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Sepehry-Fard v. Mb Financial Services

United States District Court, N.D. California, San Jose Division

May 23, 2014




Before the Court is a motion to dismiss the first amended complaint filed by Defendant Mercedes-Benz Financial Services USA LLC, erroneously sued as MB Financial Services, ("Defendant") on February 25, 2014, (Def.'s Mot., ECF 66), as well a "Motion to Claim and Exercise Constitutional Rights" filed by Fareed Sepehry-Fard ("Plaintiff") on May 21, 2014, (Pl.'s Mot., ECF 84). Defendant's motion to dismiss is presently set for hearing on June 5, 2014; Plaintiff has noticed his motion to be heard on the same day. After considering the parties' written submissions, the Court finds that both matters are appropriate for disposition without oral argument. Accordingly, and pursuant to Civil Local Rule 7-1(b), the Court hereby VACATES the hearing set for June 5, 2014 and addresses each of the parties' motions in turn.


Plaintiff, proceeding pro se, filed the instant lawsuit on June 18, 2013 alleging claims against Defendant for negligence, violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), violation of California's Unfair Competition Law, California Business and Professions Code sections 17200, et seq. ("UCL"), violation of the Fair Debt Collections Practices Act ("FDCPA"), and for recoupment. (Orig. Compl., ECF 1) On January 13, 2014, following briefing by the parties, the Court dismissed Plaintiff's original complaint with leave to amend three out of the five claims. (Order Re Mots., ECF 59) Specifically, the Court allowed Plaintiff to file an amended complaint (1) "to state a TCPA claim to the extent Plaintiff alleges that Defendant made offending calls to a paging service telephone number or to a cellular telephone, " ( id. 5:10-12); (2) "to allege sufficient facts to state a claim and to clarify the legal theory" of Plaintiff's recoupment claim, ( id. 6:24-25); and (3) to "allege a UCL claim under the unlawful prong" to the extent "Plaintiff successfully amends his TCPA claim and is able to allege that he lost money or property as a result of Defendant's alleged unlawful activity, " ( id. 7:26-28).

On February 6, 2014, and in accordance with the Court's order, Plaintiff filed the operative First Amended Complaint ("FAC") re-pleading his TCPA, recoupment, and UCL claims. (FAC, ECF 64) Defendant now moves to dismiss Plaintiff's FAC. (Def.'s Mot., ECF 66) Plaintiff filed a timely opposition brief, (Pl.'s Opp., ECF 67), and Defendant did not reply. Plaintiff filed a separate motion on May 21, 2014 seeking to "claim and exercise constitutional rights." (Pl.'s Mot., ECF 84)


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191, 1199-200 (9th Cir. 2003). Dismissal under Rule 12(b)(6) may be based on either the "lack of a cognizable legal theory" or on "the absence of sufficient facts alleged." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).

To survive a motion to dismiss, a complaint must plead 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). The emphasis is on factual pleadings, as a pleading that offers "labels and conclusions, " "a formulaic recitation of the elements of a cause of action, " or "naked assertions devoid of further factual enhancement" will not do. Id. (citing and quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).

In assessing the sufficiency of the pleadings, the Court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (emphasis added). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008); see also Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

"A document filed pro se is to be liberally construed, ' and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, pro se pleadings must still allege facts sufficient to allow a reviewing court to determine whether a claim has been stated. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1992).

If a motion to dismiss is granted, a court should normally grant leave to amend, "even if no request to amend the pleading was made, " unless amendment would be futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotations omitted).


A. The FAC is the Operative Pleading

As a preliminary matter, the Court notes that the FAC, though thirteen pages long, contains few factual allegations. Instead, the FAC appears to be styled as a "Memorandum of Points and Authorities" with numerous legal arguments. (FAC 2:8) In certain paragraphs, the FAC references the "complaint"-which the Court assumes refers to the original complaint-to support Plaintiff's ...

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