Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kevin Mcnichols v. the Moore Law Group; Discover Bank

February 28, 2012

KEVIN MCNICHOLS,
PLAINTIFF,
v.
THE MOORE LAW GROUP; DISCOVER BANK, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are (1) the Motion to Dismiss filed by Defendant Moore Law Group (ECF No. 5), (2) the Motion to Dismiss filed by Defendant Discover Bank (ECF No. 7), and (3) the Motion for Sanctions filed by Defendants Moore Law Group and Discover Bank (ECF No. 13).

BACKGROUND

On June 30, 2011, Plaintiff initiated this action by filing a complaint against Defendants Moore Law Group and Discover Bank. (ECF No. 1). On July 12, 2011, Plaintiff filed an amended complaint ("Complaint") alleging violations of the federal Fair Debt Collection Practices Act ("FDCPA"), California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), and California Business and Professions Code § 6077.5. (ECF No. 3).

On August 15, 2011, Defendant Moore Law Group filed a Motion to Dismiss (ECF No. 5) and Defendant Discover Bank filed a Motion to Dismiss (ECF No. 7). On September 12, 2011, Plaintiff filed oppositions to the motions to dismiss. (ECF Nos. 11, 12). On September 19, 2011, Defendants filed respective replies. (ECF Nos. 14, 15).

On September 15, 2011, Defendants filed a Motion for Sanctions Pursuant to Rule 11. (ECF No. 13). On October 3, 2011, Plaintiff filed an opposition to the motion for sanctions. (ECF No. 16). On October 6, 2011, Defendants filed a reply. (ECF No. 17).

ALLEGATIONS OF THE COMPLAINT

Sometime before December 14, 2010, Plaintiff is alleged to have fallen behind in payments allegedly owed to Discover Bank for personal credit card purchases. (ECF No. 3 ¶¶ 20, 23). On December 14, 2010, Discover Bank "assigned, placed, or otherwise transferred" the alleged credit card debt to Moore Law Group for collection. Id. ¶ 24.

On December 14, 2010, Moore Law Group, on behalf of Discover Bank, mailed Plaintiff a letter demanding payment of the credit card debt allegedly owed to Discover Bank. Id. ¶ 25. Later that month, Plaintiff received as many as six phone calls a day from Moore Law Group on Plaintiff's work telephone number trying to collect the alleged debt for Discover Bank. Id. ¶¶ 28, 29. During each phone call, Plaintiff advised Moore Law Group and Discover Bank that his employer prohibited him from receiving such communications and that the calls were inconvenient. Id. ¶ 29.

On December 20, 2011, Plaintiff notified Moore Law Group and Discover Bank in writing as required by 15 U.S.C. § 1692g that he disputed the alleged debt and that Moore Law Group and Discover Bank were to cease placing calls to Plaintiff at his workplace. Id. ¶¶ 30, 31. Moore Law Group and Discover Bank continued to call Plaintiff at his place of work and did not validate the alleged debt as required by 15 U.S.C. § 1692g(b). Id. ¶ 32.

In late January 2011, Plaintiff received a collection call from Moore Law Group during which Plaintiff requested that Moore Law Group validate the debt and the representative told Plaintiff to "stop acting like a f***ing attorney." Id. ¶ 42.

On February 8, 2011, Discover Bank, through its counsel Moore Law Group, filed a collections case against Plaintiff in San Bernardino County Superior Court. Id. ¶ 45. On March 7, 2011, Plaintiff filed an answer to that action in which Plaintiff's counsel was listed as attorney of record on the case. Id. ¶ 49. On March 22, 2011, Moore Law Group called Plaintiff directly on his work phone and left a message regarding the alleged debt. Id. ¶ 50.

Plaintiff asserts three causes of action against Defendants Moore Law Group and Discover Bank for violations of: (1) FDCPA under 15 U.S.C. §§ 1692 et seq.; (2) RFDCPA under California Civil Code §§ 1788-1788.32; and (3) tort in se under California Business and Professions Code § 6077.5. Plaintiff requests statutory damages, costs of litigation and attorney's fees, and exemplary and punitive damages.

DISCUSSION

I. Motions to Dismiss (ECF Nos. 5, 7)

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.