United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANTS' MOTION TO DISMISS [Re:
LABSON FREEMAN JUDGE
Creditors Specialty Service, Inc. ("CSS"), and
Charles Stanley, Jr. ("Stanley") (collectively,
"Defendants") filed a motion to dismiss Plaintiff
Marites Montemayor Garcia's ("Plaintiff")
claims alleging violations of the Fair Debt Collection
Practices Act ("FDCPA") and Rosenthal Fair Debt
Collection Practices Act ("RFDCPA"). ECF 74. The
Court, finding this matter appropriate for disposition
without oral argument pursuant to Civ. L.R. 7-1(b), vacated
the hearing. ECF 71. After reviewing the parties' written
submissions and the Second Amended Complaint
("SAC"), and for the reasons set forth below, the
Court DENIES Defendants' motion to dismiss.
incurred a debt on a consumer credit account issued by
Provident Credit Union. SAC ¶ 12. After experiencing
financial hardship, Plaintiff defaulted on the debt.
Id. at ¶ 13. Thereafter, the debt was
transferred to Defendant CSS for collection. Id.
¶ 14. Plaintiff alleges that Defendant Stanley is or was
an officer, director, employee, and agent of Defendant CSS.
Id. at ¶ 10. According to Plaintiff, Defendants
mailed their collection letters in window envelopes, which
exposed portions of the envelope's contents. Id.
at ¶ 26.
1, 2013, Defendants sent a collection letter to Plaintiff
using a window envelope which exposed portions of the letter
through a glassine window. Id. at ¶¶
15-19, 22. Visible on the face of the envelope was Defendant
CSS's name, its return address, and a "large red
dollar sign logo, " id. at ¶ 21; Exh. 1 to
SAC at 2, ECF 74-1, and Plaintiff's name and address, and
the words "SPECIAL SETTLEMENT OFFER" in bold 14
point type could be seen through the glassine window,
id. at ¶ 22; Exh. 1 to SAC at 2, ECF 74-1.
According to Plaintiff, Defendant Stanley personally
participated in collecting Plaintiff's alleged debt. SAC
¶ 25. After receiving this letter, Plaintiff filed suit
against Defendants for allegedly violating the FDCPA and
motion to dismiss under Rule 12(b)(6) concerns what facts a
plaintiff must plead on the face of the complaint. Under Rule
8(a)(2) of the Federal Rules of Civil Procedure, a complaint
must include "a short and plain statement of the claim
showing that the pleader is entitled to relief." Any
complaint that does not meet this requirement can be
dismissed pursuant to Rule 12(b)(6). A "short and plain
statement" demands that a plaintiff pleads "enough
facts to state a claim to relief that is plausible on its
face, " Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007), that would "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 Court must "accept factual
allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving
party." Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Court has already gone through one round of motions to
dismiss. Order Granting in Part and Denying in Part Motion to
Dismiss ("Order"), ECF 73. In the SAC, Plaintiff
alleges that the collection letter sent by Defendants on May
1, 2013 violates several section of the FDCPA and the
corresponding sections of the RFDCPA. Specifically, Plaintiff
believes Defendants violated 15 U.S.C. §§ 1692c(b),
1692f(7), and 1692f(8), and Cal. Civil Code §§
1788.12(b), 1788.12(d), and 1788.17. SAC ¶¶ 34, 43.
In this latest motion to dismiss, Defendants move to dismiss
all of Plaintiff's claims except those under 15 U.S.C.
§ 1692f(8) and Cal. Civ. Code § 1788.17. Defs. Mot.
2, ECF 75.
15 U.S.C. §§ 1692c(b)
section 1692c(b), "a debt collector may not communicate,
in connection with the collection of any debt, with any
person other than the consumer." The statute defines
"communication" as "the conveying of
information regarding a debt directly or indirectly to any
person through any medium." 15 U.S.C. § 1692a(2).
In the Court's prior Order addressing the First Amended
Complaint, the Court held:
Plaintiff's allegation that Defendants communicated with
third parties about her debt is conclusory. Plaintiff
provides no facts as to who the third parties are that
Defendants communicated with. Absent any factual detail about
the third parties, Plaintiff has not given Defendants fair
notice of her claim.
4, ECF 73. In the SAC, Plaintiff added factual allegations in
paragraph 20, which stated "several people had access to
Plaintiff's mailbox…including, but not limited to
employees of the U.S. Postal Service, Plaintiff's postal
carrier, Plaintiff's adult child, and Plaintiff's
roommate…." SAC ¶ 20, ECF 74.
argue that there does not appear to be any communications
with a third party because the only way anyone could have
learned of the letter's contents was by
"‘snooping' into another persons (sic)
mail." Defs. Mot. 5, ECF 75. Plaintiff counters that her
additional allegations provide sufficient details as to who