United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION TO DISMISS;
SETTING CASE MANAGEMENT CONFERENCE Re: Dkt. No. 15
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
the Court is Defendant Wells Fargo Bank, N.A's
("Defendant") motion to dismiss the complaint, Dkt.
No. 1 ("Compl."), filed by Plaintiff Ramat B. Momoh
("Plaintiff"). Dkt. No. 15 ("Mot.").
Defendant moves to dismiss under Federal Rule of Civil
Procedure 12(b)(6) on the basis that Plaintiff's ongoing
bankruptcy proceeding precludes her claims. Plaintiff has
filed an opposition, Dkt. No. 20 ("Opp."), and
Defendant has replied, Dkt. No. 22 ("Reply").
reasons set forth below, the Court DENIES Defendant's
motion to dismiss.
January 6, 2014, Plaintiff filed a petition for bankruptcy
under Chapter 13 of the United States Bankruptcy Code. Compl.
¶ 12. The case was confirmed on October 31, 2014.
around March 2015, Defendant began calling Plaintiff's
cell phone to attempt to collect a purported debt.
Id. ¶¶ 13-14. Plaintiff told the caller
that she had filed for bankruptcy and told Defendant to
contact her bankruptcy attorney. Id. ¶ 15. She
suspects that the calls were made using an automated
telephone dialing system because she heard a short pause
before the caller began speaking. Id. ¶ 16.
Even though Plaintiff instructed Defendant to not contact her
any further, Defendant called her several more times.
Id. ¶¶ 19-20. Defendant also sent
collection letters and account statements to Plaintiff.
Id. ¶ 21 & Ex. A. On April 9, 2015 and again on
May 7, 2015, a notice was placed on the front door of
Plaintiff's residence asking her to contact Defendant.
Id. ¶¶ 22-23 & Exs. B & C. Defendants'
conduct has caused Plaintiff extreme emotional distress and
mental anguish. Id. ¶ 24.
October 13, 2015, Plaintiff filed the instant lawsuit against
Defendant. She asserts that Defendant's debt collection
activities violated the Telephone Consumer Protection Act, 27
U.S.C. § 227, et seq. ("TCPA"), and
the Rosenthal Fair Debt Collection Practices Act, Cal. Civ.
Code § 1788, et seq. ("Rosenthal
Act"). Compl. ¶¶ 26-31.
now moves to dismiss. Defendant contends that Plaintiff has
failed to state a claim upon which relief can be granted for
three independent reasons. First, Defendant argues that
Plaintiff is judicially estopped from raising any claims that
were not mentioned in her bankruptcy plan or raised in the
bankruptcy court before Defendant filed its motion to
dismiss. Mot. at 4-9; Reply at 2-5. Second, Defendant posits
that during the pendency of her bankruptcy, Plaintiff does
not have standing to pursue individual claims, but can only
pursue claims for the benefit of her bankruptcy estate, on
whose behalf she does not sue. Id. at 9-11. And
third, Defendant argues that Plaintiff's claims are
preempted by the Bankruptcy Code. Id. at 11-12.
REQUEST FOR JUDICIAL NOTICE
turning to the substance of the motion, the Court addresses
Defendant's request for judicial notice. Dkt. No. 16
("RJN"). The materials of which Defendant seeks
notice include: (1) the docket for Plaintiff's bankruptcy
case; (2) Defendant's proof of claim on Plaintiff's
debt; (3) Plaintiff's Chapter 13 bankruptcy plan; and (4)
the bankruptcy court's confirmation order. Id.
doctrine of judicial notice permits district courts to take
as true "a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned." Fed.R.Evid. 201(b).
The existence of proceedings in other courts, including
orders, is the proper subject of judicial notice when those
materials are directly related to the case. Tigueros v.
Adams, 658 F.3d 983, 987 (9th Cir. 2011) (internal
citations omitted). But it is inappropriate to take judicial
notice of facts contained in other filings and orders from
other proceedings for the truth of the matters they assert.
See Lasar v. Ford Motor Co., 399 F.3d 1101, 1117,
n.14 (9th Cir. 2005) (declining to take judicial notice of
factual findings made in another proceeding "because
[defendants were] offering the factual findings contained in
the order for the purpose of proving the truth of the factual
findings contained therein").
Court takes judicial notice of the materials from
Plaintiff's bankruptcy proceeding to the extent that they
are offered to explain the procedural posture of this action.
See Tigueros, 658 F.3d at 987. But the Court
declines to take judicial notice to the extent that Defendant
offers these ...