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Rebecca Shapiro v. Professional Collection Consultants; Donald Hopp

September 28, 2011


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge




Currently before the Court is Defendants Professional Collection Consultants ("PCC") and Donald Hopp's ("Hopp" and collectively, "Defendants") Motion to Dismiss Plaintiff Rebecca Shapiro's ("Plaintiff") Second Amended Complaint ("SAC") pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 14.) The Court deems the matter appropriate for decision without oral argument, and for the reasons discussed below, hereby, GRANTS IN PART AND DENIES IN PART Defendants' Motion. See Fed. R. Civ. P. 78(b); L.R. 7-15.


Plaintiff's SAC alleges the following: Defendants are debt collectors who attempted to collect an outstanding debt from Plaintiff. (SAC ¶¶ 4, 8.) Hopp owned PCC. (SAC ¶ 5.) Within the year preceding the filing of the SAC, Plaintiff entered into an arrangement with PCC consisting of monthly payments for the debt Plaintiff owed PCC. (SAC ¶ 11.) PCC subsequently contacted Plaintiff on multiple occasions attempting to collect. (SAC ¶ 9.) On at least one of these attempts, PCC's employee did not identify the name of the company he was calling from or state that the call was from a debt collector. (SAC ¶ 14.)

In January of 2011, Plaintiff called PCC to make her monthly payment. (SAC ¶ 12.) Plaintiff was unable to complete the payment, however, because the employee who ordinarily accepts her payments was unavailable. (SAC ¶ 12.) The following month, a PCC employee called Plaintiff on her cell phone while she was at work regarding the missed payment. (SAC ¶ 13.) During this conversation, PCC's employee "berated" Plaintiff, including telling Plaintiff that she was "a disappointment" and that he would "take her for everything she's worth and that she should close her bank account and hide her car." (SAC ¶ 13.)

Based on these allegations, Plaintiff instituted this action on April 20, 2011, asserting violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and the California Rosenthal FDCPA ("California FDCPA"), Cal. Civ. Code § 1788, et seq. Defendants now move to dismiss Plaintiff's SAC in its entirety.


"To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, to overcome a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation and citation omitted). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement of relief." Id. (internal quotation and citation omitted).

When considering a 12(b)(6) motion, a court is generally limited to considering materials within the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citing Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Thus, the Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted).



"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 Accts. Receivables Corp., 654 F. Supp. 2d 1051, 1057 (C.D. Cal. 2009). The statute's intent is to eliminate abusive debt collection practices, including the harassment and abuse of consumers. 15 U.S.C. § 1692(e). In particular, 15 U.S.C. § 1692d provides, "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt," qualifies as a violation of the FDCPA. Conduct encompassed by this definition includes the use of language which would naturally cause the hearer to feel abused and advertising the sale of any debt, with the intention to coerce payment of the debt. 15 U.S.C. §§ 1692d(2), 1692d(4). The Court evaluates this conduct from the perspective of ...

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