De Amaral et al v. Goldsmith & Hull et al

Filing 37

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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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 MERVYN L. DE AMARAL, et al., 6 Plaintiff(s), No. C 12-3580 PJH 7 v. ORDER DENYING MOTION TO DISMISS AND DENYING MOTION TO STRIKE 8 GOLDSMITH & HULL, et al., 9 10 11 Defendant(s). ___________________________________/ Defendants’ motion to dismiss and motion to strike came on for hearing before this 12 court on December 5, 2012. Plaintiffs Mervyn De Amaral and Jody Lin De Amaral 13 (“plaintiffs”) appeared through their counsel, Fred Schwinn. Defendants Goldsmith & Hull 14 and Eric Scott Mintz (“defendants”) appeared through their counsel, Jack Hull. Having read 15 the papers filed in conjunction with the motions and carefully considered the arguments and 16 relevant legal authority, and good cause appearing, the court hereby DENIES defendants’ 17 motion to dismiss and DENIES defendants’ motion to strike for the reasons stated at the 18 hearing, and as follows. 19 Defendants’ motion to dismiss is largely premised on the argument that “the mere 20 filing of a lawsuit” cannot constitute a violation of the Fair Debt Collection Practices Act 21 (“FDCPA”) or its state-law equivalent. However, the Supreme Court rejected this argument 22 in a unanimous opinion, holding that “the Act applies to attorneys who ‘regularly’ engage in 23 consumer-debt-collection activity, even when that activity consists of litigation.” Heintz v. 24 Jenkins, 514 U.S. 291, 299 (1995). Plaintiffs’ complaint does adequately allege that a false 25 statement was made in connection with defendants’ filing of a state court suit, and is thus 26 sufficient for purposes of Rule 12(b)(6). Accordingly, defendants’ motion to dismiss is 27 DENIED. 28 Defendants’ motion to strike is based on a very similar argument - that their filing of 1 1 a lawsuit was a “constitutionally protected act[] in furtherance of a person’s right to petition 2 or free speech under the United States or California Constitution.” Dkt. 22 at 5. However, 3 because Heintz establishes that a plaintiff can properly assert a FDCPA claim based on the 4 filing of a lawsuit, plaintiffs’ complaint in this case is not the appropriate subject of a motion 5 to strike. Defendants’ motion to strike is thus DENIED. 6 Finally, both parties have filed requests for judicial notice. The court finds that the 7 state court complaint in LHR v. De Amaral is indeed implicated by plaintiffs’ complaint in 8 this case, and the request for judicial notice of that document is GRANTED. The remainder 9 of the parties’ requests for judicial notice are DENIED, as they relate to documents that are 10 not implicated by plaintiffs’ complaint. 11 12 IT IS SO ORDERED. 13 14 Dated: December 5, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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