Makreas v. The Moore Law Group, A.P.C. et al
Filing
36
ORDER GRANTING IN PART AND DENYING IN PART MOORE LAW GROUP'S MOTION TO DISMISS; GRANTING CITIBANK'S MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO FILE SECOND AMENDED COMPLAINT; CONTINUING CASE MANAGEMENT CONFERENCE. If Makreas wishes to f ile a Second Amended Complaint, Makreas shall file a Second Amended Complaint no later than October 28, 2011. The Case Management Conference is continued from October 28, 2011 to December 9, 2011, at 10:30 a.m. A Joint Case Management Statement shall be filed no later than December 2, 2011. Signed by Judge Maxine M. Chesney on October 11, 2011. (mmclc1, COURT STAFF) (Filed on 10/11/2011) (Additional attachment(s) added on 10/11/2011: # 1 Certificate of Service) (tlS, COURT STAFF).
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
For the Northern District of California
United States District Court
10
11
NICK MAKREAS,
Plaintiff,
12
13
14
v.
THE MOORE LAW GROUP, A.P.C., et al.,
Defendants.
15
/
16
17
18
19
20
21
22
23
24
ORDER GRANTING IN PART AND
DENYING IN PART MOORE LAW
GROUP’S MOTION TO DISMISS;
GRANTING CITIBANK’S MOTION TO
DISMISS; AFFORDING PLAINTIFF
LEAVE TO FILE SECOND AMENDED
COMPLAINT; CONTINUING CASE
MANAGEMENT CONFERENCE
Before the Court are two motions to dismiss, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the First Amended Verified Complaint (“FAC”) filed by
plaintiff Nick Makreas (“Makreas”): (1) defendant The Moore Law Group, A.P.C.’s
(“Moore”) motion to dismiss, filed September 1, 2011; and (2) defendant Citibank (South
Dakota), N.A.’s (“Citibank”) motion to dismiss, filed September 1, 2011. Makreas, who
proceeds pro se, has filed opposition to each motion; each defendant has filed a reply.
Having read and considered the papers filed in support of and in opposition to the motions,
the Court rules as follows.1
25
26
No. C-11-2406 MMC
LEGAL STANDARD
Dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory
27
28
1
By order filed October 4, 2011, the matters were taken under submission.
1
or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v.
2
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires
3
only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’”
4
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P.
5
8(a)(2)). Consequently, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does
6
not need detailed factual allegations.” See id. Nonetheless, “a plaintiff’s obligation to
7
provide the grounds of his entitlement to relief requires more than labels and conclusions,
8
and a formulaic recitation of the elements of a cause of action will not do.” See id. (internal
9
quotation, citation, and alteration omitted).
10
In analyzing a motion to dismiss, a district court must accept as true all material
11
allegations in the complaint, and construe them in the light most favorable to the
12
nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
13
“To survive a motion to dismiss, a complaint must contain sufficient factual material,
14
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
15
129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “Factual allegations
16
must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S.
17
at 555. Courts “are not bound to accept as true a legal conclusion couched as a factual
18
allegation.” See Iqbal, 129 S. Ct. at 1950 (internal quotation and citation omitted).
19
Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider any
20
material beyond the complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896
21
F.2d 1542, 1555 n. 19 (9th Cir. 1990). Documents whose contents are alleged in the
22
complaint, and whose authenticity no party questions, but which are not physically attached
23
to the pleading, however, may be considered. See Branch v. Tunnell, 14 F.3d 449, 454
24
(9th Cir. 1994).
DISCUSSION
25
26
A. Moore’s Motion to Dismiss
27
1. First Cause of Action
28
In the First Cause of Action, Makreas alleges Moore violated two provisions of the
2
1
Fair Debt Collections Practice Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. The Court
2
considers in turn each of the provisions on which Makreas relies.
a. 15 U.S.C. § 1692g(a)
3
4
Pursuant to § 1692g(a), a debt collector must “send” a debtor, within five days of the
5
debt collector’s “initial communication” with the debtor, a written notice containing certain
6
information. See 15 U.S.C. § 1692g(a). Makreas alleges Moore left him a “voice mail
7
message” on April 7, 2011, and that “six days later,” i.e., April 13, 2011, he “received a
8
letter from Moore claiming that [Makreas] owed them a debt.” (See FAC ¶ 34.) Makreas
9
alleges the letter was not timely under § 1692g(a).2
10
As noted, Makreas alleges he “received” the letter six days after the April 7, 2011
11
voice message (see FAC ¶¶ 30, 31); consequently, even assuming the April 7, 2011 voice
12
message was an “initial communication,”3 the letter had to have been placed in the mail,
13
i.e., “sent,” no later than April 12, 2011, and thus within the requisite five days after such
14
“initial communication.”
15
16
Accordingly, to the extent the First Cause of Action is based on an alleged violation
of § 1692g(a), the First Cause of Action will be dismissed without leave to amend.
b. 15 U.S.C. § 1692e(11)
17
18
The FDCPA prohibits “any false, deceptive, or misleading representation or means
19
in connection with the collection of any debt.” See 15 U.S.C. § 1692e. Prohibited
20
representations and means include “[t]he failure to disclose in the initial written
21
communication with the consumer and, in addition, if the initial communication with the
22
consumer is oral, in that initial oral communication, that the debt collector is attempting to
23
collect a debt and that any information obtained will be used for that purpose, and the
24
failure to disclose in subsequent communications that the communication is from a debt
25
26
27
2
Makreas does not allege the content of the letter failed to comply with § 1692g(a);
rather, he challenges only the timeliness of the letter.
3
28
As discussed below, Makreas fails to allege sufficient facts to support a finding that
the April 7, 2011 voice message was an “initial communication.”
3
1
collector . . . .” See 15 U.S.C. § 1692e(11). A “communication,” for purposes of the
2
FDCPA, is “the conveying of information regarding a debt directly or indirectly to any
3
person through any medium.” See 15 U.S.C. § 1692a(2).
4
Makreas alleges he received thirteen “voice mail messages” from Moore, the first of
5
which was left on April 7, 2011 and the last on which was left on May 4, 2011. (See FAC
6
¶ 34.) Each message, according to Makreas, consisted of the caller’s stating her first and
7
last name, a statement that she was “calling from the Moore Law Group for Nick Makreas,”
8
and a request that Makreas “please return [her] call” at a specified phone number and
9
extension. (See FAC Ex. A.) Makreas alleges the messages violated the FDCPA
10
because, according to Makreas, they did not include the disclosure(s) required by
11
§ 1692e(11).
12
In seeking dismissal of said claim, Moore does not argue that any of the messages
13
included the information required by § 1692e(11), but, rather, that the messages were not
14
“communications” as defined in § 1692a(2).
15
A voice message can, under some circumstances, constitute a “communication.” In
16
Foti v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643 (S.D. N.Y. 2006), for example,
17
the district court considered a voice message stating it was from “NCO Financial Systems”
18
about “a personal business matter” and requesting the recipient return the call; the district
19
court found the message was a “communication,” reasoning the call “indirectly convey[ed]
20
information about [a] debt” because the listener was “familiar with the fact that NCO
21
Financial Systems is a debt collector.” See id. at 648, 658. As another example, in
22
Anchondo v. Anderson, Crenshaw & Associates, LLC, 583 F. Supp. 2d 1278 (D. N.M.), the
23
district court considered a voice message that “conveyed information regarding ‘an
24
important matter’ pertaining to ‘reference number 423635’ and [plaintiff’s] ‘account,’” and
25
held such message would constitute a “communication” if the plaintiff were able to
26
establish “the reference number or the account in question pertained to a debt,” see id. at
27
1281-82.
28
Here, as noted above, in addition to leaving voice messages, Moore is alleged to
4
1
have sent Makreas a letter stating Makreas owed Moore “a debt.” (See FAC ¶ 31.)
2
Makreas alleges some of the voice messages were left before he received the letter and
3
others were left after he received the letter. (See FAC ¶¶ 30, 31, 34.)
4
With respect to the messages left after Makreas received Moore’s letter, the Court,
5
at the pleading stage, cannot conclude Makreas is unable to establish such messages
6
were “communications,” given that, shortly before he heard those messages, he had
7
received a letter from Moore in which Moore informed him that he owed Moore a debt.4
8
Under such circumstances, subsequent voice messages from Moore requesting that
9
Makreas phone Moore could, arguably, be understood as indirectly conveying information
10
about the debt to which Moore had referred in its letter.5
11
With respect to the messages left before Makreas received Moore’s letter, however,
12
Makreas has failed to allege sufficient facts to support a finding such messages constituted
13
“communications” as defined by § 1692a(2). Makreas does not allege he was familiar with
14
Moore prior to his receiving the above-referenced letter, or that he otherwise would have
15
had any reason to know Moore was contacting him about a debt.
16
Accordingly, the First Cause of Action will be dismissed to the extent it alleges a
17
violation of § 1692g(a) and is based on voice messages left prior to Makreas’s receipt of
18
Moore’s letter, and will not be dismissed to the extent such cause of action is based on
19
voice messages left after receipt of said letter.
20
The Court will afford Makreas leave to amend to allege, if he can, any facts, as
21
22
23
24
25
26
27
28
4
Although Makreas does not indicate what, if any, other information was included in
the letter, the letter, as described by Makreas in the FAC, was a “communication” within the
meaning of § 1692a(2), and, indeed, constituted the “initial communication” between Moore
and Makreas. Consequently, in any further “communication,” Moore was required to
identify itself as a “debt collector.” See 15 U.S.C. § 1692e(11).
5
The Court notes that the Ninth Circuit, in considering a prior version of § 1692e(11),
held that where a debtor received “a follow up notice which only demand[ed] a payment as
earlier requested,” such “follow up notice” was not a “‘communication’ within which the
disclosure required by 15 U.S.C. § 1692e(11) must be made.” See Pressley v. Capital
Credit & Collection Service, Inc., 760 F.2d 922, 925 (9th Cir. 1985). The parties to the
instant action have not addressed the possible applicability of Pressley to Makreas’s
§ 1692e(11) claim.
5
1
opposed to legal conclusions, to support his allegation that the voice messages left prior to
2
the date on which he received Moore’s letter constitute “communications” for purposes of
3
the FDCPA.
4
2. Second Cause of Action
5
In the Second Cause of Action, Makreas alleges Moore violated the Fair Credit
6
Reporting Act (“FCRA”), 15 U.S.C. §§ 1681-1681x, by accessing his credit report for
7
improper purposes and by providing incorrect information to credit reporting agencies.
8
Moore contends Makreas has failed to state a claim under either theory. The Court
9
agrees.
10
The Court previously dismissed Makreas’s improper-access claim as alleged in the
11
initial complaint, for the reason that Makreas had failed to allege any facts to support his
12
conclusory allegation of improper access. Moreover, the Court, noting Makreas had
13
alleged Moore was attempting to collect a debt, noted the FCRA expressly permits a
14
person or entity to obtain a credit report for use “in connection with a credit transaction
15
involving the consumer on whom the information is to be furnished and involving the . . .
16
collection of an account of [ ] the consumer.” See 15 U.S.C. § 1681b(a)(3)(A). In the FAC,
17
Makreas again fails to allege any facts to support his conclusory assertion of “no
18
permissible purpose” (see FAC ¶ 54), and, consequently, again fails to state a claim. See
19
Iqbal, 129 S.Ct. at 1950 (holding “legal conclusions” not supported by “factual allegations”
20
fail to state claim upon which relief can be granted).
21
With respect to Makreas’ claim that Moore provided “erroneous and inaccurate
22
information” to a credit reporting agency (see FAC ¶ 61), the Court likewise finds Makreas
23
fails to state a claim upon which relief can be granted. Although the FCRA prohibits a
24
person or entity from providing to a credit reporting agency information the person or entity
25
“knows or has reasonable cause to believe is inaccurate,” see 15 U.S.C. § 1681s-
26
2(a)(1)(A), no private cause of action for such a violation exists, see 15 U.S.C. § 1681s-
27
2(d) (providing § 1681s-2(a) “shall be enforced exclusively” by certain government
28
agencies).
6
1
2
Accordingly, the Second Cause of Action, as alleged against Moore, will be
dismissed without leave to amend.
3
3. Third Cause of Action
4
In the Third Cause of Action, Makreas alleges Moore violated a section of the
5
Rosenthal Act, specifically, § 1788.17 of the California Civil Code. Section 1788.17
6
provides that, as a matter of California law, a debt collector must comply with 15 U.S.C.
7
§§ 1692b - 1692j, which sections constitute the substantive provisions of the FDCPA. See
8
Cal. Civil Code § 1788.17.
9
Third Cause of Action is, in part, derivative of the First Cause of Action. (See FAC
10
¶ 76.) For the reasons stated above with respect to the First Cause of Action, the Third
11
Cause of Action is (1) subject to dismissal without leave to amend to the extent it is based
12
on an alleged violation of § 1692g(a); (2) subject to dismissal with leave to amend to the
13
extent it is based on alleged violations of § 1692e(11) occurring before Makreas received
14
the above-referenced letter from Moore; and (3) is not subject to dismissal to the extent it is
15
based on alleged violations of § 1692e(11) occurring after Makreas received said letter
16
from Moore.
17
Additionally, the Third Cause of Action is based on a claim that Moore violated 15
18
U.S.C. § 1692c(c) and § 1692g(b), and, in turn, the Rosenthal Act, by “continu[ing] to
19
communicate with [Makreas]” and “continu[ing] collection efforts” after Makreas notified
20
Moore that he disputed the validity of the debt. (See FAC ¶ 81.)
21
Pursuant to § 1692c(c), “[i]f a consumer notifies a debt collector in writing that the
22
consumer refuses to pay a debt or that the consumer wishes the debt collector to cease
23
further communication with the consumer, the debt collector shall not communicate further
24
with the consumer.” See 15 U.S.C. § 1692c(c).6 Section 1692g(b) provides that if, within
25
thirty days of receiving from the debt collector the written notice required by § 1692g(a), a
26
27
28
6
The prohibition set forth in § 1692c(c) is subject to three exceptions, see id., none
of which, in light of the factual allegations made in the FAC, appears applicable to the
instant case.
7
1
consumer notifies the debt collector in writing that the debt is “disputed,” the debt collector
2
“shall cease collection of the debt” until the debt collector “obtains verification of the debt.”
3
See 15 U.S.C. § 1692g(b).
4
The Court previously dismissed such claim as alleged in the initial complaint, for the
5
reason Makreas failed to allege any facts to support his conclusory assertion that Moore
6
had taken any action regarding the debt on or after May 5, 2011, the date on which Moore
7
allegedly received from Makreas notification that Makreas contested the validity of the debt.
8
In the FAC, Makreas fails to cure the deficiency noted; Makreas, again, identifies no
9
communication or collection attempt by Moore, or contact of any kind by Moore, occurring
10
on or after May 5, 2011. (See FAC ¶¶ 32-34.)
11
Accordingly, to the extent the Third Cause of Action is based on a claim that Moore
12
failed to comply with § 1692c(c) and/or § 1692g(b), the Third Cause of Action is subject to
13
dismissal without leave to amend.
14
Finally, the Third Cause of Action is based on a claim that Moore, in July 2011,
15
made an “entry into [Makreas’s] credit report” (see FAC ¶ 90), specifically, knowingly
16
providing incorrect information about Makreas’ mailing address to “Experian and Equifax”
17
(see FAC ¶¶ 38, 90). Assuming, arguendo, such factual allegation implicates a provision of
18
the Rosenthal Act, any such claim is preempted by federal law. See 15 U.S.C.
19
§ 1681t(b)(1)(F) (providing states may not impose any “requirement or prohibition” with
20
respect to “subject matter regulated by . . . section 1681s-2”); 15 U.S.C. § 1681s-2(a)(1)(A)
21
(prohibiting any person from providing information to credit reporting agency “if the person
22
knows or has reason to know that the information is inaccurate”).7
23
24
Accordingly, to the extent the Third Cause of Action is based on a claim Moore
violated the Rosenthal Act by providing incorrect information to credit reporting agencies,
25
26
27
28
7
As noted, under federal law, no private cause of action is provided for a violation of
§ 1681s-2(a)(1)(A). The “chief law enforcement officer of a State,” or his or her designee,
may, however, bring an action alleging a violation of § 1681s-2(a)(1)(A) and may seek
injunctive relief and/or damages on behalf of the residents of the State. See 15 U.S.C.
§ 1681s(c)(1).
8
1
the Third Cause of Action is subject to dismissal without leave to amend.
2
4. Fourth Cause of Action
3
In the Fourth Cause of Action, Makreas alleges Moore violated § 17200 of the
4
California Business & Professions Code. As pleaded, the Fourth Cause of Action is
5
derivative of the First, Second, and Third Causes of Action. (See FAC ¶¶ 92-93.) As relief
6
for such violation(s), Makreas seeks “restitution.” (See FAC ¶¶ 93, 101-02.)
Moore argues Makreas has failed to allege any facts to support a finding that, even if
7
8
a violation of § 17200 could be established, Moore would be entitled to restitution.
9
Under California law, an order of restitution, for purposes of § 17200, is an order
10
“compelling a [§ 17200] defendant to return money obtained through an unfair business
11
practice to those persons in interest from whom the property was taken, that is, to persons
12
who had an ownership interest in the property.” See Korea Supply Co. v. Lockheed Martin
13
Corp., 29 Cal. 4th 1134, 1144-45 (2003) (internal quotation and citation omitted).
14
As discussed above, each of Makreas’s claims is subject to dismissal, with the
15
exception of his claim that certain of Moore’s voice messages did not contain the disclosure
16
required by § 1692e(11), specifically, that Moore was a debt collector. The FAC includes
17
no allegation to support a finding that, as a result of any failure by Moore to state it was a
18
debt collector, Makreas gave Moore money or other property.
Accordingly, the Fourth Cause of Action, as alleged against Moore, is subject to
19
20
dismissal.8
21
//
22
8
23
24
25
26
27
28
Although injunctive relief is, under some circumstances, available as a remedy for a
violation of § 17200, see id. at 1144, Makreas does not seek an injunction as relief for the
alleged failure by Moore to disclose in certain communications its identity as a debt
collector. Moreover, no such relief appears possible, as Makreas does not allege facts to
suggest there exists a “real or immediate threat” he will receive in the future
communications from Moore in which Moore does not identify itself as a debt collector.
See Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (holding, where plaintiff alleges past
violation by defendant, plaintiff not entitled to injunctive relief in absence of showing, inter
alia, of “real or immediate threat” plaintiff will again be subjected to same violation by
defendant). Indeed, as noted, Makreas alleges no facts to suggest he has received a
“communication” from Moore since the date on which Moore received his letter requesting
validation of the debt.
9
1
The Court will afford Makreas leave to amend to allege, if he can, facts, as opposed
2
to legal conclusions, to support his allegation that he is entitled to restitution as a remedy
3
for Moore’s alleged violations of § 1692e(11).
4
B. Citibank’s Motion to Dismiss
5
1. Second Cause of Action9
6
In the Second Cause of Action, Makreas alleges Citibank violated the FCRA by
7
accessing his credit report for improper purposes and by providing incorrect information to
8
a credit reporting agency.
9
Makreas alleges against Citibank the same FCRA violations as he alleges against
10
Moore. For the reasons stated above with respect to Moore, such claims against Citibank
11
likewise fail.
12
13
Accordingly, the Second Cause of Action is subject to dismissal without leave to
amend.
14
2. Third Cause of Action
15
In the Third Cause of Action, Makreas alleges Citibank violated the Rosenthal Act by
16
communicating with him and by attempting to collect the debt after he contested the validity
17
of the debt. According to Makreas, such acts violated § 1692c(c) and § 1692g(b) of the
18
FDCPA; as stated above, the Rosenthal Act prohibits, as a matter of state law, violations of
19
the FDCPA.
20
As noted, pursuant to § 1692c(c), “[i]f a consumer notifies a debt collector in writing
21
that the consumer refuses to pay a debt or that the consumer wishes the debt collector to
22
cease further communication with the consumer, the debt collector shall not communicate
23
further with the consumer,” see 15 U.S.C. § 1692c(c), and § 1692g(b) provides that if,
24
within thirty days of receiving from the debt collector the written notice required by
25
§ 1692g(a), a consumer notifies the debt collector in writing that the debt is “disputed,” the
26
debt collector “shall cease collection of the debt” until the debt collector “obtains verification
27
28
9
The First Cause of Action is not alleged as against Citibank.
10
1
of the debt,” see 15 U.S.C. § 1692g(b).
2
As Citibank correctly points out, Markeas fails to allege any facts to support his
3
conclusory assertions that Citibank violated § 1692c(c) and § 1692g(b). In particular,
4
Makreas pleads no facts to support his conclusory assertion that Citibank has ever sent a
5
“communication” to Makreas, see 15 U.S.C. § 1692a(2), i.e., that Citibank has conveyed to
6
Makreas “information regarding a debt directly or indirectly,” see 15 U.S.C. § 1692a(2), let
7
alone facts to support his conclusory assertion that Citibank “continued” to send
8
communications after Makreas advised Citibank he refused to pay a debt (see FAC ¶ 81a);
9
consequently, Makreas fails to state a claim that Citibank violated § 1692c(c). Further,
10
Makreas pleads no facts to support his conclusory assertion that Citibank engaged in
11
collection activities, let alone facts to support his conclusory assertion that Citibank
12
“continued” to engage in collection activities after Makreas allegedly disputed the debt (see
13
FAC ¶ 81b); consequently, Makreas fails to state a claim that Citibank violated
14
§ 1692g(b).10
Makreas also alleges Citibank violated the Rosenthal Act by making a knowingly
15
16
false entry in his credit report, specifically, by providing incorrect information about
17
Makreas’s mailing address to Experian and Equifax. (See FAC ¶¶ 38, 90). As discussed
18
above, even assuming such factual allegations implicate a provision of the Rosenthal Act,
19
any such claim under the Rosenthal Act is preempted by federal law.
Accordingly, the Third Cause of Action, as alleged against Citibank, is subject to
20
21
dismissal.
The Court will afford Makreas leave to amend to allege, if he can, any facts, as
22
23
opposed to legal conclusions, to support his allegation that Citibank violated the Rosenthal
24
//
25
26
27
28
10
As the Court noted in its order dismissing certain claims alleged in Makreas’s initial
complaint, to the extent Makreas intends to base a claim against Citibank on actions taken
by another entity, Makreas must allege sufficient facts, as opposed to legal conclusions, to
support a finding that the other entity acted on behalf of Citibank. No such facts are
alleged in the FAC.
11
1
Act by failing to comply with 15 U.S.C. § 1692c(c) and/or § 1692g(b).11
2
3. Fourth Cause of Action
3
In the Fourth Cause of Action, Makreas alleges Citibank violated § 17200 of the
4
California Business & Professions Code. As pleaded, the Fourth Cause of Action, as
5
alleged against Citibank, is derivative of the Second and Third Causes of Action. (See FAC
6
¶¶ 92-93.)
7
As discussed above, the Second and Third Causes of Action are subject to
8
dismissal, and, consequently, the Fourth Cause of Action, as alleged against Citibank,
9
likewise is subject to dismissal.
10
Further, as Citibank correctly argues, Makreas fails to allege any facts to support a
11
finding that, as a result of any alleged violation of § 17200, he paid Citibank any money or
12
property. Consequently, to the extent the Fourth Cause of Action includes a claim for
13
restitution, the Fourth Cause of Action is subject to dismissal for this additional reason.
14
15
The Court will afford Makreas leave to amend to allege, if he can, any facts, as
opposed legal conclusions, to support his claim against Citibank for restitution.
CONCLUSION
16
17
For the reasons stated above:
18
1. Moore’s motion to dismiss is hereby GRANTED in part and DENIED in part as
19
follows:
a. To the extent the motion seeks dismissal of the First Cause of Action, the
20
21
motion is (1) GRANTED as to the claim Moore violated § 1692g(a), and such claim is
22
DISMISSED without leave to amend; (2) GRANTED as to the claim Moore violated
23
§ 1692e(11) prior to the date on which Makreas received from Moore the letter stating
24
Makreas owed Moore a debt, and such claim is DISMISSED with leave to amend; and
25
(3) DENIED as to the claim Moore violated § 1692e(11) after Makreas received said letter
26
27
28
11
No such leave will be afforded to the extent the Third Cause of Action is based on
a claim that Citibank violated the Rosenthal Act by providing false information to credit
reporting agencies.
12
1
2
from Moore.
b. To the extent the motion seeks dismissal of the Second Cause of Action,
3
the motion is GRANTED, and the Second Cause of Action, as alleged against Moore, is
4
DISMISSED without leave to amend.
5
c. To the extent the motion seeks dismissal of the Third Cause of Action, the
6
motion is (1) GRANTED as to the claim Moore violated § 1692g(a), and such claim is
7
DISMISSED without leave to amend; (2) GRANTED as to the claim Moore violated
8
§ 1692e(11) prior to the date on which Makreas received from Moore the letter stating
9
Makreas owed Moore a debt, and such claim is DISMISSED with leave to amend;
10
(3) DENIED as to the claim Moore violated § 1692e(11) after Makreas received said letter
11
from Moore; (4) GRANTED as to the claim Moore failed to comply with § 1692c(c) and/or
12
§ 1692g(b), and such claim is DISMISSED without leave to amend; and (5) GRANTED as
13
to the claim Moore provided false information to credit reporting agencies, and such claim
14
is DISMISSED without leave to amend.
15
d. To the extent the motion seeks dismissal of the Fourth Cause of Action,
16
the motion is GRANTED, and the Fourth Cause of Action, as alleged against Moore, is
17
DISMISSED with leave to amend.
18
2. Citibank’s motion to dismiss is hereby GRANTED as follows:
19
a. To the extent the motion seeks dismissal of the Second Cause of Action,
20
the motion is GRANTED, and the Second Cause of Action, as alleged against Citibank, is
21
DISMISSED without leave to amend.
22
b. To the extent the motion seeks dismissal of the Third Cause of Action, the
23
motion is (1) GRANTED as to the claim Citibank violated the Rosenthal Act by failing to
24
comply with § 1692c(c) and § 1692g(b), and such claim is DISMISSED with leave to
25
amend; and (2) GRANTED as to the claim Citibank provided false information to credit
26
reporting agencies, and such claim is DISMISSED without leave to amend.
27
c. To the extent the motion seeks dismissal of the Fourth Cause of Action,
28
the motion is GRANTED, and the Fourth Cause of Action, as alleged against Citibank, is
13
1
2
DISMISSED with leave to amend.
3. If Makreas wishes to file a Second Amended Complaint to amend the First Cause
3
of Action and Third Causes of Action, as alleged against Moore and solely to correct the
4
deficiencies identified above, and/or to amend the Third and Fourth Causes of Action, as
5
alleged against Citibank and solely to correct the deficiencies identified above, Makreas
6
shall file a Second Amended Complaint no later than October 28, 2011.12 If Makreas does
7
not file a Second Amended Complaint on or before October 28, 2011, the instant action will
8
proceed on the remaining claim in the First Amended Complaint, specifically, the remaining
9
portion of his § 1692e(11) claim against Moore.
10
4. The Case Management Conference is hereby CONTINUED from October 28,
11
2011 to December 9, 2011, at 10:30 a.m. A Joint Case Management Statement shall be
12
filed no later than December 2, 2011.
13
IT IS SO ORDERED.
14
15
Dated: October 11, 2011
MAXINE M. CHESNEY
United States District Judge
16
17
18
19
20
21
22
23
24
25
26
27
12
28
Makreas may not otherwise amend the First Amended Complaint without first
obtaining leave of court. See Fed. R. Civ. P. 15(a)(2).
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?