UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
June 13, 2011
BRONSON, CAWLEY, & BERGMANN,
The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(b)(6) [Doc. No. 7]
Plaintiff Melissa Murphy ("Murphy") filed the Amended Complaint in this action on December 6, 2010 [Doc. No. 5]. The Amended Complaint alleges violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (1977) ("FDCPA"), and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. (2009) ("RFDCPA"), against Defendant Bronson, Cawley, & Bergmann, LLP ("Bronson"), a law firm engaged in the business of debt collecting. (Am. Compl. 1-2.) On December 7, 2010, Defendant filed a Motion to Dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [Doc. No. 7]. Plaintiff submitted a Response to Defendant's Motion to Dismiss ("Opposition") on December 27, 2010 [Doc. No. 9]. On December 29, 2010, Defendant filed a Memorandum of Points and Authorities in Reply to Opposition to Defendant's Motion to Dismiss the First Amended Complaint ("Reply") [Doc. No. 10]. For the reasons stated below, the Motion to Dismiss the Amended Complaint is GRANTED.
Plaintiff is a resident of San Diego County in the State of California. (Am. Compl. 2, Doc. No. 5.) She alleges that she is a "consumer" as defined by the FDCPA, and a "debtor" as defined under the RFDCPA. (Id.) Plaintiff further alleges that Defendant "was a company engaged, by use of the mails and telephone, in the business of collecting a debt from Plaintiff which qualifies as a 'debt,' as defined by 15 U.S.C. § 1692a(5), and a 'consumer debt,' as defined by Cal. Civ. Code § 1788.2(f)." (Id.) According to Plaintiff, "Defendant regularly attempts to collect debts alleged to be due another, and therefore is a 'debt collector' as defined by the FDCPA . . . and RFDCPA . . . ." (Id.)
Plaintiff claims that "at various and multiple times prior to the filing of the instant complaint, including within the one year preceding the filing of the this complaint, Defendant contacted Plaintiff in an attempt to collect an alleged outstanding debt." (Id.) Specifically, Plaintiff states, "On or about June 25, 2010, Defendant sent Plaintiff a collection letter, written from a law firm letter head but then stating that no attorney has reviewed the file" ("June 25 Letter"). (Id. at 2-3.) Plaintiff attached a copy of the June 25 Letter to the Amended Complaint and marked it as Exhibit "A".
The June 25 Letter is on letterhead stationary listing "Bronson, Cawley & Bergmann, LLP, Attorneys at Law (a limited liability partnership formed in the State of New York)" at the top center, along with an address, telephone, and fax numbers. (Id.) The words "L. Patrick Bergmann**" appear on the top-left side of the letter, with "**Admitted in NY, NJ" printed on the opposite side of the page.
The subject heading lists: 1) the creditor, Cavalry Portfolio Services, LLP; 2) the file and account numbers; 3) the original creditor, Navy FCU; and 4) the amount due. (Id.) Directly to the right of the subject heading is the phrase, "Attorneys Licensed In:" with the states Illinois, Maryland, New Jersey, New York, Pennsylvania, and Vermont listed below those words. The body of the letter reads as follows:
This office has been retained to collect a debt owed by you to CAVALRY PORTFOLIO SERVICES, LLP. Unless you, the consumer, within thirty days after receipt of this notice, dispute the validity of the debt or any portion thereof, this office will assume this debt is valid.
If you, the consumer, notify us in writing within the thirty-day period that the debt, or any portion thereof, is disputed we will obtain verification of the debt or a copy of a judgment against you and a copy will be mailed to you by our office.
Upon your written request within the thirty-day period, we will provide you with the name and address of the original creditor, if different from the current creditor.
Please note that no attorney with our firm has personally reviewed the particular circumstances of your account.
Please call your office without delay. The toll free number is 888-523-0856.
L. Patrick Bergmann, Esq.
This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose.
As required by law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfil the terms of your credit obligations. The state Rosenthal Fair Debt Collection Practices Act and the federal Fair Debt Collection Practices Act require that, except under unusual circumstances, collectors may not contact you before 8 a.m. or after 9 p.m. They may not harass you by using threats of violence or arrest or by using obscene language. Collectors may not sue false or misleading statements or call you at work if they know or have reason to know that you may not receive personal calls at work. For the most part, collectors may not tell another person, other than your attorney or spouse, about your debt. Collectors may contact another person to confirm your location or enforce a judgment. For more information about debt collection activities, you may contact the Federal Trade Commission at 1-877-FTC-HELP or www.ftc.gov.
Plaintiff contends that the June 25 Letter "fails to identify any members of Defendant's law firm who are licensed to practice law in the state of California, leading Plaintiff to believe that she is being contacted by a law firm with the ability to practice in this state." (Am. Compl. 3, Doc. No. 5.) Plaintiff further maintains that "no members of Defendant's law firm are licensed to [p]ractice [l]aw in this state." (Id.)
Based on these allegations, Plaintiff asserts that Defendants have violated the FDCPA and the RFDCPA by:
a) Falsely representing that an individual is an attorney, including, but not limited to, leading Plaintiff to believe Defendant is licensed in California when they are not (§ 1692e(3));
b) Falsely representing that any person is an attorney or counselor at law, including, but not limited to, leading Plaintiff to believe Defendant is licensed in California when they are not (Cal[.] Civ[.] Code § 1788.13(b)); and
c) Using false representations and deceptive practices in connection with collection of an alleged debt from Plaintiff, including, but not limited to, sending a letter from a law firm letter head but then stating that no attorney as reviewed the file (§ 1692e(10)[)]. Plaintiff requests a declaratory judgment that Defendant's conduct violated the FDCPA and RFDCPA, actual damages, statutory damages, costs and attorney's fees, and "any further relief that may be just and proper." (Id. at 3-5.)
THE MOTION TO DISMISS
Defendant asserts that Plaintiff's claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. Dismiss Attach. #1 Mem. P. & A. 4-5, Doc. No. 7.) According to Defendant, "[T]he [Amended Complaint] does not allege any facts supporting any cause of action against Bronson." (Id.) He argues, "The allegations in the [Amended Complaint] consist simply of legal conclusions that are not supported by any facts and which are directly contradicted by the letter from Bronson to Plaintiff . . . ." (Id.) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Additionally, Defendant claims that Plaintiff's assertion that Defendant law firm falsely represented itself as employing licensed attorneys cannot be true because the signor of the June 25 letter, Mr. Bergmann, is in fact a licensed attorney in the state of New York.*fn1 (See Mot. Dismiss Attach. #1 Mem. P. & A. 4-6, Doc. No. 7.)
Defendant also argues in the Motion to Dismiss that Plaintiff's allegations in the Amended Complaint cannot survive as a matter of law. (Id. at 5-9.) First, Defendant maintains that the June 25 letter does not violate any debt collection laws. (Id. at 6.) According to Defendant, the June 25 Letter "contains no threats of litigation and makes it clear to Plaintiff that no attorney has reviewed her account prior to writing the letter." (Id. at 8) (citing Depuy v. Weltman, Wienberg, & Reis Co., 442 F.Supp.2d 822, 825 (N.D. Cal. 2006); Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 363 (3d Cir. 1993) (holding that a collection letter on law firm letterhead that included a clear disclaimer stating that "[a]t this time, no attorney with this firm has personally reviewed the particular circumstances of your account," did not misrepresent the nature of attorney involvement)). Second, Defendant argues that the "letter sent to Plaintiff would not lead the least sophisticated debtor to believe that Bronson is licensed to practice law in the state of California." (Id.) (citing Donahue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir. 2010) ("Whether conduct violates §§ 1692e . . . requires an objective analysis that takes into account whether the least sophisticated debtor would likely be misled by a communication.") (internal quotes omitted)). According to Defendant, Plaintiff's claim that the letter's failure to identify any attorneys licensed in California lead Plaintiff to believe that the firm had attorneys licensed in California is a "'bizarre or idiosyncratic interpretation'" of a debt collection letter. (Mot. Dismiss Attach. #1 Mem. P. & A. 10, Doc. No. 7) (quoting Greco, 412 F.3d at 363).
In the Opposition, Plaintiff reiterates her assertion that Defendant is on notice of the instant claim, and that the facts alleged state a claim for relief. (Opp'n 3, Doc. No. 9.) Plaintiff asserts that Defendant's arguments in support of the Motion to Dismiss only serve as evidence that Defendant is sufficiently noticed of Plaintiff's claims, thereby satisfying federal pleading requirements. (Id.) (citing Twombly, 550 U.S. at 555) (stating that pleadings must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests"). Additionally, Plaintiff argues that Defendant's Motion to Dismiss and attachments "raise arguments which essentially argue that the facts of this case are not good enough[,] which is procedurally improper for a motion to dismiss." (Opp'n 3, Doc. No. 9.) Plaintiff further asserts that the language used in the June 25 Letter is sufficient to show a threat of litigation, citing a case from the Northern District of California in support. (Id. at 5-7) (citing Robertson v. Richard J. Boudreau & Assocs., LLC, 2009 WL 5108479 (N.D. Cal. Dec. 18, 2009). In Robertson, Plaintiff notes, the court distinguished Greco on the basis that the Robertson letter, unlike the Greco letter, contained threatening language that "overshadowed and contradicted" the disclaimer that no attorney had reviewed the file. (Id. at 6); Robertson, WL 5108479, at *6. Concurrent with the Opposition brief, Plaintiff filed a request that the Court take judicial notice of the Robertson decision cited above. (Opp'n Attach. #1 Ex. Req. Judicial Notice, Doc. No. 9-1.) Plaintiff also argues that if Defendant's Motion is granted, the Court should grant leave to amend. (Opp'n 9, Doc. No. 9.)
In its Reply, Defendant rejects Plaintiff's contention that the Amended Complaint has sufficiently plead a claim for relief, arguing that "Plaintiff has simply not alleged -and cannot allege -facts that demonstrate that she has a plausible claim against Defendant in this lawsuit." (Reply 2, Doc. No. 10.) Also, Defendant distinguishes Robertson from this case because the defendants in that case had sent three letters to the plaintiff (whereas only one was sent in this case) and the letter in that case not only referred to "retaining" the attorneys but also contained language expressly referring to litigation, such as "valid legal defense," "cost of litigation," and "non-litigious resolution." (Id. at 3.) According to Defendant, the Robertson court "acknowledges that simply sending a letter on the letterhead of a law firm does not violate the FDCA." (Id. at 3-4.) Defendant further asserts that Grecco has been followed by a number of district courts in California, including most recently in Walsh v. Frederick J. Hanna & Assoc's, 2010 WL 5394624 (E.D. Cal. Dec. 21, 2010). Defendant requests judicial notice of the Walsh order.*fn2 (Reply Attach. #1 Req. Judicial Notice, Doc. No. 10-1.) Finally, Defendant argues that Plaintiff should not be given leave to amend because the letter does not violate any debt collection laws. (Reply 6, Doc. No. 10.)
A. Rule 12(b)(6)
Under Fed. R. Civ. P. Rule 8(a), a plaintiff must plead her claim with sufficient specificity to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 544. "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). For purposes of a motion to dismiss, the plaintiff's allegations are taken as true, and the court must construe the complaint in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411 (1969). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ------ U.S. ------, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868; Twombly, 550 U.S. at 556, 570. Thus, a court need not accept as true conclusory allegations, unreasonable inferences, legal characterizations, or unwarranted deductions of fact contained in the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754--55 (9th Cir. 1994).
Under Rule 12(b)(6), if "matters outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." Fed. R. Civ. P. 12(b). However, in ruling on a 12(b)(6) motion, a court may consider allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice. Swartz v. KPMG, LLP., 476 F.3d 756, 763 (9th Cir. 2007). Thus, the June 25 Letter and judicial notice of Mr. Bergmann's status as an attorney are not matters outside the pleading and do not require this Motion to be treated as one for summary judgment.
A. The FDCPA and the RFDCPA
In light of the "abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors[,]" 15 U.S.C. § 1692a, Congress enacted the FDCPA in 1977 "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). To accomplish this goal, the FDCPA prohibits debt collectors from "using any false, deceptive or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e; see also 15 U.S.C. § 1692e(10) (prohibiting "[t]he use of any false representation or deceptive mans to collect or attempt to collect any debt or to obtain information concerning a consumer").
In addition to this general prohibition, § 1692e prohibits specific types of conduct that are deemed to be false, deceptive or misleading, including "[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney," 15 U.S.C. § 1692e(3), or "[t]he threat to take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. § 1692e(5). In considering whether a statement in a debt collection letter violates these prohibitions, courts apply the "least sophisticated debtor standard." Depuy, 442 F.Supp.2d at 824 (citing Wade v. Reg'l Credit Ass'n, 87 F.3d 109, 1100 (9th Cir. 1996)). "Under that standard, if the court finds the least sophisticated debtor 'would likely be misled' by a debt collection letter, the court 'must hold the [defendant] has violated the [FDCPA].'" Id. (quoting Swanson v. S. Oregon Credit Serv., 869 F.2d 1222, 1225 (9th Cir. 1988)).
"In order for a plaintiff to recover under the FDCPA, there are three threshold requirements: (1) the plaintiff must be a 'consumer'; (2) the defendant must be a 'debt collector'; and (3) the defendant must have committed some act or omission in violation of the FDCPA." Robinson v. Managed Accounts Receivable Corp., 654 F.Supp.2d 1051, 1057 (C.D. Cal. 2009). Defendants challenge only the sufficiency of Plaintiff's allegations as to the third requirement. (See Mot. Dismiss Attach. #1 Mem. P. & A. 1, Doc. No. 7.)
The RFDCPA is California's version of the FDCPA; it "either mimics the relevant provisions of the FDCPA or incorporates them by reference." Riggs v. Prober & Raphael, 2010 WL 3238969, at *3 (N.D. Cal. August 16, 2010); see Cal. Civ.Code. § 1788.17. Thus, district courts analyze FDCPA and RFDCPA claims identically. See Taylor, 2011 WL 1303430, at *2 n.2; Walsh, 2010 WL 5394624, at Riggs, 2010 WL 3238969, at *3.
B. Claims Under the FDCPA
Plaintiff asserts that Defendant "argue[s] that the facts of this case are not good enough[,] which is procedurally improper for a motion to dismiss." (Opp'n 3, Doc. No. 9.) Plaintiff claims that it is enough to put the Defendant on notice of the claims against him to survive a Rule 12(b)(6) motion. (Id. at 3-4.) However, "for a complaint to survive a [Rule 12(b)(6)] motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). In the Ninth Circuit, the question of whether a collection letter violates the FDCPA is a question of law. See Terran v. Kaplan, 109 F.3d 1428, 1432 (9th Cir. 1997). Thus, district courts in the Ninth Circuit have addressed whether language in a collection letter violates the FDCPA in evaluating a motion to dismiss. See Taylor, 2011 WL 1303430, at *6 (evaluating whether a collection letter violates the FDCPA and listing other district court cases that evaluated FDCPA violations at dismissal stage). Here, the only factual allegations that might plausibly suggest a claim entitling Plaintiff to relief arise out of the June 25 Letter. That letter was attached to the Amended Complaint and may be considered by the Court. (Am. Compl. Attach. #1 Ex. "A."); Swartz, 476 F.3d at 763. Therefore, the Court will address the question of whether the June 25 Letter violates the FDCPA.
C. False Representation of Attorney Involvement
Plaintiff argues that the June 25 Letter falsely represents attorney involvement in a debt collection activity because it lead Plaintiff "to believe that she is being contacted by a law firm with the ability to practice in [California]," despite the fact that no members of Defendant's law firm are licensed to practice law in California. (Am. Compl. 3, Doc. No. 5.) However, this argument and Plaintiff's allegations do not plausibly suggest that Plaintiff has stated a claim or could state a claim under § 1692e(3), or § 1692e(10). Attorneys may participate in the debt collection process without violating the FDCPA as long as their status as attorneys is not misleading to debtors. Greco, 412 F.3d at 363. A collection letter misleads a debtor as to an attorney's status when the letter "appear[s] to be sent by an attorney without the attorney's having both reviewed the debtor's file and gained some knowledge about the specific debt." Irwin v. Mascott, 112 F.Supp.2d 937, 949 (N.D. Cal. 2000) (citing Newman v. Checkrite, 912 F.Supp. 1354, 1382 (E.D. Cal. 1995)). The use of an attorney's letterhead and signature on a collection letter is "sufficient to give the least sophisticated consumer the impression that the letters [are] communications from an attorney." Depuy, 442 F.Supp.2d at 825 (citing Clomon v. Jackson, 988 F.2d 1314, 1320-21 (2d Cir. 1993)).
A collection letter from an attorney that contains a disclaimer, however, may not violate the FDCPA if the least sophisticated consumer, reading the letter, would understand that the attorney had not reviewed the facts of his or her case. See Greco, 412 F.3d at 363. In Greco, the Second Circuit held as a matter of law that a collection letter was not deceptive or misleading, even though it was printed on law firm stationary and signed by a law firm, because it contained a disclaimer stating that "[a]t this time, no attorney with this firm has personally reviewed the particular circumstances of your account."
Plaintiff points out, though, that an express disclaimer like the one in Greco does not guarantee that a collection letter is not deceptive. (Opp'n 6-9, Doc. No. 9); see Robertson, 2009 WL 5108479; Dunn v. Derrick E. McGavic, 653 F.Supp.2d 1109 (D.Or. 2009). In Dunn, the court found that a collection letter violated the FDCPA when the language in the collection letter contradicted the disclaimer. Dunn, 653 F.Supp.2d at 1113-14. Relying on Dunn, Judge Zimmerman in Robertson distinguished Greco, finding that a collection letter violated the FDCPA because the language in the letter contradicted the disclaimer that no attorney had reviewed the file. Robertson, 2009 WL 5108479, at *2-3. The court in Robertson explained:
I find that all three of the letters deceptively imply attorney involvement. Each letter is printed on defendant's letterhead, which states "Attorneys at law" and is signed "Richard J. Boudreau & Associates, LLC." Although using attorney letterhead alone may not violate the FDCPA, the legal language in each letter crosses the line. The first letter opens with "This law firm has been retained" (emphasis added) which is language that suggests that it is from an attorney hired to do legal work. The first and second letters also state that the law firm's "review will determine whether there is a valid legal dispute regarding the debt . . . ." (Emphasis added). The third letter contains language such as "valid legal defense," "cost of litigation," and "non-litigious resolution."
The disclaimer in the middle of each letter that "no attorney with this firm has personally reviewed the particular circumstances of your account" is contradicted and overshadowed by the rest of the language in each letter, which would suggest to the least sophisticated consumer that the letter was from an attorney . . . .
Defendant's reliance on Greco is unpersuasive. [citation omitted] . . . First, Greco is not controlling in this jurisdiction. More importantly, the brief Greco letter does not contain any of the threatening language in defendant's letters and appended a statement of the debtor's rights that fairly tracked the FDCPA. The Greco letter does not use language like "litigation" or "any valid legal defense" or any of the inconsistent language this letter contains . . . . Finally, in Greco, the defendant sent only one letter, whereas in this case defendant sent three successive letters to plaintiff." at *2.
This Court agrees with the Robertson court that Greco is not controlling, but nevertheless finds persuasive. Because the Ninth Circuit has not ruled on the issue of whether a collection letter signed by an attorney may be misleading, many district courts have adopted the approach of Greco and Clomon. Taylor, 2011 WL 1303430, at *8; see e.g. Walsh, 2010 WL 5394624, at *3 (dismissing on a Rule 12(b)(6) motion FDCPA claim based on alleged false representation of attorney involvement where collection letter, though printed on attorney letterhead, contained disclaimer stating that an attorney had not reviewed the matter, because least sophisticated consumer would have understood that attorney had not reviewed the specific facts of the case, citing Greco and Clomon); Depuy, 442 F.Supp.2d at 825 (denying motion under Rule 12(b)(6) to dismiss FDCPA claim based on alleged false representation of attorney involvement where letter was on law firm letterhead and did not contain disclaimer stating that attorney had not reviewed the matter, citing Greco and Clomon).
Therefore, the question before this Court is whether the language in the June 25 Letter contradicts or overshadows the disclaimer stating that no attorney had reviewed the file, misleading the least sophisticated consumer. See Depuy, 442 F.Supp. at 824. Recently, a Northern District of California court decided a case nearly identical to the one here. See Taylor, WL 1303430. In a persuasively written opinion, Judge Spero found that a collection letter on law firm letterhead, signed by an attorney, with a substantially similar disclaimer to the one in this case, did not violate the FDCPA. Taylor, 2011 WL 1303430, at *10.
The Court concludes that the least sophisticated debtor, reading the letter sent by Defendant in this case, would understand that the attorney who signed the letter had not reviewed the specific facts of the case. The letter is short and straightforward, like the letter in Greco, and it does not refer to "claims" or "litigation," or use any other language that suggests impending litigation. It also includes a standard FDCPA validation notice that accurately sets forth the debtor's right to challenge the underlying debt. Nor does the Court find that the statement in the June 28 letter that Hecker "represents" Defendant is sufficient to overshadow the letter's disclaimer; although Judge Zimmerman relied, in part, on the statement in the collection letters in Robertson that "[t]his law firm has been retained" in support of his conclusion that the letters deceptively implied attorney involvement, the facts of that case were distinguishable because the letters (there were three rather than just the one letter at issue here) contained other language suggesting "impending legal action." (citing Robertson, 2009 WL 5108479, at *2).
Here, like Taylor, there is no language threatening litigation or otherwise giving the impression of impending litigation. Id. The brief June 25 Letter did contain the word "retained" like the letter in Robertson. Robertson, 2009 WL 5108479, at *2. But the phrase "[t]his office has been retained," coupled with law firm letterhead, does not overshadow the express disclaimer that no attorney had reviewed the file. See Taylor, 2011 WL 1303430, at *10. The words "[t]his office" in the June 25 Letter are even less likely to convey attorney involvement than "this law firm" in the Robertson letter. Robertson, 2009 WL 5108479, at *2. Therefore, the Court finds that the June 25 letter would not mislead the least sophisticated consumer as to attorney involvement. See Depuy, 442 F.Supp. at 824. Accordingly, the Court finds as a matter of law that Plaintiff has failed to state a claim under 15 U.S.C. §§ 1692e(3) or (10) based on the alleged misrepresentation of attorney involvement in the June 25 Letter, and GRANTS Defendant's Motion to Dismiss the First Amended Complaint.
Because the letter does not violate the FDCPA as a matter of law this claim is DISMISSED with prejudice.
However, since the Plaintiff pleads that Defendant used "false representations and deceptive practices in connection with collection of an alleged debt from Plaintiff including, but not limited to, sending a letter . . . ." (Am. Compl. 3-5, Doc. No. 5) (emphasis added), Plaintiff will be allowed an opportunity to file a Second Amended Complaint articulating specific violations (other than the June 25 Letter discussed herein) by which Defendant has violated the FDCPA. Any such amendment must be filed within thirty (30) days of the date of this order. As a result, and except as stated above, Plaintiff's First Amended Complaint is DISMISSED without prejudice.
D. The Rosenthal Act
Plaintiff claims that the June 25 Letter also violated Cal. Civ. Code § 1788.13(b) by "[f]alsely representing that any person is an attorney or counselor at law . . . ." (Am. Compl. 3, Doc. No. 5.) Defendant seeks to dismiss this claim "since there is nothing in the letter that suggests that any of Defendant's attorneys are licensed to practice law in California or . . . that a legal proceeding has been or will be instituted." (Reply 6, Doc. No. 10.) This claim is dismissed with prejudice for the same reasons Plaintiff's similar FDCPA claims have been dismissed. Leave to articulate specific alleged violations under the Rosenthal Act, other than those disposed of herein, is granted within the same thirty (30) days of the date of this order
Defendant's motion to dismiss Plaintiff's complaint without prejudice is GRANTED.
IT IS SO ORDERED.