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Ewing v. Integrity Capital Solutions, Inc.

United States District Court, S.D. California

July 11, 2017

ANTON EWING, Plaintiff,
v.
INTEGRITY CAPITAL SOLUTIONS, INC., et al., Defendants.

          ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS (ECF NO. 22, 24)

          JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.

         Presently before the Court are Defendants Integrity Capital Solutions, Inc.'s (“ICS”) and Michele Sharpe's (collectively, “Defendants”) Motion to Dismiss Plaintiff's Amended Complaint (“ICS MTD”), (ECF No. 22), Defendant Harvey Scholl's Motion to Dismiss Plaintiff's Amended Complaint (“Scholl MTD”), (ECF No. 24), and Plaintiff's Response to Defendants' Second Motion to Dismiss (“Opp'n”), (ECF No. 25). Having considered the Parties' arguments and the law, the Court GRANTS IN PART Defendants' Motion to Dismiss.

         BACKGROUND

         Plaintiff asserts various claims stemming from alleged phone calls Defendants placed to Plaintiff without prior authorization. (See generally First Amended Complaint (“FAC”), ECF No. 21.) Plaintiff alleges that Defendants made the phone calls with an Automatic Telephone Dialing System, which can be verified by the “click and pause” contained at the start of “a full and complete recording” Plaintiff has of one such call. (FAC 3; see also Id. at 5 (alleging that one of Defendants' agents “admitted on the call that he used an ATDS to initiate the dialing of the call”).) Plaintiff further asserts that the purpose of Defendants' calls were to “sell . . . usurious loans into California without a California Finance Lender license or a California Real Estate Broker license.” (Id. at 11 (noting that Defendants sold loans at over 10% interest in violation of California law); id. at 13 (“Defendant did, in fact, sell and continues to sell illegal loans into California, including express and intentional selling to Plaintiff.”).) These calls allegedly harmed Plaintiff in various ways. (Id. at 12-14.) Based on these facts, Plaintiff identifies five causes of action:

(1) [violation of the] Telephone Consumer Protection Act, (2) fraud, (3) violation of Business & Professions Code 17200 for unfair business practices, (4) violation of California's Invasion of Privacy Act at Penal Code 630, et seq., and (5) [violation of] RICO under 18 USC §1961, §19622 and §1964.

(See FAC 2; see also Id. at 26-27.)

         On April 11, 2016, Plaintiff filed the instant case in California Superior Court (Anton Ewing v. Integrity Capital Solutions, Inc., , 37-2016-00011562-CU-BT-CTL), which Defendants subsequently removed to Federal Court. (Defs. Integrity Capital Sols., Inc. and Michelle [sic] Sharpe's Notice of Removal (“Removal Notice”) ¶ 1, ECF No. 1.) Defendants previously moved to dismiss Plaintiff's cause of action for violation of the Racketeering Influence and Corrupt Organizations Act (“RICO”), (ECF No. 3), which the Court granted, (Order Granting Defendants' Motion to Dismiss (“First MTD Order”), (ECF No. 19)). However, the Court granted Plaintiff leave to amend his Complaint, (ECF No. 19), which Plaintiff did. Defendants now move to dismiss the First Amended Complaint in its entirety. (ECF No. 22.)

         LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted, ” generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations, ' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.' ” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

         “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.' ” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “ ‘merely consistent with' a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. This review requires context-specific analysis involving the Court's “judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.' ” Id. Additionally, when a plaintiff proceeds pro se the court must “construe the pleadings liberally and . . . afford the p[laintiff] the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         Finally, the Court will grant leave to amend unless it determines that no modified contention “consistent with the challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).

         ANALYSIS

         Defendants move to dismiss Plaintiff's First Amended Complaint in its entirety.[1](ICS MTD 1-2.) In the 1.5 pages Defendants devote to their Motion to Dismiss, Defendants generally argue that “the FAC is almost wholly conclusionary [sic], and the claims by the way they are pled demonstrate they are not tethered on facts.” (ICS MTD 1.) Defendants' sole citations to authority are to (1) Federal Rule of Civil Procedure 12(b)(6); (2) Federal Rule of Civil Procedure 8(a); (3) Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and (4) Ashcroft v. Iqbal, 556 U.S. 662 (2009). Defendants' Analysis Section reads, in total:

For all the reasons set forth in this Court's February 27, 2017 order (docket # 19), the FAC should be dismissed. Indeed, Defendants' [sic] submit the FAC is even worse ...

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