Whitaker v. Sallie Mae Incorporated
ORDER granting 8 Defendant's Partial Motion to Dismiss Plaintiff's First Amended Complaint. Plaintiff's First Claim for Relief of his Amended Complaint (Doc. 1-1) is dismissed without prejudice. Plaintiff may file an amended complaint by March 14, 2012. Signed by Judge Neil V Wake on 2/21/12.(LSP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James L. Whitaker,
No. CV 12-00157-PHX-NVW
Sallie Mae, Inc.,
Before the Court is Defendant’s Partial Motion to Dismiss Plaintiff’s First
Amended Complaint (Doc. 8). Although Plaintiff’s response to Defendant’s motion was
due on February 17, 2012, no response has been filed with the Court. Failure to respond
alone is grounds for the Court to grant Defendant’s motion to dismiss. See L.R. Civ.
acquiescence to the motion being granted, the Court also agrees with Defendant’s
substantive analysis and will therefore grant Defendant’s motion to dismiss on the merits.
Plaintiff’s amended complaint seeks relief related to Defendant’s attempts to
collect a debt and asserts two causes of action: (1) invasion of privacy under Ariz. Rev.
Stat. § 13-2921(E); and (2) violation of the Fair Debt Collection Practices Act (Doc. 1-1).
Defendant moves to dismiss Plaintiff’s first cause of action on the basis that Ariz. Rev.
Stat. § 13-2921(E) is a criminal statute defining harassment and does not provide a
private cause of action. While the Court agrees that no civil cause of action is available
to Plaintiff under Ariz. Rev. Stat. § 13-2921(E), and will accordingly grant Defendant’s
While Plaintiff’s failure to respond to Defendant’s motion constitutes
motion to dismiss on that basis, Plaintiff’s first cause of action is entitled “invasion of
privacy.” Although the substance of the count alleges harassment and cites to Ariz. Rev.
Stat. § 13-2921(E), on the facts alleged, Plaintiff may be able to amend his complaint to
state a common law claim for relief sounding in tort. See Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987) (“[F]ederal courts [are to] liberally construe the ‘inartful
pleading’ of pro se litigants.”). Because leave to amend should be freely given “when
justice so requires,” Fed. R. Civ. P. 15(a)(2), and because Plaintiff may be able to fairly
plead a common law cause of action, such as intrusion upon seclusion, on the facts
alleged, Plaintiff will be given leave to amend his complaint with respect to his First
Claim for Relief. See Eldridge, 832 F.2d at 1135 (noting that liberal policy favoring
amendments to pleadings should be “applied even more liberally to pro se litigants”).
IT IS THEREFORE ORDERED that Defendant’s Partial Motion to Dismiss
Plaintiff’s First Amended Complaint (Doc. 8) is granted. Plaintiff’s First Claim for
Relief of his Amended Complaint (Doc. 1-1) is dismissed without prejudice. Plaintiff
may file an amended complaint by March 14, 2012.
Dated this 21st day of February, 2012.
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