United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' RESPECTIVE MOTIONS TO
DISMISS [DOC. NOS. 5, 7]
A. HOUSTON, UNITED STATES DISTRICT JUDGE
before the Court are two motions to dismiss filed,
respectively, by Defendants The Moore Law Group
(“TMLG”) and Barclays Bank Delaware
(“Barclays”), pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. See Doc. Nos. 5,
7. Both motions have been fully briefed by the parties.
See Doc. Nos. 8, 9, 10. After careful consideration
of the pleadings, the relevant exhibits submitted by the
parties, and for the reasons set forth below, both motions
instant matter arises from Plaintiff Diana Rodrigo's
(“Rodrigo” or “Plaintiff”) allegation
that, on April 8, 2015, Barclays, through its counsel TMLG,
“unlawfully and abusively” brought a lawsuit
against her to collect a time-barred debt in violation of the
Fair Debt Collection Practices Act, 15 U.S.C. §§
1692 et seq. (the “FDCPA”) and
California's Rosenthal Fair Debt Collection Practices
Act, Cal. Civ. Code §§ 1788 et seq. (the
“Rosenthal Act”). See Doc. No. 1.
Specifically, Plaintiff alleges that TMLG, exclusively,
violated the FDCPA, and that TMLG and Barclays, both,
violated California's Rosenthal Act. Id.
undisputed that “[s]ome time before 2009, ” while
living in San Diego, California, Rodrigo opened a credit card
account with “Juniper Bank and/or Barclays Bank[,
]” and, that the last payment made by
Rodrigo, before defaulting on the subject account, was
received “on or about May 2, 2011[.]”
See Doc. No. 1 at 4. As a result of Rodrigo's
subsequent delinquencies, Barclays closed her account in
January of 2012. Id.
April 8, 2015, Barclays, through its counsel TMLG, filed a
collection action against Rodrigo in California Superior
Court, County of San Diego. See Doc. No. 1, Exh. 1
(Barclays Bank Deleware v. Rodrigo, Case No.
37-2015-00011631-CL-CL-NC). In the state court action,
Barclays sought $5, 012.17, plus costs of suit, alleging
Common Counts “on an open book account for money due[,
]” and “because an account was stated in writing
by and between plaintiff and defendant in which it was agreed
that defendant was indebted to plaintiff.” See
Doc. 1, Exh. 1 at 4.
April 22, 2015, Barclays filed proof of service, indicating
that Diana Rodrigo was personally served by the registered
service of process agent for TMLG, on April 15, 2015, at 7:58
A.M., at 4727 Via Colorado, Oceanside, California 92056.
See Doc. No. 1, Exh. 3. The proof of service form
includes the following disclosures the service of process
agent: (1) a physical description of the individual he served
that morning; (2) his declaration that, under the penalty of
perjury, all information provided is true and correct; and
(3) his signature. Id.
29, 2015, entry of default was entered in favor of Barclays.
See Doc. No. 5-2 at 4. On July 2, 2015, Rodrigo
moved to vacate entry of default. Id. Barclays
opposed the motion; and, on the same day, Rodrigo's
motion was “rejected” for nonpayment of the
requisite appearance fee. Id.; Doc. 1-1 at 32.
24, 2015, Rodrigo filed a second motion to vacate entry of
default, arguing that she was never personally served with
the summons and complaint, and the individual described as
accepting service was, allegedly, not her. See Doc.
1, Exh. 6. Although Barclays opposed this motion, the state
court granted Rodrigo's motion, and vacated entry of
default without making any findings with respect to the
legitimacy of proof of service. See Doc. No. 1, Exh.
7. The case was subsequently scheduled for trial on March 17,
2016; however, on March 16, 2016, Barclays voluntarily
dismissed the state court action without prejudice.
See Doc. No. 5-2 at 6.
April 4, 2016, Plaintiff filed suit in this Court, alleging
that Defendants Barclays and TMLG violated the FDCPA and
California Rosenthal Act because (1) Defendants
“knowing[ly], willful[ly], and intentional[ly]”
brought the April 2015 state court action despite its
untimeliness under Delaware's three-year statute of
limitations (“SOL”), which, according to
Plaintiff, governs the SOL analysis in this case; and (2)
Defendants “knowing[ly], willful[ly], and
intentional[ly]” effectuated allegedly fraudulent
service. See generally Doc. No. 1.
Ultimately, Plaintiff seeks statutory damages and
compensation for “substantial emotional distress”
1) [Defendants'] time-barred law suit; 2) learning of a
false proof of service filed against her and then having to
file motions to vacate the improper default entered against
her; and 3) having to continue her defense against the [state
court] Collection Action because Defendant refused to
stipulate to vacate the default and continued to pursue an
action that was time barred under applicable Delaware law.
See Doc. No. 1 at 12. On May 17, 2016, Defendants
filed their respective motions to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
See Doc. Nos. 5, 7. Plaintiff filed opposition to
both motions. See Doc. Nos. 8 (single opposition
brief responding to both motions to dismiss). TMLG and
Barclays, respectively, filed replies to Plaintiff's
opposition brief. See Doc. Nos. 9, 10. This Court
subsequently exercised its discretion to decide the matter on
the papers, without oral argument, pursuant to CivLR
7.1(d)(1). See Doc. No. 11.
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint. Navarro v. Block, 250 F.3d 729,
732 (9th Cir. 2001). Dismissal is warranted under Rule
12(b)(6) where the complaint lacks a cognizable legal theory.
See Robertson v. Dean Witter Reynolds, Inc., 749
F.2d 530, 534 (9th Cir. 1984); Neitzke v. Williams,
490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a
court to dismiss a claim on the basis of a dispositive issue
of law”). Alternatively, a complaint may be dismissed
where it presents a cognizable legal theory yet fails to
plead essential facts under that theory. Robertson,
749 F.2d at 534. While a plaintiff need not give
“detailed factual allegations, ” he must plead
sufficient facts that, if true, “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 545 (2007).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting
Twombly, 550 U.S. at 547). A claim is facially plausible when
the factual allegations permit “the court to draw the
reasonable inference that the Defendant is liable for the
misconduct alleged.” Id. In other words,
“the non-conclusory ‘factual content, ' and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to
relief.” Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). “Determining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 663-64.
reviewing a motion to dismiss under Rule 12(b)(6), the court
must assume the truth of all factual allegations and must
construe all inferences from them in the light most favorable
to the nonmoving party. Thompson v. Davis, 295 F.3d
890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal
conclusions need not be taken as true merely because they are
cast in the form of factual allegations. Ileto v. Glock,
Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.
1981). When ruling on a motion to dismiss, a court may
consider the facts alleged in the complaint, documents
attached to the complaint, documents relied upon but not
attached to the complaint when authenticity is not contested,
and matters of which a court takes judicial notice. Lee
v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001). If a court ...