UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
June 10, 2010
PAMELA PFITZER ALSO KNOWN AS PAMELA EBERT, PLAINTIFF,
BENEFICIAL CALIFORNIA, INC.; AND DOES 1-10 INCLUSIVE, AND MANN BRACKEN, LLP, DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MEMORANDUM AND ORDER
Plaintiff Pamela Pfitzer ("Plaintiff") seeks monetary relief from Defendants for alleged violations of the federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., and the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
Presently before the Court is a Motion by Beneficial California, Inc. ("Defendant") to Dismiss Plaintiff's Second Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendant's Motion is granted.*fn1
On August 21, 2006, Defendant mailed to Plaintiff a pre-screened credit line offer of $8,000.00 with an initial check of $7,000.00. Plaintiff entered into contract with Defendant, and by 2008 the balance due on the credit line, including fees and interest, was $9,551.53.
Plaintiff alleges that Defendant failed to provide required disclosures prior to the consummation of the transaction, in violation of the federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1638(b). Specifically, Plaintiff alleges that Defendant failed to provide such disclosures clearly and conspicuously in writing as mandated by 15 U.S.C. § 1632(a), Defendant failed to properly identify property subject to a security interest as mandated by 15 U.S.C. § 1638(a)(9), and Defendant failed to advise Plaintiff that in the event of a default, Defendant would record a judgment against any property owned by Plaintiff.
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"). A court is not required to accept as true a legal conclusion couched as a factual allegation. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
The only cause of action specifically alleged against Defendant is Plaintiff's claim for violation of TILA. On March 19, 2010 this Court granted Defendant's Motion to Dismiss to Plaintiff's First Amended Complaint (Docket No. 25) on the grounds that the TILA claim was time-barred and Plaintiff failed to demonstrate the due diligence necessary to warrant an application of equitable tolling.
Plaintiff's Second Amended Complaint, as well her Opposition to Defendant's Motion to Dismiss, again fails to demonstrate sufficient due diligence.
Equitable tolling may only serve to suspend the statute of limitations in circumstances where a plaintiff has established "excusable delay" through a showing of "fraudulent conduct by the defendant resulting in concealment of the operative facts, failure of the plaintiff to discover the operative facts that are the basis of its cause of action within the limitations period, and due diligence by the plaintiff until discovery of those facts." Federal Election Com'n v. Williams, 104 F.3d 237, 240-41 (9th Cir. 1996).
Here Plaintiff argues, as she did previously, that Defendant's failure to disclose critical terms prevented her from discovering various provisions regarding her debt. However this explanation is insufficient to belie an application of equitable tolling. Plaintiff must not only show "concealment of operative facts," but also "due diligence by the plaintiff until discovery of those facts." The doctrine of equitable tolling does not require that Plaintiff be "psychic," as Plaintiff's Opposition suggests, but rather it requires some level of inquiry or modicum of effort to unearth the operative facts that now serve as the basis of Plaintiff's suit. Plaintiff has failed to show active concealment of facts by the Defendant or even a scintilla of due diligence on her own part.
The excuses provided are not grounds upon which the Court can equitably rescue Plaintiff's claim from late filing. Equitable tolling will not be applied, and thus the statute of limitations period has expired. Defendant's Motion to Dismiss Plaintiff's TILA claim is granted.
Furthermore, the Court rejects Plaintiff's attempt in her Opposition to allege a claim for violation of the Federal Debt Collection Practices Act ("FDCPA") against Defendant on the theory of agency. Plaintiff's Complaint specifically names Mann Bracken as the alleged defendant for the FDCPA claim and names Beneficial California, Inc. as the named defendant on the TILA claim. Plaintiff may not subsequently seek to alter her Complaint through theories argued in opposition to a Motion to Dismiss.
Finally, Plaintiff has filed a surreply (Docket No. 32) without leave of Court. Plaintiff does not have a right to file a surreply under the Local Rules or Federal Rules of Civil Procedure and Plaintiff did not obtain leave of Court to do so. See Thompson v. Reynoso, No. 1:04-cv-06755, 2009 WL 1924754, at *1 (E.D. Cal. July 2, 2009); Adams v. Kernan, No. 2:07-cv-00707, 2009 WL688639, at *3 (E.D. Cal. Apr. 13, 2007). Because Plaintiff is not authorized to file a surreply, Defendant's Motion to Strike is granted. Accordingly, Plaintiff's surreply is not considered herein.
As this is Plaintiff's third unsuccessful attempt to state a claim against Defendant, Defendant's Motion to Dismiss (Docket No. 20) is GRANTED without leave to amend. Defendant's Motion to Strike (Docket No. 33) is GRANTED.
The Clerk is directed to terminate Defendant Beneficial California, Inc.
IT IS SO ORDERED.