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans 23 Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). Ashcroft v. Iqbal, 129 This tenet - that 24 2 25 26 27 28 Plaintiff requested actual damages for emotional distress, along with the maximum statutory damages of $1,000.00 per violation. 3 While the motion to dismiss was filed on November 22, 2010, the Memorandum of Points & Authorities appears on the docket as Doc. 8, filed on February 22, 2011. 3 1 the court must accept as true all of the allegations contained in 2 the complaint - is inapplicable to legal conclusions. Iqbal, 129 3 S.Ct. at 1949. Accordingly, [t]hreadbare recitals of the elements 4 of a cause of action, supported by mere conclusory statements, do 5 not suffice. 6 claim has facial plausibility when the plaintiff pleads factual 7 content that allows the court to draw the reasonable inference that 8 the defendant is liable for the misconduct alleged. 9 (citing Twombly, 550 U.S. at 556). Id. (citing Twombly, 550 U.S. at 555). Rather, [a] Id. at 1949 Factual allegations that only 10 permit the court to infer the mere possibility of misconduct do 11 not show that the pleader is entitled to relief. Id. at 1950. 12 IV. 13 14 DISCUSSION. The FDCPA imposes strict liability on debt collectors for 15 their 16 violations that are not knowing or intentional. 17 Credit Sys., 531 F.3d 1002, 1004-05 (9th Cir. 2008); 18 Clark v. Capital Credit & Collection Serv., Inc., 460 F.3d 1162, 19 1176 & n. 11 (9th Cir. 2006). 20 claim, plaintiff must prove that: (1) she was the object of 21 collection activity arising from consumer debt; (2) defendants are 22 debt collectors as defined by the FDCPA; 23 engaged in an act or omission prohibited by the FDCPA. 24 Som v. Daniels Law Offices, P.C., 573 F. Supp. 2d 349, 356 (D. 25 Mass. 2008). 26 violations, i.e., it makes debt collectors liable for Reichert v. Nat'l see also In order to prevail on a FDCPA and (3) defendants have See, e.g., Defendants do not dispute that Plaintiff was the object of 27 collection activity arising from consumer debt. 28 alleges that Defendant is a debt collector within the meaning of 4 The complaint 1 2 FDCPA. Compl., Doc. 1, ¶ 2. Defendant asserts, however, Plaintiff has failed to 3 sufficiently allege that it engaged in any act or omission 4 prohibited by the FDCPA. 5 allegations as conclusory and unsustainable. Defendant characterizes Plaintiff s 6 Plaintiff brings one FDCPA claim premised on violations of 7 various FDCPA subsections, including 15 U.S.C. § 1692b(1), § 8 1692b(2), 9 1692e(9) and § 1692e(10): § 1692b(3), § 1692d(2), § 1692d(5), § 1692e(5), § 21. The Defendants contacted third parties and failed to identify themselves and further failed to confirm or correct location information, in violation of 15 U.S.C. § 1692b(1). 22. The Defendants informed third parties of the nature of Plaintiff s debt and stated that the Plaintiff owed a debt, in violation of 15 U.S.C. § 1692b(2). 23. The Defendants contacted third parties in regards to the Plaintiff s debt on numerous occasions, without being asked to do so, in violation of 15 U.S.C. § 1692b(3). 24. The Defendants used profane and abusive language when speaking with the consumer, in violation of 15 U.S.C. § 1692d(2). 25. The Defendants caused a phone to ring repeatedly and engaged the Plaintiff in telephone conversations, with the intent to annoy and harass, in violation of 15 U.S.C. § 1692d(5). 26. The Defendants threatened to take legal action, without actually intending to do so, in violation of 15 U.S.C. § 1692e(5). 27. The Defendants falsely misrepresented to the Plaintiff that the documents received by the Plaintiff from the Defendant were authorized by a court or official, in violation of 15 U.S.C. § 1692e(9). 28. 10 The Defendants employed false and deceptive means to collect a debt, in violation of 15 U.S.C. § 1692e(10). 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Compl., ¶¶ 21-28. 28 5 1 Plaintiff s complaint is insufficient to state a claim for 2 relief because it merely asserts a list of legal conclusions that 3 Defendant violated several provisions of the FDCPA. 4 Compl., ¶ 24 ( The Defendants used profane and abusive language 5 when speaking with the consumer, in violation of 15 U.S.C. § 6 1692b(3). ). 7 support these legal conclusions. 8 third element of the FDCPA claim, i.e., whether the debt collector 9 engaged in an act or omission prohibited by the FDCPA, Plaintiff 10 See, e.g., But the complaint does not plead sufficient facts to For instance, to establish the pleads that: 12. CIR called the Plaintiff numerous times per day in an attempt to collect the Debt with the intent to harass. 13. CIR was rude Plaintiff. 14 14. CIR discussed the Debt with the Plaintiff s father. 15 15. CIR sent papers to the Plaintiff insinuating a court action had been initiated. 16. CIR threatened to file legal action against the Plaintiff. To date, no such action has been filed. 11 12 13 and abusive when speaking to the 16 17 18 Compl., ¶¶ 12-16. 19 These facts simply repeat the relevant statutory language 20 without any dates, identities or the circumstances. While 21 Plaintiff has pled adequate facts to establish that CIR used the 22 telephone to attempt to collect a debt, it is unclear when the 23 conversations took place, who initiated the conversations, what was 24 allegedly discussed and/or disclosed, and in what manner CIR was 25 rude and abusive. These basic facts are necessary to maintain 26 27 28 6 1 causes of action under §§ 1692b and 1692d of the FDCPA.4 2 Skelley v. Ray Klein, Inc., No. 09-6242-AA, 2010 WL 438148, at 3 3 (D. Or. Feb. 3, 2010)( Plaintiff's claims are speculative as he 4 relies only on his assertion that the phone calls are false and See 5 6 4 Section 1692b states in relevant part: 7 8 9 Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall -(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer; 12 (2) not state that such consumer owes any debt; 13 (3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information; 10 11 14 15 16 17 18 15 U.S.C. § 1692b(1)-(3). Section 1692d states in relevant part: 19 22 A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section [...] 23 (2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader. (5) Causing 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. 20 21 24 25 26 27 28 15 U.S.C. § 1692d(2), (5). 7 1 deceptive [] [t]hat label is insufficient to state a claim. ); 2 accord Narog v. Certegy Check Services, Inc., No. C-10-03116 SI --- 3 F. Supp. 2d ----, 2011 WL 70595, at 4 (N.D. Cal. Jan. 10, 2011)( A 4 plaintiff cannot allege a claim for violation of the FDCPA based on 5 conduct that occurred after he paid his debt in full, and after the 6 debt collector acknowledged that the debt was paid in full. ).5 7 Plaintiff's assertions are insufficient to state a claim pursuant 8 to §§ 1692b and 1692d. 9 those sections in her complaint. Plaintiff does little more than reiterate 10 Plaintiff also fails to state a claim under § 1692e(5). A 11 violation occurs under § 1692e(5) when a debt collector threatens 12 to take any action that cannot legally be taken or that is not 13 intended to be taken. 14 just a threat - and Plaintiff does not otherwise allege how CIR s 15 conduct violated § 1692e(5), i.e., it is not alleged that CIR was 16 (1) legally barred from pursuing a debt collection suit, or (2) 17 lacked the requisite intent to do so. 18 Here, legal action was taken - it was not Plaintiff s claims under §§ 1692e(9) and (10) fail for the 19 same reasons 20 as articulated above. Section 1692e states in relevant part: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section [...] 21 22 23 24 5 25 26 27 28 Under the FDCPA, once a debt is paid there is no debt and there can be no debt collection that violates the FDCPA. See, e.g., Gorbaty v. Portfolio Recovery Assocs., LLC, 355 F. App'x 580 (3d Cir. 2009), cert. denied, --- U.S. ----, 130 S.Ct. 2116 (2010). As Plaintiff fails to identify when or how CIR was rude and abusive or when her father was contacted, it is unclear whether she has plead a prima facie claim under the FDCPA. 8 1 (9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval. 2 3 4 (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. 5 6 7 15 U.S.C. § 1692e(9)-(10). 8 Plaintiff has not pleaded any facts to support a claim under 9 §§ 1692e(9) and (10). No factual allegations describe how CIR, as 10 a debt collector, used or distributed any false or deceptive 11 written communication or misrepresented itself to collect a debt or 12 to obtain information about Plaintiff. Facts, not labels or black 13 letter restatements, plead actionable claims in this Circuit. See 14 Twombly, 550 U.S. at 570 (2007) (holding that a plaintiff's 15 obligation to provide the grounds of his entitlement to relief 16 requires more than labels and conclusions, and a formulaic 17 recitation of the elements of a cause of action will not do. ). 18 Further, there are no facts to indicate that the papers allegedly 19 sent by CIR to Plaintiff are of the same class/type as the 20 documents described in § 1692e(9). 21 Supreme Court authority requires that Plaintiff plead facts to 22 appropriately identify with particularity the conduct undertaken by 23 CIR that she claims was unlawful. Plaintiff has not done so. 24 Defendant's Motion to dismiss Plaintiff's FDCPA claim is granted 25 with leave to amend. 26 /// 27 /// 28 9 V. CONCLUSION. 1 2 For the reasons stated: 3 1. Plaintiff has failed to plead the requisite facts to establish a cognizable legal claim under the FDCPA. 4 5 2. 6 Defendant's Motion to dismiss Plaintiff's FDCPA claim against Defendant CIR is GRANTED WITH LEAVE TO AMEND. 7 8 3. 9 Plaintiff's Rosenthal Act claim against Defendant CIR is DISMISSED WITH PREJUDICE. 10 11 4. 12 Any amended complaint shall be filed within twenty ("20") 13 days following date of electric service of this decision. 14 Defendant shall have twenty-one ( 21") days to respond. 15 16 IT IS SO ORDERED. 17 Dated: aa70i8 March 8, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 10
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