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Charlene Probasco v. Iq Data International

May 9, 2011

CHARLENE PROBASCO, PLAINTIFFS,
v.
IQ DATA INTERNATIONAL, ET AL., DEFENDANTS



ORDER

Plaintiff has brought suit for violations of the federal and California Fair Debt Collection Practices Acts, title 15 U.S.C. § 1692, et seq. and Cal. Civ. Code § 1788, et seq., respectively. Defendant has filed a motion to dismiss eight of plaintiff's twelve claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This court found the matter could be resolved without argument and ordered it submitted on the papers.

I. Standards For A Motion To Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," (Fed. R. Civ. P. 8(a)(2)), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" (Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555)), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or as a matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003); Parks School of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).

II. Analysis

Plaintiff alleges that defendant IQ purchased a debt she had incurred, and thereafter:

12. IQ called the Plaintiff numerous times per day in an attempt to collect the Debt with the intent to harass.

13. IQ threatened to falsely report on the Plaintiff's credit report, stating "you won't be able to get a house or a loan."

14. The Plaintiff spoke to a representative from IQ named Jason Edwards. The Plaintiff explained that she did not owe the Debt, and asked "we [Plaintiff] have thirty (30) days to dispute, right? Mr. Edwards then said, "no, we have authority to do what we want."

Complaint (Compl.) ¶¶ 12-14. With these allegations as a backdrop, and incorporating them into her causes of action, plaintiff alleges violations of both the federal and the California (known as the Rosenthal) Fair Debt Collection Practices (collectively, the FDCPA). Defendant alleges that even with the incorporation of these factual allegations into the causes of action, several of the claims are insufficient.

Ultimately, whether conduct violates the federal FDCPA is measured using an objective standard: "whether 'the least sophisticated debtor would likely be misled by a communication.'" Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir. 2010); Arteaga v. Asset Acceptance, LLC., 733 F.Supp.2d 1218, 1231 (E.D. Cal. 2010); Morse v. Dun & Bradstreet, Inc., 87 F.Supp.2d 901, 903 (D. Minn. 2000). See also Brown v. Hosto & Buchan, PLLC, 748 F.Supp.2d 847 (W.D. Tenn. 2010) (test is whether debt collection efforts would "have the natural consequence of harassing, oppressing, or abusing a debtor from an unsophisticated consumer's perspective").

This standard

(1) ensures the protection of all consumers, even the naive and trusting, against deceptive debt collection practices, and (2) protects debt collectors against liability for bizarre or ...


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