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Melissa Murphy v. Stephens & Michaels Associates

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 18, 2011

MELISSA MURPHY,
PLAINTIFF,
v.
STEPHENS & MICHAELS ASSOCIATES, INC.,
DEFENDANT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

In this fair debt collection practices action, Plaintiff claims, among other things, that Defendant repeatedly contacted her ex-boyfriend in an attempt to collect her alleged debt, that Defendant continued this practice even after contacting Plaintiff directly, and that Defendant failed to respond to two letters requesting verification of Plaintiff's debt. In her operative first amended complaint, she alleged that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq. ("Rosenthal Act"). Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff did not allege sufficient facts to satisfy the pleading requirements of Federal Rule of Civil Procedure 8(a)(2). For the reasons which follow, Defendant's motion is DENIED.

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. , 250 F.3d 729, 732 (9th Cir. 2001). "To avoid dismissal under Rule 12(b)(6), a plaintiff must aver in his complaint 'sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009), quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In this regard, the pleading standard of Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Proc. 8(a)(2). The requisite "showing" is not just "a blanket assertion[] of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). Factual allegations in the complaint must provide fair notice of the nature of the claim and grounds on which the claim rests. Id. As long as the complaint meets this standard, it need not include the facts necessary to carry the plaintiff's burden, Al-Kidd, 580 F.3d at 977, or detailed factual allegations, Twombly, 550 U.S. at 555.

Plaintiff alleges a factual basis for relief she seeks under the FDCPA and the Rosenthal Act. Defendant argues that she did not allege facts showing that Defendant does not fall into any of the exceptions to the definition of a "debt collector" under the two statutes and that she did not allege the type of debt Defendant is attempting to collect. Both of the foregoing are facts within Defendant's knowledge. With respect to the type of debt Defendant is attempting to collect, Plaintiff, prior to filing this action, Plaintiff requested Defendant to "send her details regarding the alleged debt via mail." (First Am. Compl. at 3.) See 15 U.S.C. § 1692g(a). After Defendant failed to provide the requested information, Plaintiff's counsel, prior to filing this action, twice sent a letter to Defendant requesting verification of the alleged debt, but Defendant did not respond to either letter. (Id.) Having failed to provide Plaintiff with the requisite information regarding the debt, Defendant cannot complain that Plaintiff did not sufficiently allege it. Moreover, whether Defendant falls within an exception to the "debt collector" definition under 15 U.S.C. Section 1692a is an affirmative defense. See Fox v. Citicorp Credit Serv., Inc., 15 F.3d 1507, 1511-12 (9th Cir. 1994). The burden of pleading affirmative defenses is on the defendant, not the plaintiff. See Fed. R. Civ. Proc. 8(c); see also Jones v. Bock, 549 U.S. 199, 212-13 (2007).

Based on the foregoing, Plaintiff sufficiently alleged her claims to comply with Rule 8(a)(2). Defendant's motion to dismiss is therefore DENIED.

IT IS SO ORDERED.

COPY TO: HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL

20110418

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