UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
January 18, 2011
ENHANCED RECOVERY CORP.; LAW OFFICES OF MITCHELL N. KAY; BUREAU OF COLLECTION RECOVERY T-MOBILE USA, INC.; AND DOES I-X,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
United States District Court For the Northern District of California
ORDER DENYING MOTION TO REMAND; GRANTING T-MOBILE'S MOTION TO DISMISS WITH LEAVE TO AMEND
Currently before the Court are Plaintiff Lorianne Watts's Second Motion to Remand and Defendant T-Mobile's motion to dismiss, or, in the alternative, for summary judgment. Plaintiff, 20 who is represented by counsel, failed to oppose T-Mobile's motion and failed to file a reply in 21 support of her motion to remand. Plaintiff's counsel also did not appear at the motion hearing and 22 case management conference held on January 13, 2011. Having considered the submissions and 23 arguments of the parties, the Court DENIES Plaintiff's motion to remand and GRANTS Defendant T-Mobile's motion to dismiss with leave to amend. 25
This action arises out of attempts by Defendants T-Mobile USA, Inc. ("T-Mobile"), Enhanced Recovery Corp. ("Enhanced Recovery"), Law Offices of Mitchell N. Kay ("Kay"), and Bureau of Collection Recovery ("BCR") to collect a debt of a $404.59 allegedly owed by an 2 individual named Loraine Watis to T-Mobile. FAC ¶¶ 11-13, 31. Plaintiff Lorriane Watts alleges 3 that she was contacted by Defendants Kay and BCR in 2008 regarding this debt. FAC ¶ 11. She 4 alleges further that she informed T-Mobile, Kay, and BCR that she had never had an account with 5 T-Mobile and was not the person responsible for the debt, and she requested that they cease debt 6 collection activity. Id. Defendants Kay and BCR continued to pursue the debt, however, and 7 sometime in or around 2009, Enhanced Recovery allegedly obtained Plaintiff's cell phone number 8 and began making repeated calls to Plaintiff regarding the debt. FAC ¶ 11, 13. Plaintiff claims 9 that despite her persistent efforts to dispute the debt, Defendants' collection efforts and adverse 10 credit reporting did not cease. Id.
Notice of Removal, ECF No. 1. Plaintiff moved to remand the case to state court based on 14 procedural defects in the removal process, but this Court denied Plaintiff's motion, finding removal 15 timely and proper. Order Denying Mot. to Remand, ECF No. 36. The Court then considered 16
Defendant Enhanced Recovery's motion to dismiss three of Plaintiff's state law causes of action 17 for intentional misrepresentation, negligent misrepresentation, and violations of the California 18
Unfair Competition Law, Cal. Bus. & Profs. Code § 17200 et seq. On October 19, 2010, the Court 19 granted the motion to dismiss with leave to amend the dismissed claims. Order Granting Mot. to 20
Although none of Plaintiff's federal causes of action were at issue in the motion to dismiss, when Plaintiff filed a First Amended Complaint ("FAC") on November 17, 2010, she omitted both the 23 dismissed state law causes of action and her federal claims.
California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785.25 et seq.; (3) libel; 27 and (4) invasion of privacy/false light. Plaintiff now moves to remand the action to state court on
Plaintiff filed her original Complaint in state court on April 27, 2010, asserting both state and federal causes of action. Defendants removed the action to federal court on June 14, 2010.
Dismiss Pl.'s Fourth, Fifth, and Eighth Causes of Action with Leave to Amend 6, ECF No. 55.
The complaint as amended alleges four state law causes of action: (1) violations of the California Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq.; (2) violations of the grounds that the Court lacks subject matter jurisdiction because the FAC no longer contains federal 2 claims. In addition, Defendant T-Mobile moves to dismiss Plaintiff's FAC as to T-Mobile only, or, 3 in the alternative, seeks summary judgment as to T-Mobile only, on grounds that none of the 4 causes of action contained in the FAC state a claim against T-Mobile. Pursuant to the case 5 scheduled adopted on September 2, 2010, fact discovery closed on December 6, 2010, and this case 6 is set for trial in April 2011. Minute Order & Case Management Order, ECF No. 37. 7
II.Motion to Remand
A Plaintiff may bring a motion to remand to challenge removal of an action to federal court.
28 U.S.C. § 1447(c). Once the action has been removed, if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case must be remanded. Id. In considering a motion to remand, "jurisdiction must be analyzed on the basis of the pleadings filed 13 at the time of removal without reference to subsequent amendments." Sparta Surgical Corp. v. 14
National Ass'n of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998). "The removal 15 statute is strictly construed, and any doubt about the right of removal requires resolution in favor of 16 remand." Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing 17 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Because of the "strong presumption" 18 against removal jurisdiction, the defendant bears the burden of establishing the facts to support 19 jurisdiction. Gaus, 980 F.2d at 566-67.
the First Amended Complaint no longer contains federal causes of action, and she requests that the Court remand the case to state court on this ground. As an initial matter, the Court notes that it is 24 not divested of subject matter jurisdiction on the basis of Plaintiff's amended complaint. In a 25 removed action, "jurisdiction must be analyzed on the basis of the pleadings filed at the time of 26 removal without reference to subsequent amendments." Sparta Surgical, 159 F.3d at 1213. 27
Plaintiff argues that this Court now lacks subject matter jurisdiction over this action because
Accordingly, "a plaintiff may not compel remand by amending a complaint to eliminate the federal question upon which removal was based." Id. See also Williams v. Costco Wholesale Corp., 471 2 F.3d 975, 976 (9th Cir. 2006) (per curiam) ("We have long held that post-removal amendments to 3 the pleadings cannot affect whether a case is removable, because the propriety of removal is 4 determined solely on the basis of the pleadings filed in state court."). Because the Court has 5 already determined that federal question jurisdiction existed at the time of removal, Order Denying 6
Complaint does not divest this court of subject matter jurisdiction. 8
federal claims from the First Amended Complaint. Although styled as a claim for violations of Mot. to Remand 4, Plaintiff's decision to omit her federal claims from the First Amended
Moreover, as Defendants point out, it is not clear that Plaintiff has in fact omitted all of her
California's Fair Debt Collection Practices Act, Plaintiff's first cause of action contains an allegation that Defendants violated 15 U.S.C. § 1692g(b) by refusing to cease collection activity on a debt disputed by Plaintiff. FAC ¶ 16(c). The Court cannot determine whether (a) retention of 13 this federal claim in the FAC was simply an oversight, (b) Plaintiff intends to allege a violation of Plaintiff intends to allege an independent claim under the federal Fair Debt Collection Practices Act. As Plaintiff's counsel did not file a reply in support of the motion to remand and did not 17 appear at the motion hearing, Plaintiff has waived two opportunities to explain the presence of this 18 federal claim in the FAC. Accordingly, it appears that Plaintiff has conceded that her claim under 15 U.S.C. § 1692g(b) is a federal claim that confers federal question jurisdiction on this Court and 20 prevents remand of the case to state court.
Even if the Court assumes, however, that Plaintiff would be willing to strike the federal allegation from the FAC, the Court agrees with Defendants that remand is not warranted at this 23 stage of the case. As noted above, removal jurisdiction is analyzed at the time of removal, and "a 24 plaintiff may not compel remand by amending a complaint to eliminate the federal question upon 25 which removal was based." Sparta Surgical, 159 F.3d at 1213. Nonetheless, in cases where all 26 federal claims have dropped out and only pendent state law claims remain, a district court has 27 discretion to remand the removed case upon a determination that retaining jurisdiction over the 28 case would be inappropriate. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357 (1988). "A 2 district court's decision whether to exercise [supplemental jurisdiction over state claims] after 3 dismissing every claim over which it had original jurisdiction is purely discretionary." Carlsbad Technology, Inc. v. HIF Bio, Inc., 129 S.Ct. 1862, 1866 (2009). In determining whether remand is 5 appropriate, a district court should consider "the values of judicial economy, convenience, fairness, 6 and comity." Cohill, 484 U.S. at 350. The court should also take into account whether the plaintiff 7 has attempted to manipulate the forum by deleting federal claims, id. at 357, and whether the state 8 claims present novel or complex issues of state law. 28 U.S.C. § 1367(c); see also Holly D. v. California Institute of Technology, 339 F.3d 1158, 1181 n.28 (9th Cir. 2003) (remanding remaining 10 state law claims because they "require[d] multiple decisions on important, unsettled, and policy- Plaintiff's state claims. Plaintiff's case has been in federal court for approximately seven months 14 now. See Schneider v. TRW, Inc., 938 F.2d 986, 994 (9th Cir. 1991) (noting that retention of 15 pendent claims may be appropriate even when case has been in federal court as little as four 16 months). During that time, the Court ruled on three of Plaintiff's state claims, see Order Granting 55, and set a schedule, stipulated to by the parties, that would allow Plaintiff to resolve her case 19 expeditiously in federal court. Under the case schedule, fact discovery closed on December 6, 2010, more than a month ago. Dispositive motions are due by January 20, 2011, two days from 21 now. Trial is set for April 11, 2011, less than three months from now. The Court has also referred 22 the case to court-sponsored mediation, and the parties have selected a mediator. See ADR Clerks
It is true that the Court has not yet ruled on any of the claims in Plaintiff's First Amended Complaint, and in that sense, the Court has not invested extensive resources in the state claims 26 currently alleged. However, Defendant T-Mobile's motion to dismiss the FAC is currently before 27 the Court, and Plaintiff moved for remand only after T-Mobile filed its motion. No party has laden issues of California law").
In this case, the Court believes that the balance of factors favors retaining jurisdiction over Mot. to Dismiss Pl.'s Fourth, Fifth, and Eighth Causes of Action with Leave to Amend 6, ECF No. 18
Notice Appointing Barbara Clay as Mediator, EFC No. 57.
argued that Plaintiff's state claims involve complex or unsettled issues of state law, and the Court 2 has no reason to believe these claims cannot be resolved competently in federal court. Moreover, 3 as this Court has never indicated that Plaintiff's federal claims may lack merit, the Court is 4 concerned that Plaintiff may have dropped her federal claims in an attempt to manipulate the 5 forum. The Court notes, in addition, that Plaintiff has declined to submit arguments as to why the 6 values of judicial economy, convenience, fairness, and comity support a discretionary remand, 7 either in a reply to Defendants' opposition briefs or through argument at the motion hearing. 8
Considering the proximity of trial, the relatively straight-forward
appearance of Plaintiff's
state law claims, and the seven months of federal litigation in this
case, the Court concludes that 10 retaining supplemental jurisdiction
over Plaintiff's state claims will best serve judicial economy,
sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). In considering 16 whether the complaint is sufficient
to state a claim, the court must accept as true all of the factual 17
allegations contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). However, 18 the court need not accept as true
"allegations that contradict matters properly subject to judicial 19
notice or by exhibit" or "allegations that are merely conclusory,
unwarranted deductions of fact, or 20 unreasonable inferences." St.
Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d
1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed
factual allegations, it "must 22 contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its
23 face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when it "allows the court to
draw the reasonable inference 25 that the defendant is liable for the
misconduct alleged." Iqbal, 129 S.Ct. at 1949. If a court grants
convenience, comity, and fairness.*fn1 Accordingly,
the Court DENIES Plaintiff's motion to remand.
III. T-Mobile's Motion to Dismiss
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal a motion to dismiss, leave to amend should be granted unless the pleading could not possibly be 2 cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Act; (2) the third cause of action for libel; and (3) the fourth cause of action for invasion of 7 privacy/false light. T-Mobile argues that none of these causes of action state a viable claim against 8 it. Accordingly, T-Mobile moves to dismiss the entire FAC as against T-Mobile only pursuant to 9
Plaintiff's First Amended Complaint asserts three causes of action against Defendant T-Mobile: (1) the first cause of action for violations of California's Fair Debt Collection Practices Federal Rule 12(b)(6), or, in the alternative, seeks summary judgment in its favor. Plaintiff has not 10 opposed the motion.
1. California Fair Debt Collection Practices Act
Plaintiff's first cause of action alleges two violations of the California Fair Debt Collection Practices Act, also known as the Rosenthal Act, Cal. Civ. Code. §§ 1788 et seq, and a violation of 14 the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692g(b).First, Plaintiff 15 alleges that Defendants violated California Civil Code § 1788.10(c) by making periodic monthly 16 reports to credit reporting agencies that falsely represented that the debt at issue was owed by 17
Plaintiff. FAC ¶ 16(a). As T-Mobile points out, although Plaintiff alleges that BCR and Kay 18 reported adverse credit information to credit reporting agencies, FAC ¶ 11, the amended complaint 19 does not allege that T-Mobile made any communications regarding the purported debt to any credit 20 reporting agencies. Additionally, while the FAC alleges that T-Mobile assigned the underlying 21 debt to BCR, Kay, and Enhanced Recovery, FAC ¶ 12, it does not allege that T-Mobile represented 22 to the other Defendants that the debt belonged to Lorianne Watts, as opposed to Loraine Watis, or 23 otherwise made communications likely to defame Plaintiff. See § 1788.10(c) (prohibiting certain 24 communications that the debt collector should have known would defame the consumer). Thus, 25 the FAC does not establish any factual basis for finding T-Mobile liable under § 1788.10(c).
Second, Plaintiff alleges that Defendants violated California Civil Code § 1788.13(j) by "communicating with plaintiff by false representation that she owed a purported debt incurred by
'Loraine Watis.'" FAC ¶ 16(b). As above, although Plaintiff alleges that BCR and Kay contacted 2 her about the debt in 2008, FAC ¶ 11, and that Enhanced Recovery contacted her about the debt in 2009, FAC ¶ 13, the FAC does not allege that T-Mobile ever communicated with Plaintiff about 4 the alleged debt. Nor does the FAC allege that T-Mobile in any way represented, to Plaintiff or to 5 anyone else, that a legal proceeding would be instituted unless the debt was paid. See Cal. Civ. Code. § 1788,13(j) (prohibiting attempts to collect a debt through false representation that legal 7 proceedings have been or will be instituted if the debt is not paid). Thus, the FAC does not set 8 forth facts sufficient to state a plausible claim against T-Mobile under § 1788.13(j).
collection activity on a debt disputed by Plaintiff.*fn2
To the extent that Plaintiff intends to allege a 11 violation
of federal law, the FAC does not contain any facts suggesting that
T-Mobile is a "debt
1692a(6) (defining "debt collector" to include any person who uses
interstate commerce or the 14 mails "in any business the principal
purpose of which is the collection of any debts, or who 15 regularly
collects . . . debts . . . owed or due another"). A creditor is not a
"debt collector" under 16 the FDCPA unless it uses a name other than
its own so that it appears that a third person is 17 attempting to
collect the debt. Id.; see also Rowe v. Educational Credit Management
Corp., 559 18
Because Plaintiff has not alleged that T-Mobile is the business of collecting debts or has used a 20 name other than its own in collecting its own debts, the FAC does not state a claim against T-21
Mobile under the federal FDCPA. 22 23
Plaintiff has not alleged that T-Mobile was ever engaged in collection activities or, therefore, that it 4 refused to cease collection activities as required after Plaintiff disputed the debt. See 15 U.S.C. 5 § 1692g(b) (where debt is disputed, requiring debt collector to cease collection activities until it 6 obtains and mails a copy of the debt verification to the consumer); FAC ¶¶ 11, 13 (describing 7 collection activities by Defendants BCR, Kay, and Enhanced Recovery). Thus, the FAC does not 8 set forth facts sufficient to state a plausible claim against T-Mobile for violations of 15 U.S.C. 9
Accordingly, Plaintiff's first cause of action for violations of the California Fair Debt Collection claim for libel under California law, a plaintiff must allege "the intentional publication of a 15 statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes 16 special damage." Smith v. Maldonado, 72 Cal. App. 4th 637, 645, 85 Cal. Rptr. 2d 397 (Cal. Ct. App. 1999); see also Cal. Civ. Code §§ 45-46; Cort v. St. Paul Fire and Marine Ins. Companies, Inc., 311 F.3d 979, 985 (9th Cir. 2002). Publication does not require communication to the public 19 at large, but the communication must be made to some third person who understands the 20 defamatory meaning of the false statement. Maldonado, 72 Cal. App. 4th at 645. Plaintiff alleges 21 that Defendants libeled Plaintiff by reporting to credit agencies that that she owed a debt to T-22
Plaintiff's amended complaint alleges, on information and belief, that T-Mobile assigned 24 the purported debt of "Loraine Watis" to BCR, Kay, and Enhanced Recovery. FAC ¶ 12. The FAC does not allege that T-Mobile communicated with credit reporting agencies or had any 26 involvement with the debt collection process beyond its assignment of the debt of "Loraine Watis" 27 to the other Defendants. Although Plaintiff's libel cause of action includes a conclusory allegation
Moreover, to the extent that Plaintiff intends to state a claim under Section 1788.17 of the California Act, which defines "debt collector" more broadly, see Cal. Civ. Code § 1788.2(c), 3 § 1692, either directly under federal law or indirectly as a claim under Cal. Civ. Code § 1788.17.
Practices Act is DISMISSED, with leave to amend, as to Defendant T-Mobile only.
Plaintiff's third cause of action alleges a claim of libel against all Defendants. To state a Mobile that was actually incurred by "Loraine Watis." FAC ¶ 20.
that defendants "either reported or authorized the reporting to
national credit reporting agencies" 2 that Plaintiff owed the debt of
"Loraine Watis," the FAC includes no factual allegations suggesting 3
that T-Mobile authorized or caused the other Defendants to report that
the assigned debt was owed 4 by Plaintiff. Nor does the complaint
contain allegations suggesting that T-Mobile communicated 5 to the
other Defendants that the debt of "Loraine Watis" was actually owed by
Lorianne Watts, and 6 that the other Defendants then republished this
statement. As Plaintiff failed to oppose T-Mobile's 7 motion, she has
raised no argument as to why, based on the limited allegations in the
amended 8 complaint, the court should find it plausible that T-Mobile
intentionally published a defamatory 9 statement about Plaintiff.
Without factual allegations plausibly suggesting that T-Mobile 10
communicated to the other Defendants that Plaintiff owed the assigned
debt or authorized them to report such information to credit reporting
agencies, the FAC is insufficient to state a claim for
libel against T-Mobile. Accordingly, Plaintiff's third cause of
action for libel is DISMISSED, with 13 leave to amend, as to Defendant
Finally, Plaintiff's fourth cause of action alleges invasion of
privacy/false light against all
defendants. The tort of false light invasion of privacy is similar
to libel, except that it requires the 17 invasion of some type of
privacy interest in addition to reputational harm. Cort, 311 F.3d at
Aside from this distinction, "California courts have largely collapsed 'false light' causes of action 19 into libel." Cort, 311 F.3d at 987; see also Aisenson v. American Broadcasting Co., 220 Cal. 20
App.3d 146, 161 269 Cal. Rptr. 379 (Cal. Ct. App. 1990) ("A 'false light' cause of action is in 21 substance equivalent to a libel claim, and should meet the same requirements of the libel claim."). 22
Thus, Plaintiff's cause of action for false light against T-Mobile suffers from the same deficiencies 23 as her libel claim. While the FAC includes allegations suggesting that the other defendants may 24 have made statements to credit reporting agencies that Plaintiff owed a debt to T-Mobile, there are 25 no factual allegations suggesting that T-Mobile made any such statements, either to the credit 26 reporting agencies or to the other Defendants. Plaintiff's allegations are therefore insufficient to 27 state a claim for false light invasion of privacy against T-Mobile. Accordingly, Plaintiff's fourth
3. Invasion of Privacy/False Light
cause of action for invasion of privacy/false light is DISMISSED, with leave to amend, as against T-Mobile only.
As the Court has found that the three causes of action asserted
against T-Mobile fail to state
a claim against T-Mobile, Plaintiff's FAC, as currently pled, does
not contain a plausible basis for 5 relief against this particular
defendant. Accordingly, the Court GRANTS Defendant T-Mobile's 6 motion
to dismiss the entire FAC, with leave to amend, as to T-Mobile only.
Because the Court 7 has granted T-Mobile's motion to dismiss, it does
not reach T-Mobile's alternative motion for 8 summary judgment. 9
For the foregoing reasons, the Court DENIES Plaintiff's motion to remand and GRANTS, with leave to amend, Defendant T-Mobile's motion to dismiss the FAC as to T-Mobile only. The Court recognizes that, under the current case schedule, dispositive motions are due this week.
Accordingly, if Plaintiff wishes to amend her complaint to cure the deficiencies in the allegations 14 against T-Mobile, she is directed to inform Defendants and work with them to stipulate to a revised 15 case schedule that would permit her to file a Second Amended Complaint without unduly delaying 16 the case. If Plaintiff chooses not to pursue her claims against T-Mobile, the Court encourages the 17 parties to stipulate to the dismissal of T-Mobile from the case pursuant to Rule 41(a). 18
IT IS SO ORDERED.