Smith v. Capital One Financial Corporation et al
Filing
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ORDER by Judge Hamilton granting in part and denying in part 106 Motion for Judgment on the Pleadings (pjhlc1, COURT STAFF) (Filed on 8/1/2012) (Additional attachment(s) added on 8/1/2012: # 1 Certificate/Proof of Service) (nah, COURT STAFF).
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ROSALIND SMITH,
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Plaintiff,
No. C 11-3425 PJH
v.
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For the Northern District of California
United States District Court
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CAPITAL ONE FINANCIAL
CORPORATION, et al.,
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ORDER GRANTING MOTION FOR
JUDGMENT ON THE PLEADINGS
IN PART AND DENYING IT IN PART
Defendants.
_______________________________/
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Before the court is the motion of defendant Midland Credit Management, Inc.
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(“Midland”) for judgment on the pleadings. Plaintiff Rosalind Smith filed no opposition to
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the motion within the time allowed under Civil Local Rule 7-3. Having read Midland’s
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papers and carefully considered its arguments and the relevant legal authority, and good
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cause appearing, the court hereby GRANTS the motion in part and DENIES it in part.
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A motion for judgment on the pleadings pursuant to Rule 12(c) “challenges the legal
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sufficiency of the opposing party’s pleadings.” William Schwarzer et al, Federal Civil
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Procedure Before Trial ¶ 9:316 (2010); Fed. R. Civ. P 12(c). The legal standards governing
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Rules 12(c) and 12(b)(6) are “functionally identical.” Dworkin v. Hustler Magazine, Inc., 867
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F.2d 1188, 1192 (9th Cir. 1989), as both permit challenges directed at the legal sufficiency
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of the parties’ allegations.
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A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims
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alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).
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Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen.
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Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for
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failure to state a claim, a complaint generally must satisfy only the minimal notice pleading
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requirements of Federal Rule of Civil Procedure 8.
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Rule 8(a)(2) requires only that the complaint include a “short and plain statement of
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the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specific
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facts are unnecessary – the statement need only give the defendant “fair notice of the claim
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and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
conclusory statements, not supported by actual factual allegations, need not be accepted.
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For the Northern District of California
All allegations of material fact are taken as true. Id. at 94. However, legally
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United States District Court
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See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A plaintiff's obligation to provide the
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grounds of his entitlement to relief “requires more than labels and conclusions, and a
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formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
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555 (citations and quotations omitted). Rather, the allegations in the complaint “must be
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enough to raise a right to relief above the speculative level.” Id. A motion to dismiss
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should be granted if the complaint does not proffer enough facts to state a claim for relief
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that is plausible on its face. See id. at 558-59.
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A pleading filed by a pro se plaintiff must be liberally construed. Balistreri v. Pacifica
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Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Pro se status, however, does not excuse a
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litigant from complying with the requirement of alleging facts, not conclusions, in his or her
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pleadings. See Brazil v. United States Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
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In the event dismissal is warranted, it is generally without prejudice, unless it is clear the
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complaint cannot be saved by any amendment. See Sparling v. Daou, 411 F.3d 1006,
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1013 (9th Cir. 2005).
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The background of the case is as set forth in the May 11, 2011 Order granting the
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motions of defendants Capital One Bank (USA), N.A., HSBC Card Services, Inc., and
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Merrick Bank Corporation to dismiss the claims asserted against them in the first amended
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complaint (“FAC”).
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Plaintiff asserts four causes of action against Midland in the FAC – violation of the
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Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.; invasion of privacy
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by intrusion upon seclusion; breach of contract; and negligence. Midland seeks judgment
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on the pleadings as to each of these claims, arguing that plaintiff has failed to allege facts
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sufficient to state a claim.
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In the January 27, 2012 order dismissing the original complaint, the court dismissed
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the entire complaint for failure to state a claim “because it fails to allege facts supporting
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each cause of action as to each defendant.” January 27, 2012 Order at 7. With certain
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exceptions specified in the order, the dismissal was with leave to amend “to correct that
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For the Northern District of California
United States District Court
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deficiency.”
In the FAC, plaintiff concedes that she incurred credit card debt, and that the debt
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was “thereafter . . . consigned, placed or otherwise transferred to Defendants Collection
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Companies et al for collection from [p]laintiff.” FAC ¶ 10. The court interprets the reference
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to “Collection Companies” to be a reference to Midland.
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The facts pled specifically against Midland are as follows: Plaintiff asserts that the
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customer service representatives of Midland and two credit card company defendants (now
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dismissed from the case) “made harassing and continuous phone call[s], causing
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[p]laintiff’s cellular phone to ring from 6am to 10pm despite communications informing
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representatives of [Midland] of the dispute and written correspondence only request [sic].”
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FAC ¶ 11. Plaintiff asserts further that on December 15, 2009, at approximately 7:00 a.m.
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Eastern Standard Time, Midland contacted her “in an attempt to collect this debt from
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[p]laintiff which was a communication in an attempt to collect a debt as that term is defined
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by 15 U.S.C. § 1692a(2).” FAC ¶ 12.
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Finally, plaintiff alleges that Midland and the two credit card company defendants
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contacted her multiple times per day, “many times one after another within 10 mins causing
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extreme mental distress and duress, often worsening the consumer’s ability to recover from
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her wartime injuries and Traumatic Brain Injury; all in an effort to collect this debt by
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repeatedly engaging [p]laintiff in phone calls and verbally abusing [p]laintiff was a violation
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of numerous and mutiple provisions of the FDCPA . . . .” FAC ¶ 13. She also concedes,
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however, that Midland’s customer service representatives actually called her only twelve
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times. FAC ¶ 27. Nevertheless, she asserts that these calls were highly offensive because
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the Midland representatives “cursed [her] over the phone,” calling her a “dead beat” and
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telling her she should get a job. Id.
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Midland first argues that the FAC does not state a claim under the FDCPA. With
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regard to the allegation regarding the 7:00 a.m. EST call, Midland contends that this does
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not state a claim, as plaintiff resides in Washington State, and does not allege that she was
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located in the Eastern time zone. The FDCPA prohibits a debt collector from knowingly
calling a debtor prior to 8:00 a.m. “local time at the consumer’s location.” 15 U.S.C.
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For the Northern District of California
United States District Court
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§ 1692c(a)(1). Midland contends that plaintiff has failed to allege facts sufficient to show
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that Midland called her before 8:00 a.m. local time at her location.
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With regard to the allegation that Midland called her 12 times, Midland argues that
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this volume of calls is “minimal,” and insufficient to state a claim under the FDCPA. With
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regard to the allegation that the Midland representatives “cursed” and insulted her, Midland
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argues, essentially that plaintiff has not alleged sufficient facts to state a claim for abusive
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conduct under the FDCPA.
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The court finds that the motion must be DENIED as to this cause of action. If, as
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plaintiff alleges, Midland called her at 7:00 a.m. Eastern Standard Time, such a call was
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made prior to 8:00 a.m., regardless of where in the United States plaintiff was located at the
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time. Thus, plaintiff has stated a claim for violation of the FDCPA. In light of this ruling, the
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court does not decide whether the remaining allegations, standing alone, would suffice to
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state a claim under the FDCPA.
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Second, Midland argues that plaintiff fails to state a claim for invasion of privacy,
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because the facts alleged against it are not sufficiently egregious. An action for invasion of
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privacy by intrusion upon seclusion has two elements – (1) an intrusion into a private place,
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conversation, or matter, (2) in a manner highly offensive to a reasonable person. Taus v.
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Loftus, 40 Cal. 4th 683, 725 (2007); see also Deteresa v. American Broadcasting Cos.,
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Inc., 121 F.3d 460, 465 (9th Cir. 1997). The intrusion must be intentional. Id. In addition,
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the plaintiff must have had an objectively reasonable expectation of seclusion or solitude in
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the place, conversation or data source.” Shulman v. Group W Prods., Inc., 18 Cal. 4th 200,
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232 (1998).
Here, because plaintiff concedes that she incurred a financial obligation, she
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“impliedly consent[ed] for the creditor to take reasonable steps to pursue payment even
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though it may result in actual, though not actionable, invasion of privacy.” Bundren v.
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Superior Court, 145 Cal. App. 3d 784, 789 (1983). “[D]ebtors’ tender sensibilities are
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protected only from oppressive, outrageous conduct.” Id.
While courts have, on occasion, allowed debtors to pursue claims for invasion of
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For the Northern District of California
United States District Court
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privacy against debt collectors, such claims have been based on facts that were truly
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egregious. For example, in Robinson v. Managed Accounts Receivables Corp., 654
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F.Supp. 2d 1051 (C.D. Cal. 2009), the court allowed an invasion of privacy claim to
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proceed where the plaintiff alleged that the debt collector had repeatedly called her
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workplace and spoke to her co-workers, even after being told not to call her at work. See
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id. at 1056. In Fausto v. Credigy Servs. Corp., 598 F.Supp. 2d 1049 (N.D. Cal. 2009), the
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court found that the plaintiffs had raised triable issues as to an invasion of privacy claim,
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based on allegations that the debt collector’s employees had made more than 90 calls to
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the debtors’ home; that the content of the calls had been harassing; and that the
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employees had failed to identify themselves when calling, and had allowed the phone to
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ring repeatedly and called back immediately after the debtors hung up the phone. Id. at
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1056.
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Here, plaintiff alleges that the Midland representatives called her at home twelve
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times over the period of time that Midland was attempting to collect the debt. Courts have
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held that repeated and continuous calls made in an attempt to collect a debt give rise to a
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claim of intrusion upon seclusion, see, e.g., id. (and cases cited therein), but plaintiff does
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not allege facts showing that Midland made repeated harassing phone calls that were so
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numerous as to constitute an invasion of privacy.
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Similarly, while she asserts that the Midland representative “cursed” or insulted her
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on one occasion, she does not allege facts showing any repeated pattern of harassment
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sufficient to state a claim of invasion of privacy. Nor does she allege that Midland called
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her at work after being told not to, or that the Midland representatives refused to identify
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themselves. Accordingly, the court finds that the FAC fails to state a claim of invasion of
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privacy against Midland.
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Third, Midland argues that plaintiff fails to state a claim for breach of contract. To
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state a claim for breach of contract, a plaintiff must allege facts showing (1) the existence of
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a contract, (2) that the plaintiff performed his duties under the contract or was excused from
doing so, (3) that the defendant breached the contract, and (4) that the plaintiff suffered
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For the Northern District of California
United States District Court
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damages as a result of that breach. First Comm’l Mortgage Co. v. Reece, 89 Cal. App. 4th
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731, 745 (2001).
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Here, plaintiff has not pled facts showing the existence of a contract between herself
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and Midland, has not alleged that she performed her duties under said contract, has not
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stated facts showing that Midland breached the contract, and has not alleged that she was
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damaged thereby. Accordingly, the court finds that the breach of contract cause of action
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must be dismissed for failure to state a claim against Midland.
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Fourth, Midland contends that plaintiff fails to state a claim for negligence. To state
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a claim for negligence, a plaintiff must allege (1) a legal duty of care owed by the defendant
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to the plaintiff, (2) breach of that duty by the defendant, (3) legal and proximate causation,
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and (4) damages resulting from the defendant’s breach. Century Surety Co. v. Crosby Ins.,
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Inc., 124 Cal. App. 4th 116, 127 (2004).
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In the FAC, plaintiff alleges that “defendants” owed her “a duty of care to properly
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conduct investigation of debt disputes” and “to cease and desist on collecting any debt until
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the dispute is properly resolved and to report debt as such to the Credit Bureaus.” FAC
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¶ 43. She asserts further that “defendants” all “continued to ignore Plaintiff’s written
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correspondence and attempted to collect an alleged debt in dispute.” Id. She claims that
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“defendants” breached their respective duties of care “by failing to disclose to in [sic]
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consumer credit file the true nature of the investigation and dispute.” Id. at ¶ 45.
Plaintiff has pled no facts showing that Midland owed a duty of care to her, or that
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she sustained any damages as a result of a breach of that duty. Indeed, while plaintiff
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repeatedly refers in this cause of action to the credit card defendants (Capital One, HSBC,
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and Merrick) by name, and to the “Consumer Credit Bureaus,” she does not mention
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Midland by name, or even by the designation “Debt Collector,” anywhere in the allegations.
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Accordingly, the court finds that the negligence cause of action fails to state a claim against
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Midland.
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In accordance with the foregoing, Midland’s motion is GRANTED as to the causes of
action for invasion of privacy, breach of contract, and negligence. In light of plaintiff’s
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For the Northern District of California
United States District Court
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failure, following the January 27, 2012 dismissal of the original complaint, to amend the
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complaint to “allege facts supporting each cause of action as to each defendant” as
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directed by the court, the court finds that further amendment of these three causes of action
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would be futile. The motion to dismiss the FDCPA claim against Midland is DENIED.
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The August 8, 2012 hearing date is VACATED.
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IT IS SO ORDERED.
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Dated: August 1, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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