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Tuck v. Portfolio Recovery Associates, L.L.C.

United States District Court, S.D. California

October 16, 2019

ZACH TUCK, Plaintiff,

          ORDER ON MOTIONS TO DISMISS [DOC. NOS. 21, 23, 27, 30, 45]


         Before the Court are Defendants Portfolio Recovery Associates L.L.C., Diversified Consultants, Inc., Collection at Law, Inc., and Experian Information Solutions Inc.'s (collectively “Defendants”) motions to dismiss Plaintiff's complaint. [Doc. Nos. 21, 23, 27, 30, 45.] The Court deems the motions suitable for determination on the papers submitted and without oral argument. See S.D. Cal. CivLR 7.1(d)(1). For the reasons set forth below, Plaintiff's complaint is dismissed with leave to amend.

         I. BACKGROUND

         On July 10, 2019, Plaintiff Zach Tuck proceeding pro se, filed his complaint against nineteen different business entities. [Doc. No. 1.] The pending motions to dismiss Plaintiff's complaint are made on the same or similar grounds. The complaint alleges violations under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”); the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”); the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”); the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785, et seq. (“CCRAA”); and the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. (“Rosenthal Act” or “RFDCPA”).

         A. Factual Allegations as to the “Credit Bureau Defendants”

         Plaintiff categorizes Defendants Portfolio Recovery Associates L.L.C., Diversified Consultants, Inc., and Collection at Law, Inc. as the “credit bureau defendants.” [Doc. No. 1 at ¶ 54.] According to the complaint, the credit bureau defendants called Plaintiff's emergency cell phone number more than twenty times, many times before 8:00 a.m. and after 9:00 p.m. between the dates of August 20, 2015, and July 10, 2019, often on the same business day. [Id. at ¶¶ 58-60.] Plaintiff alleges that none of these calls were made for emergency purposes and were made by using automatic telephone dialing system capabilities or artificial or prerecorded messages or voices. [Id. at ¶¶ 61, 63.] Plaintiff also states that some of the named credit bureau defendants called Plaintiff more than one hundred and fifty times at all hours of the day often on the same day, attempting to assert a right to enforce a consumer debt allegedly owed by Plaintiff. [Id. at ¶¶ 62, 64.] Further, Plaintiff alleges that on numerous occasions he demanded in writing that the credit bureau defendants provide him with written “verification” and consumer debt “validation” as it pertained to any alleged consumer debt, which the credit bureau defendants have ignored. [Id. at ¶ 66.] Plaintiff alleges he has no business debt, and therefore the alleged debt could only have been used for personal, family, or household purposes. [Id. at ¶ 72.] Plaintiff also states the “alleged debt is not [his] consumer debt” [Id. at ¶ 116], and “an alleged non-existent consumer debt he never owed.” [Id. at ¶ 138].

         B. Factual Allegations as to the “Credit Reporting Agency Defendants”

         Plaintiff categorizes Defendant Experian Information Solutions Inc. as one of the “credit reporting agency defendants.” [Id. at ¶ 55.] According to the complaint, around January 2016, Plaintiff checked his consumer credit report from the credit reporting agency defendants and discovered several negative consumer credit accounts reported by the credit bureau defendants named above as well as from the credit reporting agency defendants. [Id. at ¶ 156.] Plaintiff states all of these negative accounts were unfamiliar to him and he was never informed by any of the furnishers or the credit reporting agency defendants of their negative credit reporting activities. [Id.] Plaintiff contacted all of the Defendants disputing the negative accounts and requested an investigation of such. [Id. at ¶ 157.] After further requests for investigation, the Defendants continued to report the negative accounts on his credit report and failed to provide him the requested “verification” and “validation.” [Id. at ¶¶ 158-160.] Plaintiff alleges he has never had any business dealings or had any accounts with any of the Defendants. [Id. at ¶ 172.]


         Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

         Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a party make “a short and plain statement of the claim showing that the pleader is entitled to relief, ” a “pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”). “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.


         Initially, each Defendant contends that Plaintiff's claims fail as a matter of law because Plaintiff improperly asserts sweeping allegations against all named Defendants without specifying which Defendants committed which act, thereby failing to give proper notice. The Court agrees with Defendants that Plaintiff has failed to comply with Rule 8's pleading standards. Plaintiff's complaint is replete with broad conclusory allegations towards all named Defendants generally and fails to identify which Defendant is responsible for which alleged wrongful act. Moreover, Plaintiff's allegations of any wrongful acts consist primarily of copying the statutory language under each of his claims with little to no facts offered in support. Plaintiff categorizes the Defendants and then proceeds to refer to all Defendants throughout the complaint with abbreviations. Thereafter, Plaintiff groups all of the Defendants together throughout the complaint. In some instances, Plaintiff refers to the abbreviated entities “CPS, PR, HH, MAB, ANSI, MBLLC” which do not appear to be in reference to any parties in this case. [Doc. No. 1 at ¶¶ 150, 159.]

         Plaintiff's generalized allegations do not provide the Defendants with fair notice as to the basis of Plaintiff's claims because Defendants and the Court cannot determine which Defendants are responsible for which act. “Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ...

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