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Lopez v. Rash Curtis & Associates

September 2, 2010


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


The present action arises from a telephone communication between Susan Lopez ("Plaintiff") and Rash Curtis & Associates ("Defendant"). Presently before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendant's Motion to Dismiss will be granted.*fn1


Plaintiff is a consumer who incurred debt. At the time of the telephone communication giving rise to the instant litigation, Plaintiff alleges Defendant either owned the debt or was retained by the owner to collect the debt. Defendant is a debt collector who regularly engages in the business of debt collection.

On January 15, 2010, Defendant telephoned Plaintiff. During this conversation, Plaintiff alleges that Defendant threatened to sue Plaintiff if the debt was not paid, that it would add $10,000 of attorney fees to the debt, and that it would garnish Plaintiff's wages if the debt was not paid.

Plaintiff avers that Defendant had neither the intent nor ability to sue, to garnish wages, or add $10,000 in legal fees. Plaintiff commenced this action on March 12, 2010 alleging Defendant falsely represented the character, amount, and/or legal status of the debt. In her Complaint, Plaintiff alleges both federal and state causes of action: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.; and (2) violation of the California Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788.17, et seq.


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). Federal Rule of Civil Procedure 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 (2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 21 (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").

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 two FDCPA provisions at issue in this case are 15 U.S.C. §§ 1692(e) and 1692(f). Section 1692(e)(2) prohibits "[t]he false representation of...the character, amount, or legal status of any debt," and the threat of an action that cannot legally be taken or is not actually intended. Section 1692(f) prohibits a debt collector from employing any "unfair or unconscionable means to collect or attempt to collect any debt." Whether the alleged conduct violates either of these provisions requires an objective analysis that considers whether "the least sophisticated debtor would likely be misled by [the] communication." Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) (internal quotations omitted).

As a threshold requirement, Plaintiff must allege sufficient facts in her Complaint to establish that Defendant is a "debt collector" as it is defined by the FDCPA. The FDCPA defines "debt collector" as "any person who uses any instrumentality of interstate commerce of the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6); Romine v. Diversified Collection Services, Inc., 155 F.3d 1142, 1145-46 (9th Cir. 1998).

Here, Plaintiff merely makes the conclusory statement that Defendant "is a 'debt collector' as defined by the FDCPA." (Complaint ¶ 7) without providing any substantive facts demonstrating that Defendant is engaged in a business the principle purpose of which is the collection of debts as required under the FDCPA. 15 U.S.C. § 1692a(6). By itself, this statement is not sufficient to state a claim for relief. See Swain v. CACH, LLC, 699 F. Supp. 2d 1109, 1110 (N.D. Cal. 2009). Moreover, Plaintiff has failed to allege any facts describing the contract she supposedly entered, the type of credit she acquired, or any information about the Defendant as creditor. Therefore, this Court cannot determine whether Defendant was a "debt collector" within the meaning of the FDCPA.

Furthermore, threats to sue or of garnishment of wages are only proscribed if they are unlawful, meaning that the threatened action cannot be legally taken or is not intended ...

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