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. 70.] 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
10, 2019, Plaintiff Zach Tuck proceeding pro se,
filed his initial complaint against nineteen 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 October 16, 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. 61.]
On October 21, 2019, Plaintiff filed his FAC. [Doc. No. 65.]
The FAC is alleged against only Defendant Portfolio Recovery
Associates, LLC. [Id.] In addition to removing the
remaining defendants from his initial complaint, Plaintiff
also removed his TCPA claims. [Id.]
specific allegations against PRA, the FAC alleges that in
December 2017, Plaintiff discovered delinquent accounts
reported by PRA which he disputed. [Id. at
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 November 4, 2019 and set a
hearing date (for briefing purposes only) of December 16,
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 December
16, 2019, Plaintiff's opposition to the motion to dismiss
was due on December 2, 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. 43, 44, 53.] Plaintiff also jointly filed motions
to dismiss other defendants in this case after the pending
motion to dismiss was filed by PRA. [Doc. Nos. 72, 73.]
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. Plaintiff's FAC, much like his
initial complaint, 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. 65 at ¶ 41.] 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. § 1681s-2(c)(1);
Gorman v. Wolpoff & Abramson, LLP, 584 F.3d
1147, 1162 (9th Cir. 2009).
CCRAA allegations are merely restatements of the statute and
its specific provisions under sections 1785.25(c),
1785.26(b), 1785.30, and alleged against all the defendants
generally. [Doc. No. 65 at ¶ 44.] Plaintiff's CCRAA
claims are preempted by the FCRA. The FCRA provides that
“[n]o requirement or prohibition may be imposed under
the laws of any State . . . relating to the responsibilities
of persons who furnish information to consumer reporting
agencies.” 15 U.S.C. § 1681t(b)(1)(F). The Ninth
Circuit has held that section 1785.25(a) is ...