United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS OR STAY BASED ON PRINCIPLES OF ABATEMENT
WILLIAM ALSUP, District Judge.
In this debt-collection practice action, defendants move to dismiss or stay based on principles of abatement. To the extent stated below, defendants' motion is DENIED.
In December 2012, defendants Mandarich Law Group, LLP and Attorney Vos filed an action on behalf of CACH, LLC against plaintiff Rachael A. Claflin in Santa Clara County Superior Court. CACH, LLC v. Rachael A. Claflin, et al., No. 1-13-cv-238859 (Santa Clara Cnty. Sup.Ct. Dec. 28, 2012). When the state-court complaint was filed (and at all relevant times alleged in that complaint), "Plaintiff was a resident of Alameda County, California." Ms. Claflin also "did not apply for the alleged debt or sign a credit application or credit agreement for the alleged debt, in Santa Clara County, California" (Compl. ¶¶ 13, 16, 17).
In November 2013, almost a year later, plaintiff Rachael A. Claflin filed the instant action against defendants Mandarich Law Group, LLP and Attorney Ryan Earl Vos, who were (and still are) counsel for the other side in the state-court action. Defendants in this action were not named parties in the state action. The operative complaint alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692, et seq. and the Rosenthal Fair Debt Collection Practices Act, California Civil Code Sections 1788-1788.33. The gravamen of the complaint is that defendants are "debt collector[s]" and violated federal and state laws when they ( id. at ¶¶ 27, 35) (emphasis added):
brought a legal action against Plaintiff to collect a defaulted consumer debt allegedly owed by Plaintiff in a judicial district other than the judicial district in which Plaintiff signed the contract sued on or in the judicial district in which Plaintiff resided at the commencement of the action
In other words, by filing the state action in "Santa Clara County - a distant and inconvenient venue - Plaintiff was required to retain legal counsel and incur attorneys' fees and costs in order to have the [state action] complaint transferred to the appropriate venue, Alameda County, California" ( id. at ¶ 19). This order pauses to note that plaintiff's complaint filed in the instant action (after the state action was transferred to Alameda County) stated the instant federal action "should be assigned to the San Jose Division" ( id. at ¶ 7). The action, however, was reassigned to the undersigned judge in December 2013, after there was a declination by plaintiff to proceed before a San Jose Magistrate Judge (Dkt. Nos. 7, 9).
In December 2013, defendants filed the instant motion. Plaintiff responded and defendants replied. The parties appeared for oral argument on February 20, the same day as the first case management conference.
Defendants move to dismiss, or alternatively, stay this action based on principles of abatement. Defendants argue this is appropriate because the state action was filed more than ten months before the instant action, the complaints in both actions are duplicative since they stem from the same alleged filing of the state action in the wrong venue and seek identical relief, and parties in privity are involved in both actions.
Furthermore, defendants cite policy factors that favor abatement, including waste of judicial resources from litigating the same issues in two courts, increased cost to litigate two identical cases, and the possibility that dual litigation might cause a race to judgment. Next, defendants allege that there would be no detriment to plaintiff in a dismissal or stay since plaintiff has already names "Roes 1-10" as placeholder defendants in the state action cross-complaint. Finally, defendants question plaintiff's intent in filing this federal action alleging that "counsel has attempted to duplicate his potential recovery in two separate venues."
The question of abatement arises when parties seek to litigate the same or closely related claims in two forums at the same time.
To determine whether a suit is duplicative, [our court of appeals] borrow[s] from the test for claim preclusion... [and] examine[s] whether the causes of action and relief sought, as well as the parties or privies to the action, are the same... Whether two events are part of the same transaction or series depends on whether they are ...