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Eduardo Tovar, Individually and On Behalf of All Others Similarly Situated v. Midland Credit Management

April 13, 2011

EDUARDO TOVAR, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
MIDLAND CREDIT MANAGEMENT,
DEFENDANT.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER DENYING DEFENDANT MIDLAND CREDIT MANAGEMENT'S MOTION TO DISMISS

[Doc. No. 5]

This matter is before the Court on Defendant Midland Credit Management's motion to dismiss or stay Plaintiff Eduardo Tovar's complaint on grounds the Federal Communications Commission has primary jurisdiction over issues raised in the Complaint [Doc. No. 5]. Plaintiff filed an opposition to the motion, to which Defendant replied [Doc. Nos. 7 & 8]. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. For the following reasons, the Court DENIES Defendant's motion.

BACKGROUND

In November of 2003, Plaintiff Eduardo Tovar opened a credit card account with Sears. In his application for credit, Plaintiff did not provide Sears with his cellular telephone number, nor did he give prior express consent to Sears to call his cellular telephone with an automatic telephone dialing system using an artificial or prerecorded voice. It was through this transaction that resulted in the alleged debt Plaintiff owed to Sears. Sears then sold the debt in question to Defendant Midland Credit Management.

Thereafter, Defendant repeatedly harassed Plaintiff at all hours on his cellular telephone with an automatic telephone dialing system that used an artificial or prerecorded voice for non-emergency purposes. Plaintiff did not provide his cellular telephone number to Defendant, nor did he expressly consent to telephone calls made to his cellular telephone.

On December 17, 2010, Plaintiff filed a class action lawsuit against Defendant on behalf of himself and others similarly situated. Plaintiff brings two causes of action against Defendant, claiming that it negligently and willfully violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. section 227. On January 10, 2011, Defendant filed the instant motion to stay or dismiss Plaintiff's complaint as to all causes of action.

DISCUSSION

1. Request for Judicial Notice

a) Legal Standard

Generally, in determining whether a complaint should be dismissed, a court may not look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). However, there are exceptions in which a court may consider extrinsic evidence without converting the motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Judicial notice may be taken of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201. Additionally, a court may take judicial notice of "matters of public record." Lee, 250 F.3d at 689.

b) Analysis

In support of its motion to dismiss or stay, Defendant requests the Court take judicial notice of seventeen documents: (1) Notice or Proposed Rulemaking, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (proposed Jan. 22, 2010); (2) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd 8752 (1992); (3) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd 12391 (1995); (4) 137 Cong. Rec. S16204-01 (daily ed. Nov. 7, 1991); (5) 137 Cong. Rec. H11307-01 (daily ed. Nov. 26, 1991); (6) Excerpts from In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014 (2003); (7) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd 559 (2008); (8) Department of Education Comments on Proposed Changes to FCC Regulations; (9) Comment to Proposed Amendments to the Telephone Consumer Protection Act Regulations, Department of the Treasury (May 20, 2010); (10) ACA International's Comment to Proposed Amendments to the Telephone Consumer Protection Act Regulations (May 21, 2010); (11) Comments of the National Retail Federation (May 21, 2010); (12) Letter from Rep. Jim Matheson, et. al., to the FCC (Dec. 3, 2010);

(13) Comments of JP Morgan Chase & Co. (May 21, 2010); (14) Comments of the Financial Services Roundtable, The American Bankers Association, and the Consumer Bankers Association (May 21, 2010); (15) Comments of Wells Fargo & Co. (May 21, 2010); (16) ACA International's Reply Comment to Proposed Amendments to the Telephone Consumer Protection Act Regulations (June 21, 2010); (17) Letter from Sen. Robert Bennett, et. al., to the FCC ...


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