The opinion of the court was delivered by: Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy K. Hernandez Not Present n/a Deputy Clerk Court Reporter Tape No.
Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present
Proceedings: (In Chambers) Order DENYING Defendant's motions to dismiss
Before the Court are Defendant's motions to dismiss the Second Amended Complaint. Dkts. # 32, 33, 34. The Court finds the matters appropriate for decision without oral argument.
Fed. R. Civ. P. 78; L.R. 7-15. After considering the moving and opposing papers, the Court DENIES the motions.
On April 15, 2011, Plaintiff Guillermo Lopez ("Plaintiff") filed this action against Defendant Professional Collection Consultants ("Defendant") for unlawful debt collection practices. Dkt. #1. The Court granted Defendant's motion to dismiss the First Amended Complaint. Dkt. # 22. Plaintiff then filed a Second Amended Complaint ("SAC"). Dkt. # 26.
Plaintiff alleges that Defendant began placing collection calls to Plaintiff in January 2010 for a debt that Defendant claimed was owed to AT&T. SAC ¶ 11.*fn1 Defendant informed Plaintiff that he had co-signed an AT&T contract with Maria Elena Lopez and that a debt was owed under the contract. SAC ¶ 12. Defendant made "up to three (3) collection calls, five (5) times per week" through March 2011. SAC ¶¶ 11, 12. In February 2010, Plaintiff told Defendant that they were calling the wrong person, Plaintiff did not owe any debt to AT&T, and to stop contacting him because the constant phone calls were annoying, abusing and harassing. SAC ¶ 13. Plaintiff also told Defendant that he did not know a Maria Elena Lopez and had never co-signed an AT&T contract with a Maria Elena Lopez. SAC ¶ 16. Despite Plaintiff's statements, Defendant continued to call Plaintiff multiple times per day seeking payment. SAC ¶ 17. Defendant has told Plaintiff that he is a liar and accuses Plaintiff of "co-signing an AT&T contract for a family member or a lover." SAC ¶ 18.
Plaintiff alleges Defendant's conduct violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., and the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code § 1788, et seq. SAC ¶¶ 26-32.Defendant has filed three separate motions to dismiss the SAC. Dkts. # 32, 33, 34. The motions seek dismissal of the SAC under Federal Rules of Civil Procedure 12(b)(1), (2), (4), (5), and (6), as well as Rule
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a cause of action if the plaintiff fails to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). In evaluating the sufficiency of a complaint under Rule 12(b)(6), courts should be mindful that the Federal Rules of Civil Procedure generally require only that the complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required to survive a Rule 12(b)(6) motion to dismiss, a complaint that "offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007)). Rather, the complaint must allege sufficient facts to support a plausible claim to relief. See id.
In evaluating a Rule 12(b)(6) motion, the court must engage in a two-step analysis. See at 1950. First, the court must accept as true all non-conclusory, factual allegations made in the complaint. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Based upon these allegations, the court must draw all reasonable inferences in ...