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Parker v. CMRE Financial Services

November 5, 2007


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Defendant CMRE Financial Services, Inc. ("CMRE") moves to dismiss the Fair Debt Collection Practices Act ("FDCPA") claim under Rule 12(b)(6) on the ground that its statutory notice complied with governing legal principles as a matter of law. Plaintiff Mary T. Parker ("Ms. Parker") opposes the motion and separately moves, pursuant to Rule 12(f), to strike portions of CMRE's reply brief. By stipulation, on September 14, 2007 defendant Paradise Valley Hospital was dismissed as a party; and defendant San Diego Research Center, Inc. did not file a response to the motions. Pursuant to Local Rule 7.1(d)(1), these matters are appropriate for decision without oral argument. For the reasons set forth below, the court dismisses the only federal claim, declines to exercise supplemental jurisdiction over the state law claims, and denies Ms. Parker's Rule 12(f) motion. The Clerk of Court is instructed to close the file for lack of subject matter jurisdiction over the action.


Plaintiff commenced this federal question action on July 18, 2007 alleging a single federal claim against CMRE only for violation of FDCPA. Plaintiff also alleges state law claims for negligence and violation of the Rosenthal Fair Debt Collection Practices Act, Cal. Civ.Code §§1788-1788.32. Plaintiff alleges that the court has supplemental jurisdiction to entertain the state law claims alleged against all Defendants. Pertinent to Ms. Parker's claims against CMRE, Plaintiff alleges that defendant Paradise assigned a debt for collection to CMRE, a company in the business of collecting debts. (First Amended Complaint, "FAC," ¶ 41). Plaintiff alleges that CMRE violated the FDCPA by providing a notice that did not comply with the statutory notice provisions of 15 U.S.C. §1692g(a)(4). (FAC ¶¶ 46-48; Oppo at pp. 3-7). In pertinent part, the notice provides:

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor. (FAC, Exh. 1).

CMRE moves to dismiss the FDCPA claim on the ground that the disputed notice, attached as an exhibit to the FAC, complies with the statutory notice requirements as a matter of law. Plaintiff opposes the motion.

The Motion to Dismiss

Legal Standards

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, __550 U.S. __, 127 S.Ct. 1955 (2007). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).

The Motion

The sole issue is whether the statutory notice provided by CMRE complies with the notice provisions of 15 U.S.C. §1692g(a)(4), which provide:

(a) Notice of debt; contents connection with the collection of any

Within five days after the initial communication with a consumer in debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the ...

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