Sherry Fenn v. CIR Law Offices
Filing
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ORDER DISMISSING CASE for Failure to State a Claim, signed by Magistrate Judge Sandra M. Snyder on 6/28/11. CASE CLOSED. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SHERRY FENN,
CASE NO. 1:10-cv-01903-SMS
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Plaintiff,
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ORDER DISMISSING CASE FOR
FAILURE TO STATE A CLAIM
v.
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CIR, LAW OFFICES,
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Defendant.
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(Doc. 18)
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Defendant CIR, Law Offices moves for dismissal of Plaintiff’s Amended Complaint for
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failure to state a claim. F.R.Civ.P. §12(b)(6). Despite the District Court’s prior order dismissing
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Plaintiff’s claim with leave to amend due to its factual insufficiency, the amended complaint still
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alleges only threadbare claims and conclusory, unwarranted deductions of fact. Because
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Plaintiff’s factual allegations are insufficient to state a claim under any of the six statutory
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provisions that she alleges that Defendant violated, the Court grants Defendant’s motion to
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dismiss. F.R.Civ.P. 12(b)(6).
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I.
Procedural History
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On October 11, 2010, Plaintiff filed a complaint alleging violations of the Fair Debt
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Collection Practices Act (15 U.S.C. § 1692 et seq.) (FDCPA) and the Rosenthal Fair Debt
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Collection Practices Act (California Civil Code § 1788 et seq.) (the Rosenthal Act). On
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November 24, 2010, Defendant moved for the complaint’s dismissal for failure to state a claim.
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On March 8, 2011, the District Court dismissed the FDCPA claim with leave to amend and the
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Rosenthal Act claim with prejudice. In its opinion, the District Court clearly set forth the
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standards for sufficient complaints and explained, in detail, the shortcomings of the dismissed
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complaint.
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On March 28, 2011, Plaintiff filed her amended complaint, again alleging FDCPA claims.
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On April 15, 2011, both parties consented to the jurisdiction of a United States Magistrate Judge.
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On April 18, 2011, Defendant moved to dismiss the amended complaint pursuant to F.R.Civ.P.
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12(b)(6) .
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II.
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Factual Allegations of the Amended Complaint
Plaintiff alleges that she incurred a debt to a creditor for goods purchased primarily for
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family, household, or personal purposes. The creditor hired Defendant, a “debt collector” as
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defined in 15 U.S.C. § 1692a(6), to collect the debt from Plaintiff. Defendant called Plaintiff
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daily “with the intent to harass.” Various callers demanded payment, making settlement offers
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which changed daily. “Plaintiff does not recall the names or dates of the callers or calls, but the
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calls occurred from approximately mid through late 2010, but in any event within one year of the
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filing of the action.”
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Plaintiff alleges that Defendant discussed Plaintiff’s debt with her father. “Defendant sent
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papers to Plaintiff, insinuating a court action had been initiated.” Because the papers bore the
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wrong address, an illegible stamp, and had the court’s address crossed out, Plaintiff considered the
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papers to be suspect. No proof of service was ever filed. The lawsuit (Target Nat’l Bank v. Fenn,
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Stanislaus Superior Court No. 657041) was filed August 18, 2010, and dismissed October 13,
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2010.
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Defendant was rude and abusive to Plaintiff. When Plaintiff called to accept a $1400
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settlement offer, Defendant advised her that the offer had expired and that settlement then would
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be $1856. Plaintiff accepted the offer and paid $1856 in or about August 2010. Thereafter, on
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September 9, 2010, Defendant sent Plaintiff a settlement offer of $1590.95.
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Plaintiff contends that Defendant’s outrageous action caused Plaintiff humiliation, anger,
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anxiety, emotional distress, fear, frustration, and embarrassment.
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III.
Sufficiency of Complaint
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Federal Rule of Civil Procedure 12(b)(6) provides for a claim’s dismissal “if as a matter of
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law it is clear that no relief could be granted under any set of facts that could be proved consistent
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with the allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). In considering a motion to
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dismiss for failure to state a claim, the Court must accept as true the allegations of the complaint
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in question, construe the pleading in the light most favorable to the party opposing the motion,
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and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Rex Hospital Trustees, 425
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U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869
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(1969). A motion to dismiss for failure to state a claim should not be granted unless it appears
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beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle
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him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); see also Palmer v.
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Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981).
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At its most basic level, evaluating whether a complaint states a claim against particular
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defendants requires its analysis in light of applicable pleading standards. “Rule 8(a)’s simplified
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pleading standard applies to all civil actions, with limited exceptions,” none of which applies here.
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Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to Rule 8(a), a complaint must
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contain “a short and plain statement of the claim showing that the pleader is entitled to relief. . . .”
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Fed. R. Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the
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plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of
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the cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
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129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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“Plaintiff must set forth sufficient factual matter accepted as true, to ‘state a claim that is plausible
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on its face.’” Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. The Court should not
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accept as true allegations that are merely conclusory, unwarranted deductions of fact, or
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unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988, amended on
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denial of rehearing, 275 F.3d (9th Cir. 2001). While factual allegations are accepted as true, legal
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conclusions are not. Iqbal, 129 S.Ct. at 1949.
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Although accepted as true, “[f]actual allegations must be [sufficient] to raise a right to
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relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). A plaintiff
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must set forth “the grounds of his entitlement to relief,” which “requires more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action.” Id. at 555-56
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(internal quotation marks and citations omitted). To adequately state a claim against a defendant,
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a plaintiff must set forth the legal and factual basis for his claim. Id. In this motion, Defendant
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contends that Plaintiff has failed to allege facts sufficient to state a plausible FDCPA claim.
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IV.
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Discussion
“Congress enacted the FDCPA to protect consumers from ‘improper conduct’ and
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illegitimate collection practices “without imposing unnecessary restrictions on ethical debt
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collectors.’” Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1169-70 (9th Cir.
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2006), quoting S.Rep. No. 95-382, at 1 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696,
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1698-99. To prevail on an FDCPA claim, a plaintiff must prove that (1) he or she was the object
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of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined
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by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the
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FDCPA. McCorriston v. L.W.T., Inc., 536 F.Supp.2d 1268, 1273 (M.D.Fla. 2008). The amended
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complaint fails to allege facts to support any of these three elements, simply setting forth legal
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conclusions that echo the statutory language.
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For example, in paragraphs 8 and 9 of the amended complaint, Plaintiff alleges that she
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incurred a financial obligation to a creditor for services that “were primarily for family, personal
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or household purposes” and that met the definition of “debt” in 15 U.S.C. § 1692a(5). These
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allegations are legal conclusions, not facts. Factual allegations would set forth information
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supporting the legal standard, that is, that Plaintiff became indebted to Target National Bank in
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the amount of $2651.58 for whatever specific goods or services she purchased there.1 Those
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specific facts would enable the jury to conclude that Plaintiff had incurred a consumer debt of the
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type addressed by FDCPA. Similarly, the amended complaint pleads the legal conclusion that
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Specific factual information is drawn from Defendant’s factual account.
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Defendant is a debt collector within the statutory definition (15 U.S.C. § 1692a(6)) but does not
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allege specific facts supporting that conclusion.
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Finally, the amended complaint recites legal conclusions that Defendant violated various
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provisions of the FDCPA: 15 U.S.C. §§ 1692b(1), 1692b(2), 1692b(3), 1692d(2), 1692d(5), and
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1692e(10).
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A.
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These three sections address a debt collector’s communication with a third party to secure
15 U.S.C. §§ 1692b(1), (2), and (3)
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location information regarding the consumer. In such communications, the debt collector must
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identify him- or herself, state that he or she is confirming or correcting location information
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concerning the consumer, and may not identify his or her employer unless expressly requested by
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the third party. 15 U.S.C. § 1692b(1). He or she may not state that the consumer owes any debt.
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15 U.S.C. § 1692b(2). Nor may the debt collector communicate with any third party more than
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once unless the third party requests that the debt collector do so or the debt collector believes that
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the earlier response was erroneous or incomplete and that the third party now has complete or
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correct information. 15 U.S.C. § 1692b(3). The amended complaint alleges that Defendant’s
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contacting her father violated these three statutory provisions in the words of the statute itself. It
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includes no specific factual allegations. The absence of any factual allegations whatsoever is not
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sufficient to raise a right to relief above the speculative level. See Twombly, 550 U.S. at 555. The
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amended complaint fails to state a claim for violation of these statutory sections.
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B.
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This statute prohibits a debt collector’s harassing or abusing a consumer. “A debt
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collector may not engage in any conduct the natural consequence of which is to harass, oppress, or
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abuse any person in connection with the collection of the debt. 15 U.S.C. §1692d. Among the
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prohibited conduct is the use of obscene or profane language which has the natural consequence
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of abusing the hearer or reader. 15 U.S.C. § 1692d(2). Also prohibited is causing a telephone to
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ring or engaging any person in conversation repeatedly or continuously with the intent to annoy,
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abuse, or harass. 15 U.S.C. § 1692d(5). Again, the amended complaint presents its allegations in
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the words of the statutes themselves.
15 U.S.C. § 1692d(2) and (5)
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The complaint generally alleges that Defendant called Plaintiff every day with the intent to
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harass from “about mid 2010 through late 2010.” The complaint further alleges that various
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callers from Plaintiff called Plaintiff and demanded payment in full, then made settlement offers
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which changed daily. “Plaintiff does not recall the names or dates of the callers or calls, but the
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calls occurred approximately mid through late 2010, but in any event within the one year [sic] of
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the filing of the action.”
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As the Court previously explained in its dismissal of Plaintiff’s original complaint, these
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facts are insufficient to allege the violations since they do not provide sufficient information
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regarding when the conversations occurred, who contacted Plaintiff, what was discussed or
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disclosed, and in what manner Defendant was rude or abusive. The vague allegations of the
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amended complaint are insufficient to give Defendant fair notice of what Plaintiff’s claim is and
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the grounds upon which it rests. See Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555;
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Swierkiewicz, 534 U.S. at 512.
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The complaint also alleges that Defendant was rude and abusive in telling Plaintiff, when
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she called to respond to a settlement offer of $1400 that the prior settlement offer had been
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withdrawn and that Defendant would then settle for $1856. Since the interest on Plaintiff’s debt
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accrued as it remained unpaid and collection costs increased, particularly once Defendant was
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required to prepare and file its lawsuit, increasing settlement demands are not surprising. That
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Defendant’s increased settlement offer was, of itself, harassing or abusive is not a reasonable
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inference. See Sprewell, 266 F.3d at 988.
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Finally, the amended complaint alleges harassment in a settlement offer received after
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Plaintiff had reached a settlement with Defendant and paid the amount due by cashier’s check.
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Since no debt collection violative of the FDCPA can exist once the debt has been paid, this
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allegation cannot state a cause of action under 15 U.S.C. § 1692d(5). Gorbaty v. Portfolio
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Recovery Associates, LLC, 355 Fed.Appx. 580, 581 (3d Cir. 2009), cert. denied, 130 S.Ct. 2116
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(2010).
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The amended complaint fails to state a claim for violation of these statutory sections.
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C.
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“ A debt collector may not use any false, deceptive, or misleading representation or means
15 U.S.C. § 1692e(10)
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in connection with the collection of any debt.” 15 U.S.C. § 1692e. One example of conduct that
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violates this statute is the use of any false representation or deceptive means to collect or attempt
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to collect a debt or to obtain information about a consumer. 15 U.S.C. § 1692e(10). The
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amended complaint alleges that Defendant violated this statute by falsely insinuating that court
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action had been initiated in Target National Bank v. Fenn, Sherry; Stanislaus County Superior
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Court No. 657041, filed August 18, 2010. Plaintiff denies that she was ever served with the
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complaint. The complaint alleges that the suit was filed, but no proof of service was ever filed,
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and the case was later dismissed.
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The amended complaint itself alleges that Defendant filed a complaint against Plaintiff.
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That Defendant never filed the proof of service and dismissed the case after Plaintiff’s settling
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with Defendant does not logically suggest that Defendant falsely represented that it had sued
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Plaintiff. The amended complaint fails to state a claim for violation of these statutory sections.
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III.
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Conclusion and Recommendation
Because Plaintiff’s complaint fails to state a cause of action against Defendant, Plaintiff’s
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amended complaint is hereby DISMISSED with prejudice. The Clerk of Court is directed to enter
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judgment dismissing this action with prejudice.
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IT IS SO ORDERED.
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Dated:
icido3
June 28, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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