The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Granting in Part and Denying in Part Motion to Dismiss [Doc. No. 3]
Plaintiff Robert Adams has filed a Complaint alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. and the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), California Civil Code §§ 1788-1788.32. Defendant CIR Law Offices moves the Court to dismiss the Complaint in its entirety. Plaintiff has filed an opposition and Defendant has filed a reply.
The Court found Defendant's motion appropriate for submission on the papers and without oral argument and the hearing date was previously vacated. For the reasons set forth herein, the Defendant's motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff is an individual allegedly obligated to pay a consumer debt. [Complaint, ¶ 9.] Defendant is a debt collection law firm in San Diego. [Complaint, ¶ 11-13.] Plaintiff's alleged debt was assigned to Defendant for collection. [Complaint, ¶ 20.]
On March 8, 2007, Defendant sent a collection letter to Plaintiff at his home. [Complaint, ¶ 21, Exhibit 1.] On March 14, 2007, Plaintiff sent a letter to Defendant disputing the validity of the debt and advising Defendant to cease all communication with him except to verify the debt. [Complaint, ¶¶ 24-25, Exhibit 2.] Defendant received Plaintiff's letter on March 19, 2007. [Complaint, ¶ 26.]
On March 21, 2007, Defendant send Plaintiff a second dunning letter. [Complaint, ¶ 27, Exhibit 3.] Defendant's March 21, 2007 letter stated that because Plaintiff had not cooperated with efforts to resolve the debt, "our law office will likely commence judicial action seeking legal remedies pertaining to satisfaction of your indebtedness." Defendant also advised Plaintiff "[f]ailure to hear from you within 5 days may require us to pursue other collection remedies on behalf of our client." [Complaint, Exhibit 3.]
Plaintiff filed this action on June 7, 2007, alleging Defendant's debt collection actions violated 15 U.S.C. §§ 1692g, 1692c(c), and 1692e, as well as Cal. Civ. Code §§ 1788.13(j) and 1788.17. [Complaint, ¶¶ 23-24, 28-29, 31-33.]
Under Fed. R. Civ. P. 12(b)(6), the court should not dismiss the complaint "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim would entitle the plaintiff to relief.'" Hydrick v. Hunter, 466 F.3d 676, 686 (9th Cir. 2006) (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002)). Generally, the court should only consider the pleadings and not any extraneous materials. Shaver v. Operating Engineers Local 428, 332 F.3d 1198, 1201 (9th Cir. 2003). However, in ruling on a motion to dismiss under Rule 12(b)(6), the court may consider material which is properly submitted as part of the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
1. 15 U.S.C. §§ 1692g and 1692c(c)
Plaintiff alleges the Defendant's March 8, 2007 letter violated § 1692g(a) by failing to include all of the notices required by that section. [Complaint, ¶ 23.] Plaintiff further alleges Defendant's March 21, 2007 letter violated § 1692g(b) because Defendant failed to verify his debt pursuant to his request. [Complaint, ¶¶ 24-28.] Finally, Plaintiff alleges the March 21, 2007 letter violated § 1692c(c) because the Defendant failed to cease communications pursuant to his request. [Complaint, ¶ 29.] Section 1692g provides, in pertinent part, as follows:
(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has ...