De Amaral et al v. Goldsmith & Hull et al
ORDER by Judge Hamilton denying 20 Motion to Dismiss; denying 22 Motion to Strike (pjhlc2, COURT STAFF) (Filed on 12/5/2012)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MERVYN L. DE AMARAL, et al.,
No. C 12-3580 PJH
ORDER DENYING MOTION TO DISMISS
AND DENYING MOTION TO STRIKE
GOLDSMITH & HULL, et al.,
Defendants’ motion to dismiss and motion to strike came on for hearing before this
court on December 5, 2012. Plaintiffs Mervyn De Amaral and Jody Lin De Amaral
(“plaintiffs”) appeared through their counsel, Fred Schwinn. Defendants Goldsmith & Hull
and Eric Scott Mintz (“defendants”) appeared through their counsel, Jack Hull. Having read
the papers filed in conjunction with the motions and carefully considered the arguments and
relevant legal authority, and good cause appearing, the court hereby DENIES defendants’
motion to dismiss and DENIES defendants’ motion to strike for the reasons stated at the
hearing, and as follows.
Defendants’ motion to dismiss is largely premised on the argument that “the mere
filing of a lawsuit” cannot constitute a violation of the Fair Debt Collection Practices Act
(“FDCPA”) or its state-law equivalent. However, the Supreme Court rejected this argument
in a unanimous opinion, holding that “the Act applies to attorneys who ‘regularly’ engage in
consumer-debt-collection activity, even when that activity consists of litigation.” Heintz v.
Jenkins, 514 U.S. 291, 299 (1995). Plaintiffs’ complaint does adequately allege that a false
statement was made in connection with defendants’ filing of a state court suit, and is thus
sufficient for purposes of Rule 12(b)(6). Accordingly, defendants’ motion to dismiss is
Defendants’ motion to strike is based on a very similar argument - that their filing of
a lawsuit was a “constitutionally protected act in furtherance of a person’s right to petition
or free speech under the United States or California Constitution.” Dkt. 22 at 5. However,
because Heintz establishes that a plaintiff can properly assert a FDCPA claim based on the
filing of a lawsuit, plaintiffs’ complaint in this case is not the appropriate subject of a motion
to strike. Defendants’ motion to strike is thus DENIED.
Finally, both parties have filed requests for judicial notice. The court finds that the
state court complaint in LHR v. De Amaral is indeed implicated by plaintiffs’ complaint in
this case, and the request for judicial notice of that document is GRANTED. The remainder
of the parties’ requests for judicial notice are DENIED, as they relate to documents that are
not implicated by plaintiffs’ complaint.
IT IS SO ORDERED.
Dated: December 5, 2012
PHYLLIS J. HAMILTON
United States District Judge
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