LINDA D. MORIARITY, Plaintiff,
NATIONSTAR MORTGAGE, LLC, and DOES 1-10, Defendants.
ORDER REQUIRING PLAINTIFF EITHER TO FILE AN AMENDED COMPLAINT OR NOTIFY THE COURT OF HER WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 1) ORDER DENYING DEFENDANT'S MOTION TO DISMISS AS MOOT (Doc. 4)
SANDRA M. SNYDER, Magistrate Judge.
Plaintiff Linda D. Moriarity ("Plaintiff"), proceeding in forma pauperis, filed this complaint against Defendants Nationstar Mortgage, LLC ("Nationstar") and Does 1-10. The first claim is for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. The second alleges violations of California's version of this law, the Rosenthal Fair Debt Collection Practices Act ("RFDCPA" or "Rosenthal Act"), California Civil Code § 1788 et seq. The third claim is for a violation of the Telephone Consumer Protection Act ("TCPA"), 47 USC § 227.
When a plaintiff files a complaint in forma pauperis, the complaint must be screened pursuant to 28 U.S.C. § 1915(e). If the complaint survives screening, the Court then directs the Clerk of the Court to order service by the United States Marshal in accordance with Fed.R.Civ.P. 4(c)(3). The plaintiff is not to attempt service. This is explained in a packet entitled "A Simple Guide to Filing a Civil Action" which is given to pro se litigants in this district when they file actions with the Clerk's Office. See id. at 3 ("If your In Forma Pauperis application is granted, the Court will direct the U.S. Marshal to serve your summons and complaint upon the defendants.") Plaintiff disregarded these instructions and attempted to serve her complaint on Nationstar before the Court screened her complaint. On June 25, 2013, Nationstar filed a motion to dismiss the complaint. Doc. 4.
Although the Court has read and considered Nationstar's motion to dismiss, the Court will not decide it at this time. Instead, the Court first addresses Plaintiff's complaint under its screening authority. "The PLRA provides that a district court shall dismiss' an in forma pauperis complaint that fails to state a claim. So even if a 12(b)(6) motion is made, that does not relieve the district court of its duty to follow the PLRA." Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
As explained below, some of Plaintiff's claims are cognizable and others are not. Plaintiff must therefore notify the Court whether she intends to file an amended complaint or whether she wishes to proceed only on the claims found cognizable. Nationstar's motion to dismiss is DENIED as moot without prejudice to filing a motion to dismiss in the future.
I. Screening Standard
Under 28 U.S.C § 1915(e)(2), the Court must screen all complaints brought in forma pauperis or by prisoners. Lopez at 1129. The Court must dismiss the complaint or any portion of it that is "frivolous, " "malicious, " "fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2).
A complaint is frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A complaint is malicious if not pled in good faith. Kinney v. Plymouth Rock Squab. Co., 236 U.S. 43, 46 (1915). A complaint's failure to state a claim is defined in Fed.R.Civ.P. 12(b)(6), in that it does not satisfy the pleading standards in Fed.R.Civ.P. 8. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). This screening for failure to state a claim is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that the defendant may choose to bring. Teahan v. Wilhelm, 481 F.Supp.2d 1120 (S.D. Cal. 2007).
II. Pleading Standards
Under Fed.R.Civ.P. 8(a), a pleading that states a claim for a relief must include a statement demonstrating the Court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and... a demand for the relief sought, which may include relief in the alternative or different types of relief." It must give the defendant fair notice of the claims against him and state their elements plainly and succinctly. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,
The pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.... [¶] [A] complaint must contain sufficient factual matter, accepted as true, to... allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). Although a court assumes the truth of well-pled factual allegations, legal conclusions are not entitled to the same assumption of truth. Id.
If the Court determines that the complaint fails to state a cognizable claim, the Court may grant leave to amend to the extent the deficiencies can be cured. Lopez at 1127-28 (the "rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant") ( quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987)). Only if it is "absolutely clear" that the deficiencies could not be cured by amendment should the Court dismiss a pro se complaint with prejudice. Noll at 1448.
Plaintiff lives in Kern County. On or about April 23, 2012, Plaintiff was notified in writing by Bank of America, N.A., that effective May 15, 2012, Nationstar Mortgage would be assigned as the new servicer of a mortgage originated in 2003. According to this notice, collection of all payments and other collection activities would be by Nationstar on behalf of the owner. Plaintiff never had any prior business relationship with Nationstar.
Beginning on May 22, 2012, Defendant Nationstar used automated dialers to constantly and continuously place collection calls to Plaintiff seeking and demanding payment for an alleged debt owed. Between May 22, 2012 and July 17, 2012, Nationstar placed a total of 42 telephone collection calls to Plaintiff's home telephone. Of these, 37 were placed by an automated dialer, and 31 left a voice or prerecorded message to call a number to discuss an important matter. The calls were primarily from a single common 1-800 number. Plaintiff alleges that the sole purpose of these calls, made almost daily, was to harass and annoy her.
Plaintiff has documented each call in the complaint. Her timeline also indicates the details of certain calls or other incidents which caused her special concern. Nationstar first sent her a right-to-dispute letter on May 31, 2012, nine days after the initial telephone contact. (Plaintiff includes this letter as Exhibit 1 to her complaint.) On June 6, 2012, Nationstar called her before 8:00 A.M. On June 19, 2012, Plaintiff sent a written dispute letter including a request to cease future collection calls. ...