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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Michelle Vasquez,
Plaintiff,

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v.

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State Recovery Systems, Inc.,

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Defendant.
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2:11-cv-1609-GEB-EFB
ORDER GRANTING DEFENDANT’s
MOTION TO DISMISS*

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Defendant moves for dismissal of Plaintiff’s verified first

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amended complaint

(“FAC”)

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12(b)(6). Defendant argues the motion should be granted because the FAC

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does not contain sufficient factual allegations to state viable claims.

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The FAC is comprised of a claim alleged under the federal Fair Debt

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Collection

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California Fair Debt Collection Practices Act (“Rosenthal Act”).

Practices

Act

under

Federal

(“FDCPA”)

and

Rule

a

of

claim

Civil

alleged

Procedure

under the

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When deciding a motion to dismiss a complaint, an inquiry is

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made into “whether the complaint’s factual allegations, together with

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all reasonable inferences, state a plausible claim for relief.” Cafasso,

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U.S. ex rel. v. General Dynamics C4 Systems, 637 F.3d 1047, 1054 (9th

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Cir. 2011) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)).

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The material allegations of the complaint are accepted as true and all

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*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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reasonable inferences are drawn in favor of the nonmovant. Al-Kidd v.

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Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, this tenet “is

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inapplicable to legal conclusions,” since “[a] pleading that offers

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‘labels and conclusions’ or ‘a formulaic recitation of the elements of

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a cause of action will not do.’ Nor does a complaint suffice if it

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tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

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Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555, 557 (2007)). “In sum, for a complaint to survive a motion

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to

dismiss,

the

nonconclusory

‘factual

content,’

and

reasonable

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inferences from that content, must be plausibly suggestive of a claim

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entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d

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962, 969 (9th Cir. 2009) (internal citation omitted).

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Plaintiff’s

FAC

essentially

comprises

the

following

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allegations: “Defendant is a debt collector as that term is defined by

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15 U.S.C. 1692a(6) and Cal. Civ. Code § 1788.2(c)”; Defendant “sought to

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collect a consumer debt [as that term is defined by 15 U.S.C. 1692a(5)

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and Cal. Civ. Code § 1788.2(h)]”; “In May 2011, Defendant threatened to

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send Plaintiff’s case to ‘legal’ and garnish her wages[]”; “At the time

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this threat was made, Defendant had not obtained a judgment against

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Plaintiff therefore they had no legal authority by which to garnish

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Plaintiff’s

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1692e(4)-(5) of the FDCPA and Cal. Civ. Code sections 1788.10(e) and

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1788.17 of the Rosenthal Act. (FAC ¶¶ 7-8, 11-13, 18, ECF No. 5.)

wages[]”;

Defendant

violated

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U.S.C.

§§

1692d

and

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Defendant argues Plaintiff’s allegations do not demonstrate

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that Defendant was attempting to collect a “debt” or a “consumer debt”

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prescribed in either Act; that Defendant qualifies as a “debt collector”

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prescribed in either Act; or that Defendant did anything unlawful under

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either Act. (Mot. 2:16-21, 5: 25-28, 6:11-13, 9:7-10:7.)
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Plaintiff’s FAC comprises only conclusory allegations that are

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insufficient to state an actionable claim against Defendant under either

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Act. See Lopez v. Rash & Curtis Assocs., No. 10-cv-1172, 2010 U.S. Dist.

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LEXIS 91744, at *5-6, 2010 WL 3505079, at *2 (E.D. Cal. Sep. 3, 2010)

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(finding that “merely mak[ing] the conclusory statement that Defendant

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is a debt collector as defined by the FDCPA” is insufficient to state a

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claim for relief); 15 U.S.C. §§ 1692e(4) and 1692e(5) of the FDCPA

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(proscribing “[t]he representation or implication that nonpayment of any

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debt will result in . . . [wage] garnishment . . . unless such action is

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lawful and the debt collector or creditor intends to take such action”

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and “[t]he threat to take any action that cannot be legally taken or

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that is not intended to be taken.”)(emphasis added); Cal. Civ. Code

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section 1788.10(e) of the Rosenthal Act (proscribing “[t]he threat to

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any person that nonpayment of the consumer debt may result in the arrest

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of the debtor or the seizure, garnishment, attachment or sale of any

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property or the garnishment or attachment of wages of the debtor, unless

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such action is in fact contemplated by the debt collector and permitted

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by the law”)(emphasis added).

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For

the

stated

reasons,

Defendant’s

dismissal

motion

is

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GRANTED. However, Plaintiff is granted ten (10) days from the date on

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which this order is filed to file a second amended complaint addressing

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the deficiencies in her claims. Plaintiff is notified that failure to

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file an amended complaint within the prescribed time period will result

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in dismissal with prejudice under Federal Rule of Civil Procedure 41(b).

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Dated:

November 30, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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