Melendez v. Cach, LLC et al, No. 4:2011cv05456 - Document 190 (N.D. Cal. 2012)
Court Description: ORDER GRANTING MOTIONS TO DISMISS FDCPA CLAIM AND REMANDING ACTION TO THE SUPERIOR COURT FOR THE COUNTY OF SAN FRANCISCO. Signed by Judge Claudia Wilken on 10/15/2012. (ndr, COURT STAFF) (Filed on 10/15/2012)
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Melendez v. Cach, LLC et al Doc. 190 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 LIGIA MELENDEZ, 5 6 7 8 9 Plaintiff, v. CACH, LLC, et al., Defendants. No. C 11-5456 CW ORDER GRANTING MOTIONS TO DISMISS FDCPA CLAIM AND REMANDING ACTION TO THE SUPERIOR COURT FOR THE COUNTY OF SAN FRANCISCO ________________________________/ United States District Court For the Northern District of California 10 11 Defendant CACH, LLC removed this action alleging violations 12 of federal and state statutes governing fair debt collection 13 practices and other claims under state law. 14 Melendez brings this action asserting claims under the Fair Debt 15 Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and 16 under state law against the following defendants: CACH; Collect 17 America Ltd, a.k.a. Square Two Financial (SquareTwo); Law Offices 18 of Alan M. Laskin (Laskin Law Offices) the Laskin Law Offices; 19 Defendants Alan M. Laskin, Jason A. Ewing, Natasha Langenfeld (the 20 Attorney Defendants); Lorraine Kunkle; and Mark Tran, a.k.a. Hoang 21 Thanh Tran. 22 motion of Laskin Law Offices to Dismiss Count One of the Second 23 Amended Complaint (2AC) alleging a claim under the FDCPA (Docket 24 No. 83); the motion of the Attorney Defendants Laskin, Ewing and 25 Langenfeld to dismiss the FDCPA Claim (Docket No. 107); the Anti- 26 SLAPP motion of the Attorney Defendants to strike the state law 27 claims (Docket No. 108); the Anti-SLAPP motion of the Laskin Law 28 Offices to strike the state law claims (Docket No. 114); CACH's Plaintiff Ligia Before the Court are the following motions: the Dockets.Justia.com 1 motion to dismiss the 2AC for failure to state a claim (Docket No. 2 81); SquareTwo’s motion to dismiss the 2AC for failure to state a 3 claim (Docket No. 127); Kunkle's motion to dismiss the 2AC for 4 lack of personal jurisdiction (Docket No. 116) and Plaintiff's 5 counter-motion for leave to conduct jurisdictional discovery 6 (Docket No. 150); and Tran's motion to dismiss for lack of 7 personal jurisdiction (Docket No. 117) and Plaintiff's counter- 8 motion for leave to conduct jurisdictional discovery (Docket No. 9 152). The Court vacated the hearing on the motions and took the United States District Court For the Northern District of California 10 motions under submission. 11 authority and the papers filed by the parties, the Court GRANTS 12 the motions to dismiss the sole federal claim under the FDCPA and 13 remands the action to the Superior Court for the County of San 14 Francisco. Having considered the relevant legal 15 BACKGROUND 16 The 2AC makes the following factual allegations which are 17 taken as true on the motions to dismiss. 18 A. 19 Collection Action Against Plaintiff On February 14, 2008, CACH filed a complaint against 20 Plaintiff entitled CACH v. Ligia Melendez, in the Superior Court 21 of California for the County of San Francisco, Case No. CGC-08- 22 472197. 23 and Laskin Law Offices appeared as counsel of record for CACH in 24 that collection action against Plaintiff. 25 complaint against Plaintiff, CACH alleged that Plaintiff was 26 indebted to it by and through an account number that Defendants 27 claimed Plaintiff had opened at the Providian National Bank on or 28 about October 8, 2002: 2AC ¶ 29 and Ex. A. Defendants Laskin, Ewing, Langenfeld 2 2AC, Ex. A. In its 1 Plaintiff: CACH, LLC 2 Alleges that on or about: 10/08/02 3 A written agreement was made between: PROVIDIAN BANK AND LIGIA MELENDEZ. 4 The essential terms of the agreement are as follows: THE DEFENDANT(S) LIGIA MELENDEZ AND DOES 1 TO 10, AND EACH OF THEM, ENTERED INTO A CONTRACT, ACCOUNT NUMBER 4559905000497229, GENERATING A BALANCE OF $8,006.73, WITH ACCRUING INTEREST OF 30.31% PER ANNUM FROM 04/28/06. 5 6 7 8 2AC ¶ 31 and Ex. A ¶ BC-1. 9 representation by CACH was "a false, inaccurate and misleading Plaintiff alleges that this United States District Court For the Northern District of California 10 representation in connection with the collection of a debt which 11 Plaintiff relied upon to her detriment." 12 alleges that in 2002, she did not enter into an agreement with the 13 Providian National Bank for the account number 4559905000497229 14 and that on the date of 10/08/02 the account number 15 4559905000497229 did not exist at the Providian Bank. 16 B. 17 2AC ¶ 32. Plaintiff 2AC ¶ 32. Kunkle Affidavit CACH’s complaint against Plaintiff attached and incorporated 18 by reference an Affidavit Form purportedly signed by "Martha 19 Kunkle, Designated Agent" (the Kunkle Affidavit) which stated: 20 I, being duly sworn, hereby state and attest that I am the designated agent of Providian National Bank ("Providian"), a National Banking Association, one of the sellers in that certain Purchase and Sale Agreement by and among Providian National Bank, Providian Bank and CACH, LLC ("Purchaser"), dated as of 5/24/2006 (the ["]Agreement"). 21 22 23 24 25 26 27 The account billing statement of LIGIA MELENDEZ, Account #4559905000497229, the cardholder, to the best of my knowledge, reflects a true and correct accounting of the cardholder’s credit card account; that as of 5/24/2006, the sum of $8,006.73 was due to Providian or any of its affiliates, and that no part of this sum has been paid or satisfied. 28 3 1 2 In accordance with the Agreement, Providian sold, assigned and conveyed to Purchaser all right, title and interest in and to the Account and its unpaid balance. 3 Executed on April 4, 2007, at Arlington, Texas. 4 /s/ Martha Kunkle/LD Martha Kunkle, Designated Agent 5 Sworn to before me this 4th day of April, 2007. 6 /s/ Hoang Thanh Tran Notary Public 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2AC ¶ 34 and Ex. B. Plaintiff alleges that the representations made in the Kunkle Affidavit were false, deceptive and misleading on the following grounds: a. On the date of 05/25/2006 and April 4, 2007 the Providian National Bank did not exist, as in October of 2005 the Providian National Bank had ceased to be a viable entity. As such, the Providian National Bank could not have sold assigned and conveyed to CACH all right, title and interest in any account on that date; b. On the date of 05/25/2006 there could not have been any form of a Purchase and Sale Agreement by and among Providian National Bank, and CACH, LLC, as the Providian National Bank was not an entity in existence at that time and as such CACH could not have entered into any such agreement with Providian on that date and as such had no standing to bring said action against consumer; c. On the date of April 4, 2007 "Martha Kunkle," or anyone else, could not have been duly sworn to state and attest that she was the designated agent of the Providian National Bank, a National Banking Association, as on that date there was no Providian National Bank and as such there could not have been a designated agents of an entity that was not in existence; d. On the date of 5/24/2006 there could not have been any amount due to the Providian National Bank as it did not exist on that date; e. The Affidavit contains the pseudonym /s/ Martha Kunkle/LD, which was false and the signature a forgery; 28 4 1 f. Defendant Tran then placed his notary seal upon the Affidavit knowing that the person who had signed the Affidavit was not "Martha Kunkle" but another individual who had forged that name upon the Affidavit. 2 3 4 2AC ¶ 35. 5 Plaintiff further alleges that Defendants had knowledge that 6 the Kunkle Affidavit had been exposed as a falsified document in 7 other litigation, namely in a class action filed in the United 8 States District Court for the District Of Montana, Great Falls 9 Division, Jeanie Cole v. Portfolio Recovery Associates, LLC et al, United States District Court For the Northern District of California 10 Case No. CV-08-036-GF-RKS. 11 Cole exposed similar "Martha Kunkle Affidavits" as false and 12 deceptive in 2007, and thereafter brought a class action lawsuit 13 regarding the use of robosigned "Martha Kunkle Affidavits" against 14 consumers throughout the United States. 15 alleges that CACH was bound to a settlement agreement entered in 16 Cole. 17 plaintiffs and defendants CACV and CACH, filed in Cole v. 18 Portfolio Recovery Associates, No. CV 08-036 (D. Mont. Nov. 13, 19 2009)). 20 demonstrate that CACV of Colorado, LLC was added as a defendant in 21 that lawsuit in the Second Amended Complaint filed March 9, 2009, 22 and that a settlement agreement entered by Thomas Good as the 23 authorized agent of CACV and CACH was filed in that action on 24 November 13, 2009. 25 filed a Second Amended Complaint in [Cole;] CACV was added as a 26 defendant therein."). 27 Complaint filed May 21, 2008 and Second Amended Complaint filed 2AC ¶ 64. In that action, plaintiff 2AC ¶ 64. Plaintiff 2AC ¶ 65 and Ex. W (excerpt of Settlement Agreement between The pleadings and papers filed in the Cole litigation See 2AC, Ex. W ("On March 9, 2009, Plaintiffs See also CACH RJN Exs. 13 and 14 (Cole 28 5 1 March 9, 2009) and Ex. 15 (Cole Settlement Agreement).1 2 further alleges that, despite the knowledge that consumers in 3 California were affected by the Martha Kunkle Affidavits, CACH 4 continued to prosecute its collection action against Plaintiff in 5 reliance on the Kunkle Affidavit. 6 C. 7 Plaintiff 2AC ¶ 65. Proceedings in CACH Action On or about March 02, 2008, Defendants purported to serve the 8 summons and complaint in the CACH action on a "Ligia Melendez" 9 whom they claimed to have found at 10:00 p.m. in San Francisco, United States District Court For the Northern District of California 10 California. 11 "Ligia Melendez" that Defendants purportedly served was not she. 12 2AC ¶ 43. 13 the CACH action, which CACH opposed. 14 2008, the Superior Court denied Plaintiff's motion to quash on the 15 ground that she had not offered sufficient evidence to rebut the 16 presumption raised by the declaration of the registered process 17 server that he personally served her. 18 filed a Motion to Set Aside the Default Judgment which the 19 Superior Court granted on July 10, 2008. 20 2AC ¶ 43 and Ex. D. Plaintiff asserts that the Plaintiff filed a motion to quash service of summons in 2AC ¶¶ 56-58. 2AC ¶ 60. On May 22, Plaintiff later 2AC ¶¶ 43, 60. Plaintiff filed her answer to the CACH complaint on August 21 11, 2008. 22 sought production of documents related to the Providian account 2AC ¶ 61 n.1 and Ex. N. Plaintiff alleges that she 23 1 24 25 26 27 28 The Court takes judicial notice pursuant to Federal Rule of Evidence 201(b)(2) of the pleadings and CACH settlement agreement filed in the Cole litigation as matters that are alleged in the 2AC and that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Because the Court declines to take judicial notice of other exhibits offered by Defendants, Plaintiff's objections to those exhibits are overruled as moot. 6 1 that had been allegedly purchased by CACH, such as credit card 2 statements and the contract of assignment between Providian 3 National Bank and CACH, and that CACH did not produce those 4 documents. 5 have specific credit card statements which it refused to produce 6 to her during the litigation, despite her repeated and continuous 7 demands for them, which specifically set forth that in the year 8 2002 Plaintiff had not entered into a contract with the Providian 9 National Bank for account number 4559905000497229. United States District Court For the Northern District of California 10 2AC ¶ 61. Plaintiff alleges that CACH did in fact 2AC ¶ 62. An arbitration was held in the CACH action on February 9, 11 2009. 12 Plaintiff, 2AC ¶ 71, and on March 5, 2009, Plaintiff requested a 13 trial de novo. 14 The arbitrator filed an award in favor of CACH against 2AC ¶ 73. In preparation for trial, Plaintiff retained trial counsel 15 and served motions in limine to exclude evidence that CACH failed 16 to provide in the course of litigation. 17 26, 2009, the parties appeared before a Superior Court Judge Pro 18 Tem to attempt to resolve the matter before proceeding to trial. 19 2AC ¶ 77. 20 Plaintiff, of whom Plaintiff had no notice. 21 contends that after she stated her intentions to proceed to trial, 22 these witnesses "disappeared from the courthouse and were never 23 seen again." 24 dismiss the action against Plaintiff without prejudice so that it 25 could refile the matter at a later date. 26 court denied CACH's requests for dismissal without prejudice and 27 admonished CACH that the matter could only be dismissed with 2AC ¶¶ 74-75. On October CACH identified two witnesses to testify against 2AC ¶ 78. 2AC ¶ 77. Plaintiff CACH then sought leave of court to 28 7 2AC ¶ 79. The state 1 prejudice. 2 return the next day for trial. 3 2AC ¶ 79. The presiding judge ordered the parties to 2AC ¶ 80. On October 27, 2009, the parties appeared before the presiding judge and CACH renewed its motion to dismiss its lawsuit 5 without prejudice, which the presiding judge denied. 6 CACH renewed its motion to dismiss without prejudice before the 7 trial judge who also denied the motion to dismiss and took 8 Plaintiff's motions in limine under submission. 9 While the court was in recess, CACH filed a dismissal without 10 United States District Court For the Northern District of California 4 prejudice in the clerk of the court's office and informed the 11 trial judge that the court no longer had jurisdiction over the 12 matter. 13 2AC ¶ 81. 2AC ¶¶ 84, 85. 2AC ¶ 86. Plaintiff alleges that, after the CACH action was dismissed, 14 "Defendants began communicating to Plaintiff that they would re- 15 file and re-prosecute the matter against her if she did not pay 16 them their demand." 17 after CACH dismissed its complaint against Plaintiff, CACH filed a 18 motion for sanctions against Plaintiff and her counsel, noticed 19 for hearing on November 19, 2009. 20 took the matter off calendar after Plaintiff filed an opposition 21 to the motion for sanctions. 22 D. 23 2AC ¶ 87. On November 5, 2009, nine days 2AC ¶ 88. The superior court 2AC ¶ 88. Procedural History of the Instant Action Plaintiff filed her original complaint naming Defendants, as 24 well as Washington Mutual and Providian National Bank, in San 25 Francisco Superior Court on October 25, 2010. 26 2011, the complaint was removed to federal court by defendant 27 Federal Deposit Insurance Corporation (FDIC), as receiver for 28 Washington Mutual Bank. On February 10, See Melendez v. CACH, LLC et al., Case 8 1 No. 11-00615 SC (N.D. Cal.), Docket No. 1. 2 amended complaint on February 18, 2011, as corrected on February 3 19, 2011, against CACH; SquareTwo; Laskin Law Offices; Attorney 4 Defendants Laskin, Ewing and Natasha Lagenfeld [sic]; Tran; 5 Kunkle; Washington Mutual, a.k.a. FDIC; J.P. Morgan Chase & Co., 6 a.k.a. Chase Bank USA, N.A., J.P. Morgan Chase Bank, N.A.; and 7 Providian National Bank. 8 issued but Plaintiff did not file any certificates of service in 9 that action. United States District Court For the Northern District of California 10 Plaintiff filed an Id., Docket No. 8. Summonses were See id., Docket No. 9. Pursuant to stipulation entered by Plaintiff and the FDIC, 11 the district court dismissed the claim against the FDIC and 12 remanded the case to San Francisco Superior Court on March 14, 13 2011. Case No. 11-00615 SC, Docket Nos. 17, 18. 14 On June 21, 2011, Plaintiff filed an amended complaint, 15 styled "First Amended Complaint," in San Francisco Superior Court, 16 naming as defendants CACH, Laskin Law Offices, Kunkle and Tran. 17 This complaint was removed to federal court by CACH on November 9, 18 2011, based on the Court's original jurisdiction over Plaintiff's 19 claims under the FDCPA and the Racketeer Influenced Corrupt 20 Organization Act (RICO), 18 U.S.C. §§ 1961-68.2 21 ¶ 5 ("Plaintiff's claims for (1) Violation of the Racketeer 22 Influenced Corrupt Organization Act ('RICO'), 18 U.S.C. § 1961- 23 1968 and (2) Violation of the Fair Debt Collection Practices Act 24 ('FDCPA') [15] U.S.C. § 1692 et seq., are founded on a 'claim or Notice of Removal 25 26 27 28 2 In the 2AC, filed May 16, 2012, Plaintiff withdrew her cause of action for a RICO violation. The only federal cause of action alleged in the operative complaint is brought under the FDCPA. 9 1 right arising under the Constitution, treaties or laws of the 2 United States.'"). 3 later withdrew by stipulation. 4 held an initial case management on February 23, 2012, summonses 5 were issued as to Defendants Kunkle and Tran. 6 Plaintiff subsequently filed a motion for leave to amend the 7 complaint on April 16, 2012. 8 and the 2AC was deemed filed on May 16, 2012. 9 78. United States District Court For the Northern District of California 10 Plaintiff filed a motion to remand which she Docket No. 32. After the Court Docket No. 31. The Court granted leave to amend, Docket Nos. 76 and The operative complaint alleges the following claims against 11 Defendants: (1) violation of the FDCPA against all Defendants 12 except Kunkle and Tran; (2) violation of the Robbins-Rosenthal 13 Fair Debt Collection Practices Act (Rosenthal Act), Cal. Civ. Code 14 § 1788 et seq., against all Defendants except Laskin, Ewing, 15 Langenfeld, Kunkle and Tran; (3) malicious prosecution; (4) abuse 16 of process; (5) intentional infliction of emotional distress; 17 (6) negligent infliction of emotional distress; (7) concealment; 18 (8) fraud; (9) fraud and deceit based on negligent 19 misrepresentation; (10) intrusion upon seclusion; (11) negligence; 20 (12) negligent training and supervision; (13) breach of official 21 duty by a notary public against Tran; and (14) conspiracy. 22 Laskin Law Offices and the Attorney Defendants Laskin, Ewing 23 and Langenfeld move to dismiss the 2AC for failure to state a 24 claim, Docket Nos. 83 and 107, and move to strike certain claims 25 pursuant to the anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16, 26 Docket Nos. 114 and 108. 27 dismiss the 2AC for failure to state a claim. 28 127. Defendants CACH and SquareTwo move to Docket Nos. 81 and Defendants Kunkle and Tran move to dismiss for lack of 10 1 personal jurisdiction. 2 opposes Defendants' motions and seeks leave to conduct 3 jurisdictional discovery as to Defendants Kunkle and Tran. 4 Nos. 150 and 152. Docket Nos. 116 and 117. 7 Docket The matters are submitted on the papers. 5 6 Plaintiff DISCUSSION I. Motions to Dismiss the FDCPA Claim Defendants Laskin Law Offices, Laskin, Ewing and Langenfeld 8 move to dismiss the FDCPA claim as barred by the statute of 9 limitations. Defendants CACH and SquareTwo also move to dismiss United States District Court For the Northern District of California 10 the FDCPA claim as time-barred. 11 the motions to dismiss the FDCPA claim are granted. 12 federal claims remain in this action, the Court declines to 13 exercise supplemental jurisdiction over the remaining claims 14 arising under state law and remands the case to the Superior Court 15 for the County of San Francisco. For the reasons set forth below, Because no 16 A. 17 A complaint must contain a "short and plain statement of the Legal Standard 18 claim showing that the pleader is entitled to relief." 19 Civ. P. 8(a). 20 a claim is appropriate only when the complaint does not give the 21 defendant fair notice of a legally cognizable claim and the 22 grounds on which it rests. 23 544, 555 (2007). 24 sufficient to state a claim, the court will take all material 25 allegations as true and construe them in the light most favorable 26 to the plaintiff. 27 (9th Cir. 1986). 28 conclusions; "threadbare recitals of the elements of a cause of Fed. R. Dismissal under Rule 12(b)(6) for failure to state Bell Atl. Corp. v. Twombly, 550 U.S. In considering whether the complaint is NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 However, this principle is inapplicable to legal 11 1 action, supported by mere conclusory statements," are not taken as 2 true. 3 Twombly, 550 U.S. at 555). 4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing When granting a motion to dismiss, the court is generally 5 required to grant the plaintiff leave to amend, even if no request 6 to amend the pleading was made, unless amendment would be futile. 7 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 8 F.2d 242, 246-47 (9th Cir. 1990). 9 amendment would be futile, the court examines whether the In determining whether United States District Court For the Northern District of California 10 complaint could be amended to cure the defect requiring dismissal 11 "without contradicting any of the allegations of [the] original 12 complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 13 Cir. 1990). Leave to amend should be liberally granted, but an 14 amended complaint cannot allege facts inconsistent with the 15 challenged pleading. Id. at 296-97. 16 B. 17 The Attorney Defendants, Laskin Law Offices, CACH and 18 SquareTwo contend that the FDCPA claim is barred by the one-year 19 statute of limitations pursuant to 15 U.S.C. § 1692k(d). 20 Ninth Circuit authority, when the alleged violation of the FDCPA 21 is the filing of a lawsuit, the statute of limitations begins to 22 run on the filing of the complaint in state court. 23 Stolman, 130 F.3d 892, 893 (9th Cir. 1997) ("Filing a complaint is 24 the debt collector's last opportunity to comply with the Act, and 25 the filing date is easily ascertainable.") 26 FDCPA Claim Under Naas v. The gravamen of Plaintiff's FDCPA claim is to challenge the 27 filing and prosecution of the CACH v. Melendez action in state 28 court. Plaintiff alleges that this collection action was a form 12 1 lawsuit used by Defendants CACH and Laskin Law Offices to collect 2 consumer debts. 3 no meaningful professional involvement by an attorney in reviewing 4 the "Ligia Melendez" file and drafting and filing that complaint. 5 2AC ¶ 30. 6 without meaningful involvement by an attorney violates 15 U.S.C. 7 § 1692e(2)(A). 8 on February 14, 2008, 2AC ¶ 29, Plaintiff's FDCPA claim, alleged 9 in her original complaint filed October 25, 2010, is untimely. United States District Court For the Northern District of California 10 2AC ¶ 30. As such, Plaintiff alleges there was Plaintiff alleges that the bringing of a form lawsuit Id. Because the CACH v. Melendez action was filed Plaintiff argues that the continuing violation doctrine tolls 11 the statute of limitations, citing Joseph v. J.J. Mac Intyre 12 Companies, LLC, 281 F. Supp. 2d 1156, 1160 (N.D. Cal. 2003). 13 There, the court applied the continuing violation doctrine because 14 the plaintiff alleged a pattern of repeated harassing phone calls 15 in violation of the FDCPA and Rosenthal Act. 16 limited its holding, applying the continuing violation doctrine to 17 debt collection claims under "appropriate circumstances" such as 18 the pattern of repeated calls alleged there, and did not discuss 19 Naas. 20 contrast, alleges that the filing of the CACH v. Melendez lawsuit, 21 a discrete act, constituted the FDCPA violation. 22 CACH's motion for sanctions, filed on November 5, 2009, the motion 23 was filed in the CACH v. Melendez action and was not a separate 24 lawsuit or collection effort so as to trigger a new limitations 25 period. 26 under Naas. 27 28 281 F. Supp. 2d at 1161. See 2AC ¶ 88. The Joseph court Plaintiff's FDCPA claim, by With respect to As such, the FDCPA claim is time-barred Plaintiff also argues that the discovery rule and equitable tolling for fraudulent concealment should be applied to her 13 1 untimely FDCPA claim here, but cites no authority applying that 2 tolling doctrine to the FDCPA where the claim is based on the 3 filing of a collection action. 4 Mot. Dismiss at 9-11 (citing Norman-Bloodsaw v. Lawrence Berkeley 5 Lab., 135 F.3d 1260, 1268 (9th Cir. 1998) (reversing entry of 6 summary judgment on statute of limitations grounds where the 7 district court erred in holding as a matter of law that the 8 plaintiffs knew or had reason to know of the nature of medical 9 tests for syphilis, sickle cell trait, and pregnancy, as a result United States District Court For the Northern District of California 10 Pl.'s Opp. to Laskin Law Offices of their submission to preemployment medical examinations)). 11 Plaintiff further contends that the class action tolling 12 doctrine should apply to her FDCPA claim because the filing of the 13 Cole class action "must necessarily have given reasonable notice 14 to the Defendants" about Plaintiff's potential claims challenging 15 the Kunkle Affidavit. 16 Dismiss at 9-12. 17 1488 (9th Cir. 1985) (commencement of a class action tolls the 18 applicable statute of limitations for all members of the class 19 until class certification is denied). 20 that either the Laskin Law Offices or any of the Attorney 21 Defendants were parties to the Cole litigation. 22 Plaintiff allege that SquareTwo was a party to the Cole class 23 action. 24 agreement entered in Cole as a party to that action. 25 However, CACH demonstrates that it did not become a party to the 26 Cole class action until March 9, 2009, after the limitations 27 period on Plaintiff's FDCPA claim had already expired on February 28 14, 2009. Pl.'s Opp. to Laskin Law Office Mot. See Tosti v. City of Los Angeles, 754 F.2d 1485, Plaintiff does not contend Nor does Plaintiff alleges that CACH is bound by the settlement CACH Mot. at 5 and RJN Exs. 13-15. 14 2AC ¶ 65. (Docket No. 81.) 1 Plaintiff does not contend otherwise. 2 demonstrate that the class action tolling doctrine would toll her 3 individual FDCPA claim. Thus, Plaintiff fails to 4 The motions of Laskin Law Offices, the Attorney Defendants, 5 CACH and SquareTwo to dismiss the FDCPA claim as time-barred are 6 therefore granted. 7 would be futile, the FDCPA claim is dismissed without leave to 8 amend. 9 United States District Court For the Northern District of California 10 C. Because amendment of the time-barred claim Remand Having dismissed the FDCPA claim, which is the only federal 11 claim alleged in the 2AC, the Court declines to exercise 12 supplemental jurisdiction over the remaining state law claims and 13 remands the action to the Superior Court for the County of San 14 Francisco. 15 Defendant CACH removed this action pursuant to the Court’s 16 federal question jurisdiction. 17 Because Plaintiff’s only claim under federal law is dismissed, no 18 federal claim remains in her suit and, as a result, the exercise 19 of supplemental jurisdiction over her remaining state law claims 20 is no longer necessary. See Notice of Removal ¶ 5. 28 U.S.C. § 1367(c)(3). 21 This action was removed in its early stages, and no factors 22 weigh in favor of the Court exercising supplemental jurisdiction 23 over Plaintiff’s state law claims. 24 Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc). 25 Court declines to do so and sua sponte remands Plaintiff’s action 26 to San Francisco County Superior Court. 27 Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (stating that, after 28 dismissal of all federal claims in an action, "it is generally 15 See Acri v. Varian Associates, Thus, the Harrell v. 20th Century 1 preferable for a district court to remand remaining pendent claims 2 to state court") (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 3 343, 350 n.7 (1988)). 4 5 CONCLUSION For the reasons set forth above, the Court grants the motions 6 of the Laskin Law Offices, the Attorney Defendants Laskin, Ewing 7 and Langenfeld, CACH and SquareTwo to dismiss the FDCPA claim as 8 time-barred. 9 is therefore dismissed and the action is remanded to the Superior Count I of the 2AC alleging a claim under the FDCPA United States District Court For the Northern District of California 10 Court for the County of San Francisco. 11 the anti-SLAPP motions of the Attorney Defendants and the Laskin 12 Law Offices; the remaining grounds of CACH and SquareTwo’s motions 13 to dismiss; and the motions of Kunkle and Tran to dismiss for lack 14 of personal jurisdiction. 15 16 The Court denies as moot The Clerk is directed to transfer the file to the Superior Court and terminate the action on this Court's docket. 17 18 IT IS SO ORDERED. 19 20 21 Dated: 10/15/2012 CLAUDIA WILKEN United States District Judge 22 23 24 25 26 27 28 16
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