(PS) Clewies v. AT&T et al

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/14/2023 RECOMMENDING that this Action #1 , #4 be dismissed with prejudice; and The Clerk of Court be directed to close this case. These Findings and Recommendations are submitted to U.S. District Judge Dale A. Drozd; Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRYL G. CLEWIES,

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Plaintiff,

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v.

FINDINGS AND RECOMMENDATINOS TO
DISMISS
(ECF Nos. 1, 2, 4.)

AT&T INC.,

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No. 2:23–cv–834–DAD–KJN PS

Defendants.

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Plaintiff, proceeding without counsel in this action, previously requested leave to amend

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without prepayment of the filing fee (“IFP”). 1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing

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the commencement of an action “without prepayment of fees or security” by a person who is

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unable to pay such fees). This request was granted, but the undersigned found plaintiff’s

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complaint deficient, noted the issues with the claims as stated, and granted leave to amend. (ECF

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No. 3.) Plaintiff timely submitted his amended complaint (the “1AC”). (ECF No. 4.) However,

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instead of correcting for the errors noted in the previous order, plaintiff has chosen to double

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down on his deficient claim under the Fair Debt Collection Practices Act. Thus, the undersigned

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recommends plaintiff’s 1AC be dismissed and leave to amend be denied.

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Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to
E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72.
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Legal Standards

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A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which

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relief can be granted.” Rule 12(b)(6). A complaint fails to state a claim if it either lacks a

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cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix,

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Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a

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complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic

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recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Id.

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When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pleaded factual allegations as true, Erickson v. Pardus, 551 U.S.

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89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan

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v. Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true

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“conclusory [factual] allegations that are contradicted by documents referred to in the complaint,”

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or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v.

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CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).

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Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7

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(9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is

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to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it

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appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31

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(9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be

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given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).

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Analysis

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Plaintiff’s first amended complaint restates his intent to attempt to raise a claim under the

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Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et. seq. Named as defendant in the 1AC is

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AT&T. The complaint labels AT&T as a “debt collector” as defined under the act, but indicates

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that plaintiff’s dispute with AT&T concerns a debt the corporation attempted to collect from

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plaintiff on an account between the two parties. (ECF No. 4.) An addendum to the original

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complaint indicated plaintiff entered into an agreement with AT&T for internet services, but

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between June of 2022 and the present, the company failed to provide him with this service despite

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the company charging him a monthly fee. (See ECF No. 1.)

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As the court previously stated, plaintiff cannot bring an FDCPA claim against AT&T for

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the company’s attempt to collect on its own account. The FDCPA, by its stated terms, allows for

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a plaintiff to bring suit against debt collectors. Baker v. G.C. Services Corp., 677 F.2d 775 (9th

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Cir. 1982). An entity that collects a debt owed to itself does not qualify as a “debt collector”

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under the FDCPA. Barnes v. Routh Crabtree Olsen PC, 963 F.3d 993, 997 (9th Cir. 2020) (“Our

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cases explain that a debt collector is a person who engages in ‘the collection of a money debt’ on

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behalf of a third party.”) (emphasis added). Thus, plaintiff’s complaint must be dismissed.

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Ordinarily, the court liberally grants a pro se plaintiff leave to amend. However, plaintiff

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has previously been informed he could not bring an FDCPA claim against AT&T based on these

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facts; instead of heeding the court’s guidance, plaintiff simply reasserted this same claim in the

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1AC. Because plaintiff continues to file only slightly different versions of the same pleadings in

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his attempts to amend, the court concludes that granting further leave to amend would be futile.

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Cahill, 80 F.3d at 339.

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RECOMMENDATIONS

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The action be DISMISSED WITH PREJUDICE; and

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2. The Clerk of Court be directed to CLOSE this case.

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These findings and recommendations are submitted to the United States District Judge assigned to

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the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after
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being served with these findings and recommendations, plaintiff may file written objections with

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the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455

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(9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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Dated: June 14, 2023

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clew.834

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