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Rodrigo v. Barclays Bank Delaware

United States District Court, S.D. California

March 27, 2017

BARCLAYS BANK DELAWARE; and THE MOORE LAW GROUP, a California Professional Corporation, Defendants.




         Pending 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 are GRANTED.


         The 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.

         It is 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[, ]”[2] 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.

         On 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.

         On 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.

         On May 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.

         On July 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.

         On 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” resulting from-

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.


         I. Legal Standard

         A 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).

         “To 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.

         In 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 ...

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