United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE [Doc.
Cathy Ann Bencivengo United States District Judge
the Court is Defendant Portfolio Recovery Associates,
LLC's (“PRA”) motion to dismiss
Plaintiff's first amended complaint (“FAC”).
[Doc. No. 42.] Defendant Hunt & Henriques filed a notice
of joinder to PRA's motion to dismiss. [Doc. No. 46.] The
Court deems the motion 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 FAC is dismissed with prejudice.
1, 2019, Plaintiff Eric Caruso proceeding pro se,
filed his initial complaint against nine defendants alleging
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”). On September 30, 2019, the Court
dismissed Plaintiff's complaint with leave to amend for
failing to comply with Rule 8 due to Plaintiff's broad,
conclusory allegations against all defendants generally and
under Rule 12(b)(6) for failing to sufficiently plead a claim
under each of the statutes identified above. [Doc. No. 39.]
On October 8, 2019, Plaintiff filed his FAC. [Doc. No. 40.]
The FAC is alleged against Defendant Portfolio Recovery
Associates, LLC, and three other defendants. [Id.]
In addition to removing several defendants from his initial
complaint, Plaintiff also removed his TCPA claims.
specific allegations against each defendant, the FAC alleges
that in September 2018, Plaintiff discovered delinquent
accounts reported by the defendants which he disputed.
[Id. at ¶¶ 33-40.] The FAC then proceeds
to assert Plaintiff's causes of action against the four
defendants without any further specific allegations to each
of the defendants. [Id. at ¶¶ 46-62.]
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).
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.
initial matter, Plaintiff's failure to oppose PRA's
motion to dismiss constitutes consent to granting the motion.
The motion to dismiss was filed on October 22, 2019 and set a
hearing date (for briefing purposes only) of November 26,
2019. Civil Local Rule 7.1.e.2 requires a party opposing a
motion to file an opposition or statement of nonopposition no
later than fourteen calendar days before the noticed hearing.
Thus, based on the hearing date of November 26, 2019,
Plaintiff's opposition to the motion to dismiss was due
on November 12, 2019. No opposition has been filed. Under the
local rules, Plaintiff's failure to oppose “may
constitute a consent to the granting of [the] motion.”
See S.D. Cal. CivLR 7.1.f.3.c.
courts have broad discretion to enact and apply local rules,
including dismissal of a case for failure to comply with the
local rules. Ghazali v. Moran, 46 F.3d 52, 53 (9th
Cir. 1995) (affirming grant of an unopposed motion to dismiss
under local rule by deeming a pro se litigant's failure
to oppose as consent to granting the motion). Before
dismissing an action for failure to comply with local rules,
the district court “weigh[s] several factors:
‘(1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its docket; (3) the risk of prejudice to the defendants; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
sanctions.'” Ghazali, 46 F.3d at 53
(quoting Henderson v. Duncan, 779 F.2d 1421, 1423
(9th Cir. 1986)). Plaintiff has previously filed several
notices of settlements, joint motions to dismiss, and
oppositions to the previous motions to dismiss in this case.
[Doc. Nos. 15, 38.] Plaintiff also jointly filed a motion to
dismiss another party in this case after the pending motion
to dismiss was filed by PRA. [Doc. No. 44.]
the Court assumes the lack of opposition to PRA's motion
to dismiss is intentional and constitutes Plaintiff's
consent to the granting of the motion. Here, while the
Ghazali factors support granting the motion based on the lack
of opposition alone, upon review of the motion and
Plaintiff's FAC, the Court finds that Plaintiff failed to
remedy the deficiencies identified in the Court's
previous Order dismissing the complaint with leave to amend
and that no argument in opposition could possibly persuade
the Court otherwise.
again alleges broad, conclusory allegations against the
defendants. The only specific factual allegations attributed
to each defendant that Plaintiff amended were the alleged
delinquent accounts the defendants reported. Beyond that,
Plaintiff's FAC, much like his initial complaint, groups
the remaining defendants together and broadly alleges
misconduct by parroting statutory language under each of
Plaintiff's causes of action.
FCRA allegations are limited to 15 U.S.C. § 1681s-2(a).
[Doc. No. 40 at ¶ 47.] As the Court stated in its
previous Order, there is no private right of action under
section 1681s-2(a); a violation of this section can be
pursued only by federal or state officials, and not by a
private party. See 15 U.S.C. § ...