Marley v. PYOD LLC et al

Filing 12

ORDER, denying Plaintiff's motion to strike 9 ; granting Defendants' motion to dismiss 8 ; because an amendment cannot save this complaint, it is ordered that this action is dismissed with prejudice; the Clerk shall enter final judgment. Signed by Senior Judge Frederick J Martone on 3/5/13.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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PYOD, LLC; Guglielmo & Associates,)
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PLLC,
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Defendants.
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Darren Marley,

No. CV 13-00010-PHX-FJM
ORDER

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The court has before it defendants’ motion to dismiss (doc. 8), plaintiff’s motion to
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strike defendant Guglielmo & Associates, PLLC’s (“Guglielmo”) motion to dismiss (doc. 9)
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and defendants’ response (doc. 10). Plaintiff did not file a reply in support of his motion to
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strike or a response to the motion to dismiss and the time for doing so has expired.
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Defendants filed their motion to dismiss plaintiff’s complaint for failure to state a
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claim. Rather than respond to the motion, plaintiff filed a motion to strike defendants’
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motion to dismiss, arguing that Guglielmo cannot represent itself in a pro se capacity. But
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Guglielmo is not representing itself pro se.

It is represented by attorney Christopher

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Kalabus, a lawyer within the firm of Guglielmo & Associates. Plaintiff’s motion to strike
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is DENIED (doc. 9).
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Plaintiff did not respond to defendants’ motion to dismiss and his failure to do so may
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be deemed a consent to the granting of the motion and we may dispose of the motion

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summarily. LRCiv 7.2(i).

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Plaintiff asserts four causes of action in his complaint. In count 1, he alleges that

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defendants violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681b, by

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obtaining his consumer credit report. But the FCRA specifically authorizes credit inquiries

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for the purpose of “review or collection of an account.” Id. § 1681b(a)(3)(A). Plaintiff

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acknowledges that defendants are attempting to collect on an account. Compl. ¶ 8.

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Therefore, defendants were authorized to obtain plaintiff’s credit report. Count 1 is

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dismissed for failure to state a claim.

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In count 2, plaintiff asserts that defendants failed to respond to his demand for

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validation as required by the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §

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1692g(b). A consumer may seek verification of the debt within 30 days of the initial written

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notice. “[V]erification of a debt involves nothing more than the debt collector confirming

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in writing that the amount being demanded is what the creditor is claiming is owed.”

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Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999).

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Plaintiff acknowledges in his complaint that he received his initial notice letter

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regarding the debt in June, 2012. Compl. ¶ 7. He also acknowledges that he did not make

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a request for validation until December 5, 2012, well outside the 30 days provided in the Act.

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Id. ¶ 9. In addition, various documents appended to plaintiff’s complaint, including the state

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court complaint, the affidavit of indebtedness, and affidavit of transfer, provide the

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information required under the FDCPA. Count 2 is dismissed for failure to state a claim.

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Plaintiff asserts a claim for malicious prosecution in count 3 and abuse of process in

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count 4, related to a legal proceeding filed by defendants in state court to collect the debt.

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Plaintiff fails to allege that the underlying action has been terminated in his favor—an

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essential element of a malicious prosecution claim. See Compl. ¶ 27 (indicating that the state

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court action is still pending). Therefore, count 3 fails to state a claim.

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A claim for abuse of process requires a showing of (1) an ulterior, improper purpose

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and (2) a “wilful act in the use of judicial process not proper in the regular conduct of the
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proceeding.” Bird v. Rothman, 128 Ariz. 599, 602, 627 P.2d 1097, 1100 (Ct. App. 1981).

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Plaintiff alleges generally that defendants filed the state court action for “an ulterior

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purpose,” and that the “action filed contained materially false information intended to

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intimidate, harass, defame, and retaliate.” Compl. ¶ 31. These broad, conclusory statements

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are insufficient to state a plausible claim for relief. Moreover, collection of an alleged unpaid

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debt is a proper purpose for judicial process. “[T]here is no liability when the defendant has

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done nothing more than legitimately utilize the process for its authorized purpose, even

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though with bad intentions.” Nienstedt v. Wetzel, 133 Ariz. 348, 353, 651 P.2d 876, 881 (Ct.

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App. 1982). Count 4 is dismissed for failure to state a claim.

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IT IS ORDERED DENYING plaintiff’s motion to strike (doc. 9).

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IT IS FURTHER ORDERED GRANTING defendants’ motion to dismiss (doc. 8).

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Because an amendment cannot save this complaint, it is ordered that this action is dismissed

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with prejudice. The clerk shall enter final judgment.

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We urge plaintiff to seek the advice of counsel. If he does not have a lawyer, he may

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wish to call the Lawyer Referral Service of the Maricopa County Bar Association at 602-

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257-4434.

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DATED this 5th day of March, 2013.

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