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Rogers v. Bank of America Corp.

September 14, 2010


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


The present action arises from telephone communications between Ernest Scambler ("Plaintiff")*fn1 and Bank of America, N.A. ("Defendant"). Presently before the Court is Defendant's Motion to Dismiss Count I of Plaintiff's First Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. Proc. 12(b)(6)*fn2 . For the reasons set forth below, Defendant's Motion to Dismiss will be granted.


Plaintiff alleges that in July 2008, Defendant began calling him on his cellular telephone. In these calls Defendant would ask to speak with an individual other than the Plaintiff. Each time Defendant called, Plaintiff informed Defendant it had the wrong number and that Plaintiff did not know the individual with whom Defendant wished to speak.

In September 2008, Plaintiff started receiving automated messages from Defendant. These messages stated:

Please contact Bank of America at 866-953-2716, Monday through Friday, from 7:00 a.m. to 7:00 p.m., Central Standard Time. Once again our number is 866-953-2716. Thank you.

(Pl.'s First Am. Compl. ¶ 38.)

Plaintiff claims he contacted Defendant numerous times to request Defendant stop calling his number. Despite his requests, Plaintiff continued receiving automated calls from Defendant. In Count I of the First Amended Complaint*fn4 , Plaintiff alleges that these telephone calls violated the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act").


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 (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).


Plaintiff alleges that Defendant's conduct "constitute[s] numerous and multiple violations of the Rosenthal Act*fn5 ." (Pl.'s First Am. Compl. ¶ 48.) Plaintiff specifically alleges Defendant violated 15 U.S.C. § 1692d (Pl.'s First Am. Compl. ¶ 44.), which is incorporated into the Rosenthal Act through § 1788.17 of the California Civil Code. Section 1698d of Title 15 of the United States Code prohibits a debt collector from engaging in "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt."

The purpose of the Rosenthal Act is "to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts." Cal. Civ. Code § 1788.1(b). The Rosenthal Act defines "debt collector" as "any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection." Cal. Civ. Code § 1788.2(c). The act defines "debt ...

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