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Chaconas v. JP Morgan Chase Bank

May 10, 2010

PETER CHACONAS, LYDIA CHACONAS, PLAINTIFFS,
v.
JP MORGAN CHASE BANK, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Motion to Dismiss and Motion To Strike filed by Defendant JP Morgan Chase Bank ("Chase") on December 22, 2009. (Doc. # 9).

I. Background

On September 30, 2009, Plaintiffs Peter and Lydia Chaconas initiated this action by filing a complaint in the Superior Court of California for the County of San Diego. (Doc. #1 at 6). On November 5, 2009, Defendant Chase filed a Notice of Removal from the Superior Court to this Court. (Doc. # 1). On December 11, 2009, Plaintiff subsequently filed the First Amended Complaint. (Doc. # 14). The Court has federal diversity jurisdiction pursuant to 28 U.S.C. § 1332.

A. Allegations of the First Amended Complaint

On April 25, 2009 Plaintiffs retained an attorney to dispute the validity of a debt Plaintiffs incurred with Chase. (Doc. # 7 ¶ 15-16). Plaintiffs also sought to "end all communications on the debt under the RFDCPA, to eliminate all personal liability on the debt via Title 11 of the United States Code, and ensure that creditors accurately and completely report account information to each credit reporting bureau," such as that the debt was disputed. (Doc. # 7 ¶ 16, 17).

Plaintiffs' attorney sent Chase written "cease and desist orders" on April 30, 2009 and July 10, 2009, advising Chase that Plaintiffs disputed the validity of the debt and that the Plaintiffs were now represented by counsel, and directing Chase to cease all communications with Plaintiffs. (Doc. # 7 ¶ 20). Additionally, the July 10, 2009 cease and desist order notified Chase of the Plaintiffs' medical conditions. (Doc. # 7 ¶ 7). Plaintiff Peter Chaconas is seventy-eight years old and suffers from carpal tunnel syndrome, and Plaintiff Lydia Chaconas is seventy-five years old and suffers from arthritis, acid reflux, insomnia, and is "medically considered to be one-hundred-percent disabled." (Doc. # 7 ¶ 7).

Despite the cease and desist orders, Chase continued to communicate with the Plaintiffs, sending letters and billing statements, and making at least 380 phone calls to Plaintiffs' home from May 2009 to December 2009. (Doc. # 7 ¶ 35-38). On October 19, 2009, Chase also unlawfully contacted Plaintiffs' adult daughter regarding Plaintiffs' account. (Doc. # 7 ¶ 63). Plaintiffs suffered severe emotional distress, which exacerbated Plaintiffs' medical conditions, and on October 25, 2009, Mrs. Chaconas suffered serious physical injuries when she fell on the way to answer the telephone.

The First Amended Complaint alleges ten claims for violations of the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code § 1788, and five additional state law claims including invasion of privacy, negligence, intentional infliction of emotional distress, tort in se, and libel. (Doc. # 7 ¶ 64-204).

B. Motion to Dismiss & Motion to Strike

On December 22, 2009, Chase filed the Motion to Dismiss and Motion to Strike. (Doc. # 9). Chase contends that the Court should dismiss Plaintiffs' claims for invasion of privacy, negligence, intentional infliction of emotional distress, tort in se, and libel pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 9 at 2). Additionally, Chase moves to strike "all requests for non-recoverable [statutory] damages" under the RFDCPA. Chase also moves to strike "portions of the First Amended Complaint that are irrelevant and contradicted by the exhibits attached to the First Amended Complaint." (Doc. # 9 at 2, 6 n.2).

II. Discussion

A. Motion to Dismiss

1. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim to relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a ...


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