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Kruckenberg v. The McKellar Group, LLC

United States District Court, S.D. California

August 14, 2014

KIPPY KRUCKENBERG, an individual, Plaintiff,
v.
THE McKELLAR GROUP, LLC a limited liability company; and DOES 1 through 10, inclusive, Defendants.

ORDER GRANTING IN PART MOTION TO DISMISS [Docket No. 4]

ROGER T. BENITEZ, District Judge.

Before this Court is a Motion to Dismiss, filed by Defendant McKellar Group, LLC. (Docket No.4). Defendant asks this Court to dismiss Plaintiff Kippy Kruckenberg's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the Motion is GRANTED IN PART.

BACKGROUND

On June 10, 2014, Plaintiff filed a Complaint asserting violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq, and a California state law claim for invasion of privacy. (Docket No.1).

Plaintiff alleges that Defendants are "debt collectors" as defined by the FDCPA because they are "engaged in the collection of debts from consumers using the mail and telephone" and "regularly attempt to collect consumer debts alleged to be due to another." (Compl. ¶ 5). Plaintiff states that she is a "consumer" as defined by the FDCPA. ( Id. ¶ 7).

Plaintiff alleges the following facts in her Complaint. At a "time unknown, " Defendant "acquired information regarding an alleged account (the Debt') it claimed belonged to Plaintiff." ( Id. ¶ 10). Defendant began to call Plaintiff in an attempt to collect the Debt "[w]ithin the year prior to the filing of this action." ( Id. ¶ 11).

Defendant called Plaintiff's unspecified "place of employment" in attempt to contact Plaintiff to collect the debt. ( Id. ¶ 12). One of Defendant's representatives spoke to a receptionist at Plaintiffs work, who informed him that he was calling a place of business and that Plaintiff could not receive personal calls at work. ( Id. ¶ 13). The representative told the receptionist that "Plaintiff needed to contact [Defendant] so he would not have to serve Plaintiff at her work." ( Id. ¶ 14). Defendant continued to call Plaintiff's place of employment. ( Id. ¶ 15). A representative of Defendant contacted an unnamed "Associate Director" at Plaintiff's work in an attempt to contact Plaintiff. ( Id. ¶ 16). The Associate Director told the representative that he was calling Plaintiff's work, and could only transfer him to Plaintiffs voicemail. ( Id. ¶ 17). Defendant's representative "wanted to explain the situation to the Associate Director." ( Id. )

Plaintiff contacted Defendant, and spoke with a representative named Michael Brewer. ( Id. ¶ 18). Plaintiff informed Brewer that "she did not know what the Debt was for." ( Id. ¶ 19). Brewer told Plaintiff that Defendant sent hera letter regarding the debt and that her time ran out to settle the Debt. (Id.) Brewer stated that only individuals who were served were given the number that Plaintiff called to reach him. (Id.) Plaintiff told Brewer that she was not served with any papers, nor did she receive the letter regarding the Debt. ( Id. ¶ 20).

Following Plaintiffs conversation with Brewer, a different representative of Defendant contacted "Plaintiff's father" in an attempt to collect on the Debt. ( Id. ¶ 21). The representative told Plaintiff's father that he was a process server trying to serve Plaintiff. ( Id. ¶ 22).

Plaintiff was never served with paperwork from Defendant or any other person or entity. ( Id. ¶ 23). Plaintiff claims to have suffered emotional distress as a result of the foregoing. ( Id. ¶ 24).

Plaintiff's first claim for relief alleges violation of the FDCPA. She enumerates thirteen provisions of the FDCPA she claims have been violated. ( Id. ¶ 26). Plaintiff seeks actual damages, statutory damages, costs, and attorney's fees. ( Id. ¶ 27) In her second claim for relief, Plaintiff alleges "Invasion of Privacy: Public Disclosure of Private Facts, " and seeks actual and punitive damages ( Id. at p. 6 & ¶ 33).

Defendant filed the instant motion to dismiss on July 10, 2014. Plaintiff filed an Opposition on July 21, 2014. (Docket No.8). No reply was filed.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court may grant a motion to dismiss if, taking all factual allegations as true, the complaint fails to state a plausible claim for relief on its face. FED. R. CIV. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Federal Rule of Civil Procedure 8(a)(2) requires that a ...


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