Stavrinides v. Pacific Gas and Electric Company

Filing 24

ORDER RE 8 MOTION TO DISMISS.(whalc2, COURT STAFF) (Filed on 4/21/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ELIAS STAVRINIDES,

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For the Northern District of California

United States District Court

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No. C 16-00433 WHA

Plaintiff,
v.

ORDER RE MOTION
TO DISMISS

PACIFIC GAS AND ELECTRIC
COMPANY,
Defendant.
/

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INTRODUCTION
In this TCPA and unfair debt collection action, defendant moves to dismiss for failure to
state a claim. To the extent stated herein, defendant’s motion is GRANTED.

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STATEMENT

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In July 2015, pro se plaintiff Elias Stavrinides filed a lawsuit in this district against

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defendant Pacific Gas & Electric Company, asserting claims for violations of the Telephone

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Consumer Protection Act, Fair Debt Collection Practices Act, and California’s Rosenthal Act

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(Case No. 15-cv-3118-WHA). PG&E promptly filed a motion to dismiss that complaint. After

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plaintiff failed to respond to the motion, an order to show cause issued, ordering plaintiff to

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show cause as to why he did not respond to the motion. Plaintiff did not respond to that order to

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show cause. A second order to show cause then issued, warning plaintiff that if he failed to

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respond, the case would be dismissed for failure to prosecute. Plaintiff again failed to file any

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response. Accordingly, an order dismissed plaintiff’s case for failure to prosecute and judgment

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was entered against him.

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In January of this year, three months after his previous case had been dismissed, plaintiff

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filed a new lawsuit asserting substantially the same claims that had been asserted in the

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previous case. The new complaint alleges that plaintiff has had a longstanding debt dispute

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with PG&E since 2013, and since then, plaintiff has received several automated calls from

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PG&E requesting payment of the debt. Plaintiff essentially alleges that PG&E has engaged in

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a years-long scheme to intentionally harass plaintiff. The only differences between the old

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complaint (Case No. 15-cv-3118-WHA) and the new complaint (Case No. 16-cv-433-WHA)
are that the new complaint adds a claim for intentional infliction of emotional distress and also

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For the Northern District of California

United States District Court

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alleges an additional automated call, from January 2016.

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Now, PG&E moves to dismiss based on res judicata and for failure to state a claim.
This order follows full briefing and oral argument.

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ANALYSIS

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To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009). “Res judicata is applicable whenever there is (1) an identity of claims,

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(2) a final judgment on the merits, and (3) privity between parties.” United States v.

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Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011) (internal

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quotation omitted). “[R]es judicata covers relevant claims that could have been raised in the

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prior case, but were not.” Hiser v. Franklin, 94 F.3d 1287, 1291–92 (9th Cir. 1996) (internal

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quotation omitted).

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Here, the bulk of plaintiff’s complaint is barred by res judicata. Rule 41(b) clearly states

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that unless the dismissal order states otherwise, a dismissal for failure to prosecute “operates as

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an adjudication on the merits.” See also Mir. v. Little Co. of Mary Hosp., 844 F.2d 646, 651

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(9th Cir. 1988). Plaintiff’s second complaint is substantially the same as the one previously

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dismissed for failure to prosecute, much of it appearing to be copied and pasted. There are only

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two substantive differences. First, the new complaint adds a claim for intentional infliction of
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emotional distress based on the alleged years-long scheme PG&E has been perpetrating on

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plaintiff. Plaintiff has shown no reason, however, why that claim could not have been brought

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when he filed his first suit in 2015, and it is based on the same nucleus of alleged facts.

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Second, in addition to the several automatic phone calls plaintiff alleges he received

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before filing the 2015 lawsuit, he has added one new alleged phone call from January 2016.

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While this phone call could obviously not have been alleged in the 2015 complaint, it alone is

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insufficient to serve as the factual basis to plausibly support plaintiff’s claims. If plaintiff

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intends to base his claims on more recent activity by PG&E, he must seek to amend his

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complaint to allege more detailed conduct that could not have been alleged in the 2015
complaint. The inclusion of one new allegation concerning a single phone call in 2016 is

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For the Northern District of California

United States District Court

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insufficient, on its own, to state a plausible claim for relief.

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Furthermore, even if the bulk of plaintiff’s complaint were not barred by res judicata, his

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claims are inadequately pled. As to the FDCPA and Rosenthal Act claims, plaintiff has not

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alleged that PG&E is a “debt collector” for the purposes of the statutes. Under both the FDCPA

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and the Rosenthal Act, a “debt collector” “regularly collects or attempts to collect, directly or

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indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. §1692a(6).

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“[D]ebt collector” does not include original creditors. Plaintiff has not alleged any facts

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suggesting that PG&E is a “debt collector” under the statute. Furthermore, plaintiff has not

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alleged that PG&E attempted to collect a “debt” for purposes of the statute. As our court of

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appeals has stated: “Because not all obligations to pay are considered debts under the FDCPA,

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a threshold issue in a suit brought under the Act is whether or not the dispute involves a ‘debt’

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within the meaning of the statute.” Turner v. Cook (9th Cir. 2004) 362 F.3d 1219, 1226-27.

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The FDCPA limits the definition of a “debt” to “any obligation or alleged obligation of a

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consumer to pay money arising out of a transaction in which the money, property, insurance, or

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services which are the subject of the transaction are primarily for personal, family, or household

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purposes.” 15 U.S.C. 1692a(5). The complaint lacks any allegations on this issue.

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As to the intentional infliction of emotional distress claim, plaintiff must plead facts
meeting the following elements: (1) outrageous conduct by the defendant with the intention to
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cause or reckless disregard of the probability of causing emotional distress; (2) severe

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emotional suffering; and (3) actual and proximate causation of the emotional distress. Cochran

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v. Cochran 64 Cal. App. 4th 488, 494 (1998). “[T]he tort does not extend to mere insults,

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indignities, threats, annoyances, petty oppressions or other trivialities.” Id. at 496. Plaintiff’s

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allegations, that he has received several phone calls, do not rise to the level of being

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“outrageous conduct” sufficient to state an intentional infliction of emotional distress claim.

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Finally, under the TCPA, a defendant is prohibited from making “any call (other than a

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call made for emergency purposes or made with the prior express consent of the called party)

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using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any
telephone number assigned to a . . . cellular telephone service . . . for which the called party is

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For the Northern District of California

United States District Court

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charged for the call.” 47 U.S.C. 227(b)(1)(A)(iii). As an initial matter, plaintiff has not alleged

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that he was charged for the call, which he must allege to state a claim under the TCPA.

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Moreover, the complaint does not, in anything other than conclusory fashion, allege that PG&E

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used an “automatic telephone dialing system” as defined by the statute. To state a proper claim,

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plaintiff must allege facts plausibly demonstrating that PG&E used “equipment which has the

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capacity (A) to store or produce telephone numbers to be called, using a random or sequential

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number generator; and (B) to dial such numbers.” 47 U.S.C. 227(a)(1).

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In his opposition, plaintiff states that “Defendants [sic] arguments is [sic] hogwash and

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laughable to children” (Opp. at 6). Unfortunately, defendant’s arguments are not laughable to

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adults. As to the res judicata argument, plaintiff puts forth his reasons for failing to respond to

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the orders to show cause in the 2015 case, asserts that he has continued to receive automated

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calls from defendant, and contends that the alleged harassment has continued since he filed the

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first lawsuit. Most of these assertions regarding defendant’s more recent conduct, however, are

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not in the complaint. As stated above, plaintiff cannot base his claims on the same nucleus of

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facts alleged in the 2015 complaint. If plaintiff seeks to amend his complaint, he should base

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his allegations on conduct that could not have been alleged in the prior case and should

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refashion his allegations to resolve the deficiencies identified herein, if possible.

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CONCLUSION
To the extent stated herein, defendant’s motion to dismiss is GRANTED. Plaintiff shall

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have until MAY 12, 2016 AT NOON, to file a motion, noticed on the normal 35-day track, for

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leave to amend his claims. A proposed amended complaint must be appended to this motion.

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Plaintiff must plead his best case. The motion should clearly explain how the amended

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complaint cures the deficiencies identified herein. If such a motion is not filed by the deadline,

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this case will be closed.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: April 21, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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