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