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Phelps v. Navient Solutions, Inc.

United States District Court, E.D. California

June 23, 2017

KHANTHALY PHELPS, Plaintiff,
v.
NAVIENT SOLUTIONS, INC., Defendant.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Presently before the court is defendant Navient Solutions, Inc.'s motion to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). (ECF No. 16.) Plaintiff filed an opposition and defendant filed a reply. (ECF Nos. 20, 22.) On April 2, 2017, the court took this matter under submission on the briefs without oral argument pursuant to Local Rule 230(g). (ECF No. 25). The undersigned has fully considered the parties' briefs and appropriate portions of the record. For the reasons that follow, defendant's motion to dismiss is granted and the first amended complaint is dismissed without leave to amend.

         I. Background

         Plaintiff filed her original complaint on or around October 21, 2016, in the Small Claims Division of the Sacramento County Superior Court. (ECF No. 1-1.) Subsequently, defendant removed the matter to federal court and filed a motion to dismiss. (ECF Nos. 1, 5.) The parties consented to the jurisdiction of the United States Magistrate Judge for all purposes. (ECF Nos. 4, 6.) After briefing and oral arguments, this court granted defendant's first motion to dismiss with leave to amend. (ECF No. 13.) Citing Federal Rule of Civil Procedure 11(b), the court cautioned plaintiff “that if she elects to file an amended complaint, she must clearly articulate each of her claims against defendant and provide factual allegations with regard to each claim that address the deficiencies outlined above. More importantly, plaintiff must have a good faith basis for making such allegations.” (Id. at 7.) The court further advised plaintiff that pursuant to Local Rule 220, “once an amended complaint is filed, it supersedes the original complaint, which no longer serves any function in the case.” (Id. at 7-8.)

         II. First Amended Complaint

         Plaintiff filed her first amended complaint on January 11, 2017, bringing claims under the Fair Credit and Reporting Act (“FCRA”) and the Fair Debt Collections Practices Act (“FDCPA”). (ECF No. 14 at 2.) The first amended complaint includes four letters plaintiff sent to defendant from August 2016 through October 2016, which plaintiff claims demonstrate that she has disputed the accuracy of allegedly derogatory information that defendant reported to credit bureaus.[1] (Id. at 4-7.) Plaintiff alleges that defendant violated 15 U.S.C. § 1681s-2 of the FCRA by (1) failing to “provid[e] notice of this disputed matter to the credit bureaus . . .;” (2) failing “to complete an investigation of Plaintiff's written dispute and provide the results . . . within the 30 day period as required . . .;” and (3) failing to “notif[y] Plaintiff of any determination that Plaintiff's dispute is frivolous within the 5 days required. . .” (Id. at 2) Plaintiff also alleges that defendant has violated 15 U.S.C. § 1692g of the FDCPA by failing to send her “written documentation of the amount of the debt, the name of the original creditor, []or other information required. . .” (Id.)

         III. Legal Standards

         A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F.Supp.2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a “short and plain statement” of plaintiff's claims showing entitlement to relief. Fed.R.Civ.P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). “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, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In considering a motion to dismiss for failure to state a claim, the court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is “not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Paulsen, 559 F.3d at 1071. The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in her complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that “pro se pleadings are liberally construed, particularly where civil rights claims are involved”); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal).

         In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

         IV. Discussion

         Defendant argues that plaintiff's complaint should be dismissed because “Plaintiff does not allege any facts putting [defendant] within the FDCPA's definition of a “debt collector”, nor does she provided sufficient factual allegations to support the theory that any violation of the FCRA or FDCPA occurred.” (ECF No. 16 at 3.) Further, defendant argues that plaintiff has failed to demonstrate or adequately allege that she has followed the mandatory procedure for “submitting a notice of dispute to a furnisher of credit information [a]s set for in 15 U.S.C. § 1681s-2(a)(8)(D)” of the FCRA. (Id. at 6.)

         A. FDCPA Claim

         To state a claim under the FDCPA, a plaintiff must “allege ‘factual content that allows the court to draw the reasonable inference' that the defendants: (1) are debt collectors, and (2) used ‘any false, deceptive, or misleading representation or means in connection with the collection of any debt' or otherwise engaged in conduct that violates a provision of the FDCPA.” Banks v. ACS Educ., 638 F. App'x 587, 590 (9th Cir. 2016) (citing Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208 (9th Cir.2013)). The FDCPA includes a series of exemptions to the term “debt collector.” “Among those exemptions, for example, the person who originated the debt, such as a creditor to whom the debt was originally owed, is not considered a debt collector.” De Dios v. Int'l Realty & ...


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