Lachi v. GE Capital Bank et al, No. 3:2013cv02568 - Document 8 (S.D. Cal. 2014)
Court Description: ORDER Granting 4 Defendant Encore Receivable Management, Inc.'s Motion to Dismiss With Leave to Amend. Amended complaint due by February 10, 2014. The hearing set for January 31, 2014, is Vacated. Signed by Judge Gonzalo P. Curiel on 1/28/2014. (srm)
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Lachi v. GE Capital Bank et al Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 MEGAN LACHI, v. Plaintiff, GE CAPITAL BANK et al., Defendants. ) ) ) ) ) ) ) ) ) Case No. 3:13-cv-2568-GPC-WMC ORDER GRANTING DEFENDANT ENCORE RECEIVABLE MANAGEMENT, INC.’S MOTION TO DISMISS WITH LEAVE TO AMEND (ECF NO. 4) 16 17 INTRODUCTION 18 Presently before the Court in this fair debt collection case is defendant Encore 19 Receivable Management, Inc.’s (“Encore”) Motion to Dismiss each of plaintiff Megan 20 Lachi’s (“Plaintiff”) claims as asserted against Encore. (ECF No. 4.) Plaintiff has 21 opposed Encore’s Motion to Dismiss, (ECF No. 6), and Encore has filed a reply, (ECF 22 No. 7). The Court finds Encore’s Motion to Dismiss suitable for disposition without 23 oral argument. See CivLR 7.1.d.1. Having considered the parties’ submissions, the 24 Court will GRANT Encore’s Motion to Dismiss WITH LEAVE TO AMEND. 25 PLAINTIFF’S ALLEGATIONS 26 Plaintiff alleges that “Defendants and each of them” claim Plaintiff owes them 27 a debt and that, on November 9, 2010, Plaintiff retained the Doan Law Firm, LLP to 28 dispute the validity of the alleged debt. (ECF No. 1, Compl. ¶¶ 20, 21.) 3:13-cv-2568-GPC-WMC Dockets.Justia.com 1 As to Encore, Plaintiff alleges Doan Law Firm sent “one (1) written ‘Cease and 2 Desist Order’ by mail dated April 19, 2011.” (Id. ¶ 27.) The “Cease and Desist Order” 3 provided, among other things, that “Defendants Cease and Desist all further 4 communications with Plaintiff with respect to the debt.” (Id. ¶ 28.) 5 Plaintiff alleges “Defendants physically received and had actual knowledge of 6 the Cease and Desist Orders” and therefore “knew they were now prohibited from 7 contacting Plaintiff by all means.” (Id. ¶¶ 29, 35.) Plaintiff claims Defendants had 8 actual knowledge that Plaintiff was represented by counsel, refused to pay the debt, 9 disputed the validity of the debt, and was preparing to file for bankruptcy relief. (Id. 10 ¶¶ 30, 32, 33, 34.) 11 Thereafter, Plaintiff alleges that “Defendants intentionally, willfully, 12 deliberately, and knowingly refused to abide by the laws of” California’s Rosenthal 13 Fair Debt Collection Act (“Rosenthal Act”), the federal Fair Debt Collection Act 14 (“FDCPA”), and the federal Telephone Consumer Protection Act (“TCPA”). (Id. ¶ 41.) 15 More Specifically, Plaintiff claims “Defendants continued communications with 16 Plaintiff, as further evidenced by the copies of letters sent to Plaintiff,” which are 17 attached to Plaintiff’s Complaint as Exhibit C. (Id. ¶ 42.) Notably, the only letter from 18 Encore that is included in Exhibit C is dated November 22, 2010—i.e., approximately 19 five months before the Doan Law Firm allegedly sent Encore a “Cease and Desist 20 Order.” (See ECF No. 1-1 at 49; Compl. ¶ 27.) 21 Plaintiff further claims “Defendants continued to make at least twenty-five (25), 22 probably more, unlawful calls to Plaintiff from March 16, 2011 through March 27, 23 2011. Plaintiff details the alleged calls in a log attached as Exhibit D to her Complaint. 24 Encore is not listed anywhere on the log. (See ECF No. 1-1 at 53-54.) And again, 25 these alleged calls were made before the Doan Law Firm allegedly sent Encore a 26 “Cease and Desist Order.” (See id.; Compl. ¶ 27.) 27 Plaintiff further alleges “Defendants sent two (2) emails to Plaintiff on March 28 23, 2011 and April 13, 2011,” which emails are attached as Exhibit E to Plaintiff’s 2 3:13-cv-2568-GPC-WMC 1 Complaint. None of the emails are from Encore. (See ECF No. 1-1 at 56-59.) 2 Moreover, the March 23, 2011 email was sent prior to the Doan Law Firm allegedly 3 sending Encore a “Cease and Desist Order.” (See id.; Compl. ¶ 27.) 4 Plaintiff alleges she “had a consumer credit card account that had originated 5 with, was assigned to, and/or was serviced by Defendants.” (Compl. ¶ 58.) Plaintiff 6 denies, however, “ever providing her cell phone and/or residential telephone number 7 to Defendants with the express consent to be called by an ‘automatic telephone dialing 8 system’ or ‘artificial or prerecorded voice,” or any other method.” (Id. ¶ 60.) 9 Based on the foregoing, Plaintiff asserts six causes of action for: (1) violation of 10 the Rosenthal Act, California Civil Code § 1788.17, through violation of the FDCPA, 11 15 U.S.C. § 1692c(a)(2); (2) violation of the Rosenthal Act, California Civil Code § 12 1788.17, through violation of the FDCPA, 15 U.S.C. § 1692c(c); (3) violation of the 13 Rosenthal Act, California Civil Code § 1788.17, through violation of the FDCPA, 15 14 U.S.C. § 1692e(10); (4) violation of the Rosenthal Act, California Civil Code § 15 1788.14(c); (5) negligent violations of the TCPA, 47 U.S.C. § 227 et seq.; (6) knowing 16 and/or willful violations of the TCPA, 47 U.S.C. § 227 et seq. Plaintiff asserts all six 17 causes of action against each of the Defendants. Encore now moves to dismiss all six 18 causes of action as asserted against Encore. DISCUSSION 19 20 Encore argues Plaintiff’s claims against it should be dismissed because (1) 21 Plaintiff lacks standing as a “consumer” under the Rosenthal Act, and (2) Plaintiff fails 22 to differentiate in her claims against all “Defendants” which of her allegations relate 23 to Encore. 24 I. Legal Standard 25 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the 26 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 27 Dismissal is warranted under Rule12(b)(6) where a plaintiff presents a cognizable legal 28 theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter 3 3:13-cv-2568-GPC-WMC 1 Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). While a plaintiff need not give 2 “detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise 3 a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 4 544, 545 (2007). That is, “a complaint must contain sufficient factual matter, accepted 5 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,129 6 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). 7 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 8 the court determines that the allegation of other facts consistent with the challenged 9 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 10 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 11 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). 12 II. Analysis 13 A. “Consumer” Standing 14 The Rosenthal Act expressly incorporates most provisions of the FDCPA. See 15 Cal. Civ. Code § 1788.17. As such, a violation of the FDCPA may result in cumulative 16 liability under both the FDCPA and the Rosenthal Act. See Gonzalez v. Arrow Fin. 17 Servs., LLC, 660 F.3d 1055, 1068 (9th Cir. 2011). Indeed, Plaintiff’s first, second, and 18 third causes of action are asserted under this approach—i.e., violation of California 19 Civil Code § 1788.17 through violation of 15 U.S.C. §§ 1692c(a)(2), 1692c(c), and 20 1692(e)(10). 21 Under § 1692c(a)(2), a debt collector generally “may not communicate with a 22 consumer in connection with the collection of any debt . . . if the debt collector knows 23 the consumer is represented by an attorney with respect to such debt.” (Emphasis 24 added.) Similarly, under § 1692c(c), a debt collector generally must not “communicate 25 further with [a] consumer” if the “consumer notifies [the] debt collector in writing that 26 the consumer refuses to pay a debt or that the consumer wishes the debt collector to 27 cease further communication with the consumer with respect to such debt.” (Emphasis 28 added.) 4 3:13-cv-2568-GPC-WMC 1 Under the FDCPA, “[t]he term ‘consumer’ means any natural person obligated 2 or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3). And, for purposes of 3 § 1692(c), “the term ‘consumer’ includes the consumer’s spouse, parent . . ., guardian, 4 executor, or administrator.” 15 U.S.C. § 1692c(d). 5 Encore argues Plaintiff has no standing to assert her first and second causes of 6 action against Encore because she has failed to allege she was obligated or allegedly 7 obligated to pay a debt for which Encore sought collection and because she has not 8 alleged that she is a consumer’s spouse, parent, guardian, executor, or administrator. 9 (ECF No. 4-1 at 4-5.) 10 In response, Plaintiff argues she has sufficiently alleged she is a consumer under 11 15 U.S.C. § 1692a(3), in that she “alleges she incurred a debt with Defendants.” (ECF 12 No. 6 at 7 (citing Compl. ¶ 20).) Plaintiff then provides additional facts not alleged in 13 her Complaint, to wit, that she was living at the address where the Encore letter, 14 (Compl., Ex. C), was sent and that, if permitted, she would amend her Complaint to 15 allege she is the former wife of the Encore letter’s addressee, “Gustavo E. Lachi.” 16 (ECF No. 6 at 7.) 17 In reply, Encore asserts that paragraph 20 of Plaintiff’s Complaint does not–as 18 Plaintiff asserts–allege “she incurred a debt with Defendants.” (ECF No. 7 at 2.) But 19 that, instead, paragraph 20 merely reads: “Defendants allege that Plaintiff incurred a 20 ‘debt.’” (Id.) Encore asserts that the letter addressed to Gustavo Lachi neither 21 identifies Plaintiff nor asserts that Plaintiff owes a debt. (Id.) Encore further raises 22 doubts as to Plaintiff’s ability to allege she is a “consumer” under § 1692c(d)’s 23 “spouse” provision, given Plaintiff’s apparent divorce from Gustavo Lachi. (Id. at 2-3.) 24 The Court agrees with Encore that Plaintiff has not sufficiently alleged she is a 25 consumer for purposes of asserting her first and second causes of action against 26 Encore. While Plaintiff claims generally, in paragraph 20 of her Complaint, that 27 “Defendants allege that Plaintiff incurred a ‘debt,’” Plaintiff does not plausibly allege 28 that she is “obligated or allegedly obligated to pay a debt” to Encore. See 15 U.S.C. 5 3:13-cv-2568-GPC-WMC 1 § 1692a(3). This is because the only communication from Encore described in 2 Plaintiff’s Complaint (i.e.,the Encore letter) is addressed to Gustavo Lachi and does not 3 mention Plaintiff. In other words, Plaintiff’s general allegation that “Defendants allege 4 that Plaintiff incurred a ‘debt’” is conclusory. Further, Plaintiff concedes she failed to 5 allege she is a “consumer” under § 1692c(d) because she has not alleged she was 6 Gustavo Lachi’s spouse at the time she received the Encore letter. Accordingly, the 7 Court will grant Encore’s Motion to Dismiss as to Plaintiff’s first and second causes 8 of action as asserted against Encore. 9 10 11 B. Sufficiency of Allegations Encore argues “the only factual allegations related to the conduct of Encore show that Plaintiff has no claim against it.” (ECF No. 4-1 at 5.) 12 As to Plaintiff’s Rosenthal Act claims, Encore asserts that Plaintiff “alleges only 13 that Encore sought to collect a debt from Mr. Lachi (not Plaintiff) prior to any 14 knowledge that Plaintiff had engaged an attorney with respect to this debt, refused to 15 pay, or requested that communications cease.” (Id. at 6.) Encore contends that 16 “Plaintiff does not alleged (nor could she) that any further collection activity occurred 17 after Encore was so notified.” As such, Encore contends Plaintiff’s first through fourth 18 claims should be dismissed as asserted against Encore. 19 As to Plaintiff’s TCPA claims, Encore asserts Plaintiff’s sole support is the 20 “Unlawful Communications Log,” which is attached as Exhibit D to her Complaint, 21 and which does not mention Encore. (Id. at 7.) Encore thus argues Plaintiff’s fourth 22 and fifth causes of action should also be dismissed as asserted against Encore. (Id.) 23 In opposition, Plaintiff asserts that, “[w]hile [she] did not allege which calls were 24 made by which entity, she alleges that each individual Defendant, in whole or part, was 25 responsible for the wrongful conduct.” (ECF No. 6 at 8 (citing Compl. ¶ 1).) Plaintiff 26 contends she “is not required to set forth [Encore]’s precise role but only satisfy the 27 pleading requirements . . . by providing fair notice of the nature of the claims.” (Id.) 28 Plaintiff argues she “has more than satisfied this requirement by alleging all 6 3:13-cv-2568-GPC-WMC 1 Defendants, including Encore, participated in illegal debt collection activities when 2 they placed at least 25 calls to her.” (Id.) 3 The Court agrees with Encore that Plaintiff has not plausibly alleged that Encore 4 communicated with Plaintiff knowing Plaintiff was represented by an attorney, refused 5 to pay a debt, or wanted Encore to cease communication with Plaintiff. Neither has 6 Plaintiff plausibly alleged that Encore used false representations or deceptive means 7 in attempting to collect a debt. The only alleged contact specifically from Encore (i.e., 8 the Encore letter) occurred approximately five months before Plaintiff’s counsel 9 allegedly sent Encore a “Cease and Desist Order.” (See Compl., Ex. C; Compl. ¶ 27.) 10 While Plaintiff asserts “Defendants” made several calls and sent two emails, nowhere 11 does Plaintiff allege any fact making it plausible that Encore made any of those calls 12 or sent either email. Thus, Plaintiff has failed to state any claim against Encore. See 13 Tapang v. Wells Fargo Bank, NA, 2012 WL 3778965, at *5 (N.D. Cal. Aug. 30, 2012) 14 (dismissing FDCPA claim in part because plaintiff did not identify which of the 15 defendants performed the alleged unlawful activities); Penney v. Wells Fargo Bank, 16 NA, 2012 WL 1071705, at *14 (C.D. Cal. June 8, 2012) (dismissing UCL claim where 17 plaintiff’s indiscriminate use of “Defendants” without specifying which defendant 18 committed each alleged unlawful practice failed to satisfy Rule 8); cf. Messina v. 19 Mazzeo, 854 F. Supp. 116, 126 (E.D.N.Y. 1994) (finding plaintiff’s police brutality 20 allegations against seven individual officers sufficient even though plaintiff did not 21 differentiate between conduct of officers because allegations related to single event and 22 would be unreasonable for plaintiff to differentiate between conduct of individual 23 officers in such a situation). 24 /// 25 /// 26 /// 27 /// 28 /// 7 3:13-cv-2568-GPC-WMC 1 C. Leave to Amend 2 The Court finds Plaintiff may be able to cure the above deficiencies by amending 3 her Complaint. DeSoto, 957 F.2d at 658. The Court will therefore grant Plaintiff leave 4 to amend. CONCLUSION & ORDER 5 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Encore’s Motion to Dismiss, (ECF No. 4), is GRANTED; 8 2. Plaintiffs first through sixth causes of action, as asserted against Encore, are DISMISSED WITH LEAVE TO AMEND; 9 10 3. or before February 10, 2014; 11 12 13 14 If Plaintiff wishes to file an amended complaint, Plaintiff shall do so on 4. The hearing on Encore’s Motion to Dismiss, currently set for January 31, 2014, is VACATED. DATED: January 28, 2014 15 16 HON. GONZALO P. CURIEL United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 8 3:13-cv-2568-GPC-WMC
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