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Iniguez v. CBE Group

United States District Court, E.D. California

September 5, 2013

NANCY INIGUEZ, Individually and On Behalf of All Others Similarly Situated, Plaintiff,
v.
THE CBE GROUP, Defendant

Page 1242

For Nancy Iniguez, Individually and On Behalf of All Others Similarly Situated, Plaintiff: Seyed Abbas Kazerounian, LEAD ATTORNEY, Kazerounian Law Group, Costa Mesa, CA; Jason Alan Ibey, Kazerounian Law Group, APC, Costa Mesa, CA.

For The CBE Group, Inc., Defendant: Sean Patrick Flynn, LEAD ATTORNEY, Foley & Mansfield, PLLP, Los Angeles, CA.

Page 1243

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on Defendant The CBE Group, Inc.'s (" Defendant" ) Motion to Dismiss (Doc. #18). Plaintiff Nancy Iniguez opposes the motion (Doc. #22) and Defendant replied (Doc. #23). Plaintiff also filed a Notice of Recent Authority (Doc. #27). Along with its motion, Defendant submitted 69 evidentiary exhibits and two declarations.

I. BACKGROUND

This lawsuit is based on Plaintiff's allegations that Defendant placed numerous calls to her cell phone seeking to collect a debt owed by a third party to Dish Network, LLC. Plaintiff alleges that she informed Defendant that the third party no longer controlled the cellular telephone number that Defendant was calling but the calls continued unabated. Plaintiff alleges violations of the Telephone Consumer Protection Act (" TCPA" ) and seeks to represent a class of similarly situated individuals.

Prior to filing the present lawsuit, Plaintiff initiated a suit against Dish Network directly. Case No. 2:12-CV-02354 JAM-AC. Plaintiff voluntarily dismissed her claims against Dish Network, stating in a stipulation, " Plaintiff Iniguez's dismissal from this action against DISH shall be with prejudice . . . . Plaintiff Iniguez agrees to no longer participate in the instant matter either as a named party or class member, but reserves her right to take appropriate legal action against the third party entity [which she believes made the offending calls]." Case No. 2:12-CV-02354 JAM-AC (Doc. #19). Defendant now moves to dismiss Plaintiff's suit on the grounds that it is barred by res judicata and that the allegations in the complaint do not state a claim for which relief can be granted.

Plaintiff's complaint contains two claims, the first for negligent violations of the TCPA, 47 U.S.C. § 227,

Page 1244

and the second for willful and/or knowing violations of the same. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331.

II. OPINION

A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss a plaintiff must plead " enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering a motion to dismiss, a district court must accept all the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). " First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must sufficiently allege underlying facts to give fair notice and enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101, 182 L.Ed.2d 882 (U.S. 2012). " Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id. Assertions that are mere " legal conclusions" are therefore not entitled to the presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555). Dismissal is appropriate when a plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, a court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). " Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Emi ...


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