-RBB Murphy v. Bronson, Cawley, & Bergmann, LLP, No. 3:2010cv01929 - Document 12 (S.D. Cal. 2011)
Court Description: ORDER granting 7 Motion to Dismiss First Amended Complaint without prejudice. Signed by Judge Anthony J. Battaglia on 06/13/11. (cge)
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-RBB Murphy v. Bronson, Cawley, & Bergmann, LLP Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELISSA MURPHY, 12 Plaintiff, 13 v. 14 BRONSON, CAWLEY, & BERGMANN, LLP 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) Case No.: 3:10-cv-01929 AJB (RBB) ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(b)(6) [Doc. No. 7] 17 18 I. INTRODUCTION 19 Plaintiff Melissa Murphy (“Murphy”) filed the Amended Complaint in this action on December 20 6, 2010 [Doc. No. 5]. The Amended Complaint alleges violations of the Fair Debt Collection Practices 21 Act, 15 U.S.C. § 1692, et seq. (1977) (“FDCPA”), and the Rosenthal Fair Debt Collection Practices Act, 22 Cal. Civ. Code § 1788, et seq. (2009) (“RFDCPA”), against Defendant Bronson, Cawley, & Bergmann, 23 LLP (“Bronson”), a law firm engaged in the business of debt collecting. (Am. Compl. 1-2.) On 24 December 7, 2010, Defendant filed a Motion to Dismiss the First Amended Complaint pursuant to 25 Federal Rule of Civil Procedure 12(b)(6) [Doc. No. 7]. Plaintiff submitted a Response to Defendant’s 26 Motion to Dismiss (“Opposition”) on December 27, 2010 [Doc. No. 9]. On December 29, 2010, 27 Defendant filed a Memorandum of Points and Authorities in Reply to Opposition to Defendant’s Motion 28 1 3:10-cv-01929 AJB (RBB) Dockets.Justia.com 1 to Dismiss the First Amended Complaint (“Reply”) [Doc. No. 10]. For the reasons stated below, the 2 Motion to Dismiss the Amended Complaint is GRANTED. 3 II. BACKGROUND 4 Plaintiff is a resident of San Diego County in the State of California. (Am. Compl. 2, Doc. No. 5 5.) She alleges that she is a “consumer” as defined by the FDCPA, and a “debtor” as defined under the 6 RFDCPA. (Id.) Plaintiff further alleges that Defendant “was a company engaged, by use of the mails 7 and telephone, in the business of collecting a debt from Plaintiff which qualifies as a ‘debt,’ as defined 8 by 15 U.S.C. § 1692a(5), and a ‘consumer debt,’ as defined by Cal. Civ. Code § 1788.2(f).” (Id.) 9 According to Plaintiff, “Defendant regularly attempts to collect debts alleged to be due another, and 10 11 therefore is a ‘debt collector’ as defined by the FDCPA . . . and RFDCPA . . . .” (Id.) Plaintiff claims that “at various and multiple times prior to the filing of the instant complaint, 12 including within the one year preceding the filing of the this complaint, Defendant contacted Plaintiff in 13 an attempt to collect an alleged outstanding debt.” (Id.) Specifically, Plaintiff states, “On or about June 14 25, 2010, Defendant sent Plaintiff a collection letter, written from a law firm letter head but then stating 15 that no attorney has reviewed the file” (“June 25 Letter”). (Id. at 2-3.) Plaintiff attached a copy of the 16 June 25 Letter to the Amended Complaint and marked it as Exhibit “A”. 17 The June 25 Letter is on letterhead stationary listing “Bronson, Cawley & Bergmann, LLP, 18 Attorneys at Law (a limited liability partnership formed in the State of New York)” at the top center, 19 along with an address, telephone, and fax numbers. (Id.) The words “L. Patrick Bergmann**” appear 20 on the top-left side of the letter, with “**Admitted in NY, NJ” printed on the opposite side of the page. 21 (Id.) The subject heading lists: 1) the creditor, Cavalry Portfolio Services, LLP; 2) the file and account 22 numbers; 3) the original creditor, Navy FCU; and 4) the amount due. (Id.) Directly to the right of the 23 subject heading is the phrase, “Attorneys Licensed In:” with the states Illinois, Maryland, New Jersey, 24 New York, Pennsylvania, and Vermont listed below those words. The body of the letter reads as 25 follows: 26 27 28 Melissa Roland: This office has been retained to collect a debt owed by you to CAVALRY PORTFOLIO SERVICES, LLP. Unless you, the consumer, within thirty days after receipt of this notice, dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. 2 3:10-cv-01929 AJB (RBB) 1 If you, the consumer, notify us in writing within the thirty-day period that the debt, or any portion thereof, is disputed we will obtain verification of the debt or a copy of a judgment against you and a copy will be mailed to you by our office. Upon your written request within the thirty-day period, we will provide you with the name and address of the original creditor, if different from the current creditor. Please note that no attorney with our firm has personally reviewed the particular circumstances of your account. Please call your office without delay. The toll free number is 888-523-0856. Sincerely, [signed] L. Patrick Bergmann, Esq. This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose. As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfil the terms of your credit obligations. The state Rosenthal Fair Debt Collection Practices Act and the federal Fair Debt Collection Practices Act require that, except under unusual circumstances, collectors may not contact you before 8 a.m. or after 9 p.m. They may not harass you by using threats of violence or arrest or by using obscene language. Collectors may not sue false or misleading statements or call you at work if they know or have reason to know that you may not receive personal calls at work. For the most part, collectors may not tell another person, other than your attorney or spouse, about your debt. Collectors may contact another person to confirm your location or enforce a judgment. For more information about debt collection activities, you may contact the Federal Trade Commission at 1-877-FTC-HELP or www.ftc.gov. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (Id.) Plaintiff contends that the June 25 Letter “fails to identify any members of Defendant’s law firm 16 who are licensed to practice law in the state of California, leading Plaintiff to believe that she is being 17 contacted by a law firm with the ability to practice in this state.” (Am. Compl. 3, Doc. No. 5.) Plaintiff 18 further maintains that “no members of Defendant’s law firm are licensed to [p]ractice [l]aw in this 19 state.” (Id.) 20 21 Based on these allegations, Plaintiff asserts that Defendants have violated the FDCPA and the RFDCPA by: 22 a) Falsely representing that an individual is an attorney, including, but not limited to, 23 leading Plaintiff to believe Defendant is licensed in California when they are not (§ 24 1692e(3)); 25 b) Falsely representing that any person is an attorney or counselor at law, including, but 26 not limited to, leading Plaintiff to believe Defendant is licensed in California when they 27 are not (Cal[.] Civ[.] Code § 1788.13(b)); and 28 3 3:10-cv-01929 AJB (RBB) 1 c) Using false representations and deceptive practices in connection with collection of an 2 alleged debt from Plaintiff, including, but not limited to, sending a letter from a law firm 3 letter head but then stating that no attorney as reviewed the file (§ 1692e(10)[)]. 4 (Id.) Plaintiff requests a declaratory judgment that Defendant’s conduct violated the FDCPA and 5 RFDCPA, actual damages, statutory damages, costs and attorney’s fees, and “any further relief that may 6 be just and proper.” (Id. at 3-5.) 7 III. 8 9 THE MOTION TO DISMISS Defendant asserts that Plaintiff’s claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. Dismiss Attach. #1 Mem. P. & A. 4-5, Doc. No. 7.) According 10 to Defendant, “[T]he [Amended Complaint] does not allege any facts supporting any cause of action 11 against Bronson.” (Id.) He argues, “The allegations in the [Amended Complaint] consist simply of 12 legal conclusions that are not supported by any facts and which are directly contradicted by the letter 13 from Bronson to Plaintiff . . . .” (Id.) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 14 Additionally, Defendant claims that Plaintiff’s assertion that Defendant law firm falsely represented 15 itself as employing licensed attorneys cannot be true because the signor of the June 25 letter, Mr. 16 Bergmann, is in fact a licensed attorney in the state of New York.1 (See Mot. Dismiss Attach. #1 Mem. 17 P. & A. 4-6, Doc. No. 7.) 18 Defendant also argues in the Motion to Dismiss that Plaintiff’s allegations in the Amended 19 Complaint cannot survive as a matter of law. (Id. at 5-9.) First, Defendant maintains that the June 25 20 letter does not violate any debt collection laws. (Id. at 6.) According to Defendant, the June 25 Letter 21 “contains no threats of litigation and makes it clear to Plaintiff that no attorney has reviewed her account 22 prior to writing the letter.” (Id. at 8) (citing Depuy v. Weltman, Wienberg, & Reis Co., 442 F.Supp.2d 23 24 25 26 27 28 1 As evidence that Mr. Bergmann is licensed to practice law, Defendants submitted an on-line New York State Attorney Search record for L. Patrick Bergmann, confirming his eligibility to practice law in that state. (Mot. Dismiss Attach. #3 Req. Judicial Notice 1-2, Doc. No. 7.) Under Federal Rule of Evidence 902(5), publications issued by a public authority are self-authenticating. Plaintiffs have not disputed the accuracy of Defendants' submission. Courts do take judicial notice of information found on government agency websites. See Paralyzed Veterans of Am. v. McPherson, 2008 WL 4183981, at *5-6 (N.D. Cal. Sept. 9, 2008) (citing appellate and district court decisions taking judicial notice of information found on government agency websites). Therefore, the Court grants, pursuant to Federal Rule of Evidence 201, Defendants' request for judicial notice of Defendant’s on-line confirmation of Mr. Bergmann’s license to practice law in the state of New York. 4 3:10-cv-01929 AJB (RBB) 1 822, 825 (N.D. Cal. 2006); Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 363 (3d Cir. 1993) 2 (holding that a collection letter on law firm letterhead that included a clear disclaimer stating that “[a]t 3 this time, no attorney with this firm has personally reviewed the particular circumstances of your 4 account,” did not misrepresent the nature of attorney involvement)). Second, Defendant argues that the 5 “letter sent to Plaintiff would not lead the least sophisticated debtor to believe that Bronson is licensed 6 to practice law in the state of California.” (Id.) (citing Donahue v. Quick Collect, Inc., 592 F.3d 1027, 7 1033 (9th Cir. 2010) (“Whether conduct violates §§ 1692e . . . requires an objective analysis that takes 8 into account whether the least sophisticated debtor would likely be misled by a communication.”) 9 (internal quotes omitted)). According to Defendant, Plaintiff’s claim that the letter’s failure to identify 10 any attorneys licensed in California lead Plaintiff to believe that the firm had attorneys licensed in 11 California is a “‘bizarre or idiosyncratic interpretation’” of a debt collection letter. (Mot. Dismiss 12 Attach. #1 Mem. P. & A. 10, Doc. No. 7) (quoting Greco, 412 F.3d at 363). 13 In the Opposition, Plaintiff reiterates her assertion that Defendant is on notice of the instant 14 claim, and that the facts alleged state a claim for relief. (Opp’n 3, Doc. No. 9.) Plaintiff asserts that 15 Defendant’s arguments in support of the Motion to Dismiss only serve as evidence that Defendant is 16 sufficiently noticed of Plaintiff’s claims, thereby satisfying federal pleading requirements. (Id.) (citing 17 Twombly, 550 U.S. at 555) (stating that pleadings must “give the defendant fair notice of what the . . . 18 claim is and the grounds upon which it rests”). Additionally, Plaintiff argues that Defendant’s Motion to 19 Dismiss and attachments “raise[] arguments which essentially argue that the facts of this case are not 20 good enough[,] which is procedurally improper for a motion to dismiss.” (Opp’n 3, Doc. No. 9.) 21 Plaintiff further asserts that the language used in the June 25 Letter is sufficient to show a threat of 22 litigation, citing a case from the Northern District of California in support. (Id. at 5-7) (citing Robertson 23 v. Richard J. Boudreau & Assocs., LLC, 2009 WL 5108479 (N.D. Cal. Dec. 18, 2009). In Robertson, 24 Plaintiff notes, the court distinguished Greco on the basis that the Robertson letter, unlike the Greco 25 letter, contained threatening language that “overshadowed and contradicted” the disclaimer that no 26 attorney had reviewed the file. (Id. at 6); Robertson, WL 5108479, at *6. Concurrent with the 27 Opposition brief, Plaintiff filed a request that the Court take judicial notice of the Robertson decision 28 5 3:10-cv-01929 AJB (RBB) 1 cited above. (Opp’n Attach. #1 Ex. Req. Judicial Notice, Doc. No. 9-1.) Plaintiff also argues that if 2 Defendant’s Motion is granted, the Court should grant leave to amend. (Opp’n 9, Doc. No. 9.) 3 In its Reply, Defendant rejects Plaintiff’s contention that the Amended Complaint has suffi- 4 ciently plead a claim for relief, arguing that “Plaintiff has simply not alleged —and cannot allege 5 —facts that demonstrate that she has a plausible claim against Defendant in this lawsuit.” (Reply 2, 6 Doc. No. 10.) Also, Defendant distinguishes Robertson from this case because the defendants in that 7 case had sent three letters to the plaintiff (whereas only one was sent in this case) and the letter in that 8 case not only referred to “retaining” the attorneys but also contained language expressly referring to 9 litigation, such as “valid legal defense,” “cost of litigation,” and “non-litigious resolution.” (Id. at 3.) 10 According to Defendant, the Robertson court “acknowledges that simply sending a letter on the 11 letterhead of a law firm does not violate the FDCA.” (Id. at 3-4.) Defendant further asserts that Grecco 12 has been followed by a number of district courts in California, including most recently in Walsh v. 13 Frederick J. Hanna & Assoc’s, 2010 WL 5394624 (E.D. Cal. Dec. 21, 2010). Defendant requests 14 judicial notice of the Walsh order.2 (Reply Attach. #1 Req. Judicial Notice, Doc. No. 10-1.) Finally, 15 Defendant argues that Plaintiff should not be given leave to amend because the letter does not violate 16 any debt collection laws. (Reply 6, Doc. No. 10.) 17 IV. LEGAL STANDARD 18 A. 19 Under Fed. R. Civ. P. Rule 8(a), a plaintiff must plead her claim with sufficient specificity to Rule 12(b)(6) 20 “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 21 550 U.S. at 544. “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a 22 cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. 23 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). For purposes of a motion to dismiss, 24 the plaintiff's allegations are taken as true, and the court must construe the complaint in the light most 25 favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411 (1969). “To survive a motion to dismiss, 26 a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 27 28 2 The Court denies the parties’ separate requests for judicial notice of the Robertson and Walsh cases. The Court may review other district court cases without taking judicial notice of them. See Taylor v. Pinnacle Credit Serv’s, LLC, 2011 WL 1303430, at *5 n.3 (N.D. Cal. April 4, 2011). 3:10-cv-01929 AJB (RBB) 6 1 plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 3 Ashcroft v. Iqbal, ––– U.S. –––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868; Twombly, 550 U.S. at 556, 570. 4 Thus, a court need not accept as true conclusory allegations, unreasonable inferences, legal characteriza- 5 tions, or unwarranted deductions of fact contained in the complaint. Clegg v. Cult Awareness Network, 6 18 F.3d 752, 754–55 (9th Cir. 1994). 7 Under Rule 12(b)(6), if “matters outside the pleading are presented to and not excluded by the 8 court, the [12(b)(6)] motion shall be treated as one for summary judgement and disposed of as provided 9 in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to 10 such motion by Rule 56.” Fed. R. Civ. P. 12(b). However, in ruling on a 12(b)(6) motion, a court may 11 consider allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 12 subject to judicial notice. Swartz v. KPMG, LLP., 476 F.3d 756, 763 (9th Cir. 2007). Thus, the June 25 13 Letter and judicial notice of Mr. Bergmann’s status as an attorney are not matters outside the pleading 14 and do not require this Motion to be treated as one for summary judgment. 15 V. DISCUSSION 16 A. The FDCPA and the RFDCPA 17 In light of the “abundant evidence of the use of abusive, deceptive, and unfair debt collection 18 practices by many debt collectors[,]” 15 U.S.C. § 1692a, Congress enacted the FDCPA in 1977 “to 19 eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who 20 refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote 21 consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). To 22 accomplish this goal, the FDCPA prohibits debt collectors from “using any false, deceptive or 23 misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e; 24 see also 15 U.S.C. § 1692e(10) (prohibiting “[t]he use of any false representation or deceptive mans to 25 collect or attempt to collect any debt or to obtain information concerning a consumer”). 26 In addition to this general prohibition, § 1692e prohibits specific types of conduct that are 27 deemed to be false, deceptive or misleading, including “[t]he false representation or implication that any 28 individual is an attorney or that any communication is from an attorney,” 15 U.S.C. § 1692e(3), or “[t]he threat to take any action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C. § 3:10-cv-01929 AJB (RBB) 7 1 1692e(5). In considering whether a statement in a debt collection letter violates these prohibitions, 2 courts apply the “least sophisticated debtor standard.” Depuy, 442 F.Supp.2d at 824 (citing Wade v. 3 Reg’l Credit Ass’n, 87 F.3d 109, 1100 (9th Cir. 1996)). “Under that standard, if the court finds the least 4 sophisticated debtor ‘would likely be misled’ by a debt collection letter, the court ‘must hold the 5 [defendant] has violated the [FDCPA].’” Id. (quoting Swanson v. S. Oregon Credit Serv., 869 F.2d 1222, 6 1225 (9th Cir. 1988)). 7 “In order for a plaintiff to recover under the FDCPA, there are three threshold requirements: (1) 8 the plaintiff must be a ‘consumer’; (2) the defendant must be a ‘debt collector’; and (3) the defendant 9 must have committed some act or omission in violation of the FDCPA.” Robinson v. Managed Accounts 10 Receivable Corp., 654 F.Supp.2d 1051, 1057 (C.D. Cal. 2009). Defendants challenge only the 11 sufficiency of Plaintiff's allegations as to the third requirement. (See Mot. Dismiss Attach. #1 Mem. P. 12 & A. 1, Doc. No. 7.) 13 The RFDCPA is California’s version of the FDCPA; it “either mimics the relevant provisions of 14 the FDCPA or incorporates them by reference.” Riggs v. Prober & Raphael, 2010 WL 3238969, at *3 15 (N.D. Cal. August 16, 2010); see Cal. Civ.Code. § 1788.17. Thus, district courts analyze FDCPA and 16 RFDCPA claims identically. See Taylor, 2011 WL 1303430, at *2 n.2; Walsh, 2010 WL 5394624, at 17 *4; Riggs, 2010 WL 3238969, at *3. 18 B. Claims Under the FDCPA 19 Plaintiff asserts that Defendant “argue[s] that the facts of this case are not good enough[,] which 20 is procedurally improper for a motion to dismiss.” (Opp’n 3, Doc. No. 9.) Plaintiff claims that it is 21 enough to put the Defendant on notice of the claims against him to survive a Rule 12(b)(6) motion. (Id. 22 at 3-4.) However, “for a complaint to survive a [Rule 12(b)(6)] motion to dismiss, the nonconclusory 23 ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim 24 entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 25 In the Ninth Circuit, the question of whether a collection letter violates the FDCPA is a question of law. 26 See Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997). Thus, district courts in the Ninth Circuit 27 have addressed whether language in a collection letter violates the FDCPA in evaluating a motion to 28 dismiss. See Taylor, 2011 WL 1303430, at *6 (evaluating whether a collection letter violates the FDCPA and listing other district court cases that evaluated FDCPA violations at dismissal stage). Here, 3:10-cv-01929 AJB (RBB) 8 1 the only factual allegations that might plausibly suggest a claim entitling Plaintiff to relief arise out of 2 the June 25 Letter. That letter was attached to the Amended Complaint and may be considered by the 3 Court. (Am. Compl. Attach. #1 Ex. “A.”); Swartz, 476 F.3d at 763. Therefore, the Court will address 4 the question of whether the June 25 Letter violates the FDCPA. 5 C. 6 Plaintiff argues that the June 25 Letter falsely represents attorney involvement in a debt 7 collection activity because it lead Plaintiff “to believe that she is being contacted by a law firm with the 8 ability to practice in [California],” despite the fact that no members of Defendant’s law firm are licensed 9 to practice law in California. (Am. Compl. 3, Doc. No. 5.) However, this argument and Plaintiff’s 10 allegations do not plausibly suggest that Plaintiff has stated a claim or could state a claim under § 11 1692e(3), or § 1692e(10). Attorneys may participate in the debt collection process without violating the 12 FDCPA as long as their status as attorneys is not misleading to debtors. Greco, 412 F.3d at 363. A 13 collection letter misleads a debtor as to an attorney’s status when the letter “appear[s] to be sent by an 14 attorney without the attorney’s having both reviewed the debtor’s file and gained some knowledge about 15 the specific debt.” Irwin v. Mascott, 112 F.Supp.2d 937, 949 (N.D. Cal. 2000) (citing Newman v. 16 Checkrite, 912 F.Supp. 1354, 1382 (E.D. Cal. 1995)). The use of an attorney’s letterhead and signature 17 on a collection letter is “sufficient to give the least sophisticated consumer the impression that the letters 18 [are] communications from an attorney.” Depuy, 442 F.Supp.2d at 825 (citing Clomon v. Jackson, 988 19 F.2d 1314, 1320-21 (2d Cir. 1993)). 20 False Representation of Attorney Involvement A collection letter from an attorney that contains a disclaimer, however, may not violate the 21 FDCPA if the least sophisticated consumer, reading the letter, would understand that the attorney had 22 not reviewed the facts of his or her case. See Greco, 412 F.3d at 363. In Greco, the Second Circuit held 23 as a matter of law that a collection letter was not deceptive or misleading, even though it was printed on 24 law firm stationary and signed by a law firm, because it contained a disclaimer stating that “[a]t this 25 time, no attorney with this firm has personally reviewed the particular circumstances of your account.” 26 Id. 27 28 Plaintiff points out, though, that an express disclaimer like the one in Greco does not guarantee that a collection letter is not deceptive. (Opp’n 6-9, Doc. No. 9); see Robertson, 2009 WL 5108479; Dunn v. Derrick E. McGavic, 653 F.Supp.2d 1109 (D.Or. 2009). In Dunn, the court found that a 3:10-cv-01929 AJB (RBB) 9 1 collection letter violated the FDCPA when the language in the collection letter contradicted the 2 disclaimer. Dunn, 653 F.Supp.2d at 1113-14. Relying on Dunn, Judge Zimmerman in Robertson 3 distinguished Greco, finding that a collection letter violated the FDCPA because the language in the 4 letter contradicted the disclaimer that no attorney had reviewed the file. Robertson, 2009 WL 5108479, 5 at *2-3. The court in Robertson explained: 6 7 8 9 10 11 12 13 14 15 I find that all three of the letters deceptively imply attorney involvement. Each letter is printed on defendant’s letterhead, which states “Attorneys at law” and is signed “Richard J. Boudreau & Associates, LLC.” Although using attorney letterhead alone may not violate the FDCPA, the legal language in each letter crosses the line. The first letter opens with “This law firm has been retained” (emphasis added) which is language that suggests that it is from an attorney hired to do legal work. The first and second letters also state that the law firm’s “review will determine whether there is a valid legal dispute regarding the debt . . . .” (Emphasis added). The third letter contains language such as “valid legal defense,” “cost of litigation,” and “non-litigious resolution.” The disclaimer in the middle of each letter that “no attorney with this firm has personally reviewed the particular circumstances of your account” is contradicted and overshadowed by the rest of the language in each letter, which would suggest to the least sophisticated consumer that the letter was from an attorney . . . . Defendant’s reliance on Greco is unpersuasive. [citation omitted] . . . First, Greco is not controlling in this jurisdiction. More importantly, the brief Greco letter does not contain any of the threatening language in defendant’s letters and appended a statement of the debtor’s rights that fairly tracked the FDCPA. The Greco letter does not use language like “litigation” or “any valid legal defense” or any of the inconsistent language this letter contains . . . . Finally, in Greco, the defendant sent only one letter, whereas in this case defendant sent three successive letters to plaintiff.” 16 Id. at *2. 17 This Court agrees with the Robertson court that Greco is not controlling, but nevertheless finds 18 Greco persuasive. Because the Ninth Circuit has not ruled on the issue of whether a collection letter 19 signed by an attorney may be misleading, many district courts have adopted the approach of Greco and 20 Clomon. Taylor, 2011 WL 1303430, at *8; see e.g. Walsh, 2010 WL 5394624, at *3 (dismissing on a 21 Rule 12(b)(6) motion FDCPA claim based on alleged false representation of attorney involvement 22 where collection letter, though printed on attorney letterhead, contained disclaimer stating that an 23 attorney had not reviewed the matter, because least sophisticated consumer would have understood that 24 attorney had not reviewed the specific facts of the case, citing Greco and Clomon); Depuy, 442 25 F.Supp.2d at 825 (denying motion under Rule 12(b)(6) to dismiss FDCPA claim based on alleged false 26 representation of attorney involvement where letter was on law firm letterhead and did not contain 27 disclaimer stating that attorney had not reviewed the matter, citing Greco and Clomon). 28 10 3:10-cv-01929 AJB (RBB) 1 Therefore, the question before this Court is whether the language in the June 25 Letter contra- 2 dicts or overshadows the disclaimer stating that no attorney had reviewed the file, misleading the least 3 sophisticated consumer. See Depuy, 442 F.Supp. at 824. Recently, a Northern District of California 4 court decided a case nearly identical to the one here. See Taylor, WL 1303430. In a persuasively 5 written opinion, Judge Spero found that a collection letter on law firm letterhead, signed by an attorney, 6 with a substantially similar disclaimer to the one in this case, did not violate the FDCPA. Taylor, 2011 7 WL 1303430, at *10. 8 9 10 11 12 13 14 15 16 The Court concludes that the least sophisticated debtor, reading the letter sent by Defendant in this case, would understand that the attorney who signed the letter had not reviewed the specific facts of the case. The letter is short and straightforward, like the letter in Greco, and it does not refer to “claims” or “litigation,” or use any other language that suggests impending litigation. It also includes a standard FDCPA validation notice that accurately sets forth the debtor’s right to challenge the underlying debt. Nor does the Court find that the statement in the June 28 letter that Hecker “represents” Defendant is sufficient to overshadow the letter’s disclaimer; although Judge Zimmerman relied, in part, on the statement in the collection letters in Robertson that “[t]his law firm has been retained” in support of his conclusion that the letters deceptively implied attorney involvement, the facts of that case were distinguishable because the letters (there were three rather than just the one letter at issue here) contained other language suggesting “impending legal action.” Id. (citing Robertson, 2009 WL 5108479, at *2). Here, like Taylor, there is no language threatening litigation or otherwise giving the impression 17 of impending litigation. Id. The brief June 25 Letter did contain the word “retained” like the letter in 18 Robertson. Robertson, 2009 WL 5108479, at *2. But the phrase “[t]his office has been retained,” 19 coupled with law firm letterhead, does not overshadow the express disclaimer that no attorney had 20 reviewed the file. See Taylor, 2011 WL 1303430, at *10. The words “[t]his office” in the June 25 21 Letter are even less likely to convey attorney involvement than “this law firm” in the Robertson letter. 22 Robertson, 2009 WL 5108479, at *2. Therefore, the Court finds that the June 25 letter would not 23 mislead the least sophisticated consumer as to attorney involvement. See Depuy, 442 F.Supp. at 824. 24 Accordingly, the Court finds as a matter of law that Plaintiff has failed to state a claim under 15 U.S.C. 25 §§ 1692e(3) or (10) based on the alleged misrepresentation of attorney involvement in the June 25 26 Letter, and GRANTS Defendant’s Motion to Dismiss the First Amended Complaint. 27 28 Because the letter does not violate the FDCPA as a matter of law this claim is DISMISSED with prejudice. 11 3:10-cv-01929 AJB (RBB) 1 However, since the Plaintiff pleads that Defendant used “false representations and deceptive 2 practices in connection with collection of an alleged debt from Plaintiff including, but not limited to, 3 sending a letter . . . .” (Am. Compl. 3-5, Doc. No. 5) (emphasis added), Plaintiff will be allowed an 4 opportunity to file a Second Amended Complaint articulating specific violations (other than the June 25 5 Letter discussed herein) by which Defendant has violated the FDCPA. Any such amendment must be 6 filed within thirty (30) days of the date of this order. As a result, and except as stated above, Plaintiff’s 7 First Amended Complaint is DISMISSED without prejudice. 8 D. The Rosenthal Act 9 Plaintiff claims that the June 25 Letter also violated Cal. Civ. Code § 1788.13(b) by “[f]alsely 10 representing that any person is an attorney or counselor at law . . . .” (Am. Compl. 3, Doc. No. 5.) 11 Defendant seeks to dismiss this claim “since there is nothing in the letter that suggests that any of 12 Defendant’s attorneys are licensed to practice law in California or . . . that a legal proceeding has been 13 or will be instituted.” (Reply 6, Doc. No. 10.) This claim is dismissed with prejudice for the same 14 reasons Plaintiff’s similar FDCPA claims have been dismissed. Leave to articulate specific alleged 15 violations under the Rosenthal Act, other than those disposed of herein, is granted within the same thirty 16 (30) days of the date of this order 17 VI. 18 CONCLUSION Defendant’s motion to dismiss Plaintiff’s complaint without prejudice is GRANTED. 19 20 21 IT IS SO ORDERED. 22 23 DATED: June 13, 2011 24 25 Hon. Anthony J. Battaglia U.S. District Judge 26 27 28 12 3:10-cv-01929 AJB (RBB)
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