This case, in which plaintiff is proceeding in forma pauperis and in propria persona, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). Currently pending before the undersigned is defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim. Dckt. No. 10. For the reasons stated herein, defendant's motion to dismiss will be granted with leave to amend.
Plaintiff's complaint alleges that defendant violated the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), the Telephone Consumer Protection Act,47 U.S.C. § 227 ("TCPA"), and the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. ("FCRA"). Compl., Dckt. No. 1. The complaint alleges that plaintiff is a consumer and defendant is a debt collector, as those terms are defined in the FDCPA, and that defendant sought to collect a consumer debt from plaintiff. Compl. ¶¶ 7-8. Plaintiff alleges that "[o]n or about May 11, 2011, the Defendant sent notice to the Plaintiff that a suit was being filed against Plaintiff for a debt the Plaintiff allegedly owed." Id. ¶ 11. Plaintiff further alleges that "[o]n or about Plaintiff received a call from Rudy who was representing the Defendant who states that he could pull his credit report and while he was on the phone with the Plaintiff pulled the credit report a second time." Id. ¶ 12. Finally, plaintiff alleges that "Defendant knowingly obtained a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose since the Plaintiff had no liability on that account." Id. ¶ 13.
Plaintiff contends defendant violated § 1692d(6) of the FDCPA "by placing collection calls without disclosing his/her identity and threatening to sue the Plaintiff if he filed suit"; violated § 1692e(5) "by threatening to take legal action which could not be legally taken or that was not intended to be taken"; violated § 1692f "by using unfair or unconscionable means to collect or attempt to collect the alleged debt"; and violated § 1692d "by engaging in conduct the natural consequence of which was to harass, oppress, and/or abuse in connection with attempted collection of alleged debt." Id. ¶¶ 18-21.
Plaintiff also contends defendant violated § 227(a)(iii) of the TCPA "by calling a cell phone to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call." Id. ¶ 24.
Finally, plaintiff contends defendant violated the FCRA by pulling two credit reports from a consumer reporting agency "under false pretenses or knowingly without permissible purpose. Id. ¶¶ 28-29.
II. RULE 12(b)(6) MOTION TO DISMISS
Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(6), arguing that plaintiff fails to plead plausible claims for relief under the FDCPA, the TCPA, or the FCRA.
Dckt. No. 12 at 5-8. In response, plaintiff argues that the factual allegations against defendant are clear. Dckt. No. 12 at 1. However, plaintiff then cites to factual allegations that do not appear in his complaint. Id. at 1-2. Specifically, plaintiff alleges that on February 11, 2010 and May 17, 2011, in violation of the FCRA, defendant pulled "Plaintiff's credit report from Experian without permissible purpose." Id. at 1. Plaintiff also contends that, in violation of the FDCPA, "[o]n or about February 12, 2010, [defendant] sent Plaintiff a letter attempting to collect on a nonexistent alleged debt" and that plaintiff responded to that letter with a request for validation of the debt. Id. Finally, plaintiff contends that on or about May 5, 2011, plaintiff sent a certified letter to defendant with the offer to settle the matter without suit and defendant did not respond. Id. at 2.
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). "[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) (quoting Twombly, 550 U.S. at 570). "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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to ...