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David Myers v. Winn Law Group

October 18, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, David Myers ("plaintiff") is proceeding without counsel in this action.*fn1

Plaintiff filed a complaint on September 8, 2011 (Compl., Dkt. No. 1), alleging violations of the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (the "FDCPA"), the Fair Credit Reporting Act (the "FCRA"), 15 U.S.C. §§ 1681 et seq., and the California Fair Debt Collection Practices Act (the "Rosenthal Act"), Cal. Civ. Code §§ 1788 et seq. (Compl. at 1.) The complaint is directed at four named defendants: the Winn Law Group, APC; Brian N. Winn; Naomi S. Rust, and Discover Card. (Id.) Plaintiff simultaneously filed an Application To Proceed In Forma Pauperis. (Dkt. No. 2.)

For the reasons stated below, the undersigned grants plaintiff's application to proceed in forma pauperis (Dkt. No. 2), but dismisses the complaint (Dkt. No. 1) without prejudice. Plaintiff is granted leave to file an amended complaint.

I. Application to Proceed In Forma Pauperis

Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Dkt. No. 2.) Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

II. Screening of the Complaint

The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See also Lopez, 203 F.3d at 1126-27 ("It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").

Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all facts alleged as true and construes them in the light most favorable to the plaintiff; the court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez, 203 F.3d at 1130-31.

Upon review of the complaint, the undersigned will dismiss the complaint for failure to comply with the pleading standards described above. However, plaintiff will be granted leave to file an amended complaint.

Plaintiff's complaint contains few factual allegations regarding conduct by the four named defendants. Although the complaint's caption names four very different defendants - a law firm, two individuals, and "Discover Card" - the text of the complaint only identifies "[t]he Defendants" collectively as "debt collectors" and "companies doing business in California and, upon information and belief located in Orange County, California, and Phoenix, Arizona." (Compl. ¶¶ 8-9.) In regards to factual allegations regarding defendants' conduct that may give rise to liability, plaintiff alleges:

"The Defendants knowingly obtained a consumer report from a consumer credit reporting agency under false pretenses or knowingly without permissible purpose since the plaintiff had no liability on the alleged debt. Plaintiff has no contractual obligation to pay the defendants. Defendants violated both federal and state law by continuing to collect a debt without validation or verification. Defendants used false representation to collect or attempt to collect the alleged debt."

(Compl. ¶¶ 11-14.) Plaintiff also alleges that the defendants collectively "contact[ed]" plaintiff "outside of the prescribed times of after 8 o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's location." (Id. ¶ 19.) Plaintiff also alleges that defendants collectively "pulled a 'credit report'" from a "credit reporting agency" and did so "under false pretenses or knowingly without permissible purpose." (Id. ¶¶ 22-23.) Plaintiff also alleges that defendants collectively made a "false representation that the alleged debt may be increased by the addition of attorney fees, investigation fees, services fees, finance charges, or other charges if, in fact, such fees or charges may not legally be added to the alleged existing debt[,]" and a "false representation that a legal proceeding has been, is about to be, or will be instituted unless payment of the alleged debt is made." (Id. ¶¶ 27-28.)

These allegations do not provide sufficient notice of the conduct that forms the basis of plaintiff's claims for relief. Plaintiff has failed to allege how each of the four named defendants were individually involved in violating his rights under the FDCPA, the FCRA, and the Rosenthal Act. All of plaintiff's allegations are targeted at the four named defendants ...

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