Vasquez v. States Recovery Systems

Filing 19

ORDER granting 7 Motion to Dismiss signed by Judge Garland E. Burrell, Jr on 11/30/11: Plaintiff is granted ten (10) days from the date on which this order is filed to file a second amended complaint. (Kaminski, H)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 Michelle Vasquez, Plaintiff, 9 v. 10 11 State Recovery Systems, Inc., 12 Defendant. ________________________________ ) ) ) ) ) ) ) ) ) ) 2:11-cv-1609-GEB-EFB ORDER GRANTING DEFENDANT’s MOTION TO DISMISS* 13 Defendant moves for dismissal of Plaintiff’s verified first 14 15 amended complaint (“FAC”) 16 12(b)(6). Defendant argues the motion should be granted because the FAC 17 does not contain sufficient factual allegations to state viable claims. 18 The FAC is comprised of a claim alleged under the federal Fair Debt 19 Collection 20 California Fair Debt Collection Practices Act (“Rosenthal Act”). Practices Act under Federal (“FDCPA”) and Rule a of claim Civil alleged Procedure under the 21 When deciding a motion to dismiss a complaint, an inquiry is 22 made into “whether the complaint’s factual allegations, together with 23 all reasonable inferences, state a plausible claim for relief.” Cafasso, 24 U.S. ex rel. v. General Dynamics C4 Systems, 637 F.3d 1047, 1054 (9th 25 Cir. 2011) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)). 26 The material allegations of the complaint are accepted as true and all 27 28 * argument. This matter is deemed suitable for decision without oral E.D. Cal. R. 230(g). 1 1 reasonable inferences are drawn in favor of the nonmovant. Al-Kidd v. 2 Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, this tenet “is 3 inapplicable to legal conclusions,” since “[a] pleading that offers 4 ‘labels and conclusions’ or ‘a formulaic recitation of the elements of 5 a cause of action will not do.’ Nor does a complaint suffice if it 6 tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” 7 Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 8 U.S. 544, 555, 557 (2007)). “In sum, for a complaint to survive a motion 9 to dismiss, the nonconclusory ‘factual content,’ and reasonable 10 inferences from that content, must be plausibly suggestive of a claim 11 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 12 962, 969 (9th Cir. 2009) (internal citation omitted). 13 Plaintiff’s FAC essentially comprises the following 14 allegations: “Defendant is a debt collector as that term is defined by 15 15 U.S.C. 1692a(6) and Cal. Civ. Code § 1788.2(c)”; Defendant “sought to 16 collect a consumer debt [as that term is defined by 15 U.S.C. 1692a(5) 17 and Cal. Civ. Code § 1788.2(h)]”; “In May 2011, Defendant threatened to 18 send Plaintiff’s case to ‘legal’ and garnish her wages[]”; “At the time 19 this threat was made, Defendant had not obtained a judgment against 20 Plaintiff therefore they had no legal authority by which to garnish 21 Plaintiff’s 22 1692e(4)-(5) of the FDCPA and Cal. Civ. Code sections 1788.10(e) and 23 1788.17 of the Rosenthal Act. (FAC ¶¶ 7-8, 11-13, 18, ECF No. 5.) wages[]”; Defendant violated 15 U.S.C. §§ 1692d and 24 Defendant argues Plaintiff’s allegations do not demonstrate 25 that Defendant was attempting to collect a “debt” or a “consumer debt” 26 prescribed in either Act; that Defendant qualifies as a “debt collector” 27 prescribed in either Act; or that Defendant did anything unlawful under 28 either Act. (Mot. 2:16-21, 5: 25-28, 6:11-13, 9:7-10:7.) 2 1 Plaintiff’s FAC comprises only conclusory allegations that are 2 insufficient to state an actionable claim against Defendant under either 3 Act. See Lopez v. Rash & Curtis Assocs., No. 10-cv-1172, 2010 U.S. Dist. 4 LEXIS 91744, at *5-6, 2010 WL 3505079, at *2 (E.D. Cal. Sep. 3, 2010) 5 (finding that “merely mak[ing] the conclusory statement that Defendant 6 is a debt collector as defined by the FDCPA” is insufficient to state a 7 claim for relief); 15 U.S.C. §§ 1692e(4) and 1692e(5) of the FDCPA 8 (proscribing “[t]he representation or implication that nonpayment of any 9 debt will result in . . . [wage] garnishment . . . unless such action is 10 lawful and the debt collector or creditor intends to take such action” 11 and “[t]he threat to take any action that cannot be legally taken or 12 that is not intended to be taken.”)(emphasis added); Cal. Civ. Code 13 section 1788.10(e) of the Rosenthal Act (proscribing “[t]he threat to 14 any person that nonpayment of the consumer debt may result in the arrest 15 of the debtor or the seizure, garnishment, attachment or sale of any 16 property or the garnishment or attachment of wages of the debtor, unless 17 such action is in fact contemplated by the debt collector and permitted 18 by the law”)(emphasis added). 19 For the stated reasons, Defendant’s dismissal motion is 20 GRANTED. However, Plaintiff is granted ten (10) days from the date on 21 which this order is filed to file a second amended complaint addressing 22 the deficiencies in her claims. Plaintiff is notified that failure to 23 file an amended complaint within the prescribed time period will result 24 in dismissal with prejudice under Federal Rule of Civil Procedure 41(b). 25 Dated: November 30, 2011 26 27 28 GARLAND E. BURRELL, JR. United States District Judge 3

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