Bennett v. Kinney et al

Filing 24

ORDER GRANTING, IN PART, MOTION TO DISMISS AND CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 10/2/2015. Initial Case Management Conference set for 10/9/2015 11:00 AM in Courtroom 5, 2nd Floor, Oakland. Signed by Judge Jeffrey S. White on 8/5/15. (jjoS, COURT STAFF) (Filed on 8/5/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PETER BENNETT,

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Case No. 15-cv-02200-JSW

Plaintiff,
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v.
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ANSEL D KINNEY, et al.,

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United States District Court
Northern District of California

Defendants.
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ORDER GRANTING, IN PART,
MOTION TO DISMISS AND
CONTINUING CASE MANAGEMENT
CONFERENCE
RE: DOCKET. NO. 13

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Now before the Court for consideration is the motion to dismiss filed by Ansel D. Kinney

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and the Law Offices of Ansel D. Kinney (collectively “Kinney”). The Court has considered the

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parties’ papers, relevant legal authority, and the record in this case, and it finds the motion suitable

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for disposition without oral argument.1 See N.D. Civ. L.R. 7-1(b).
The Court CONTINUES the case management conference scheduled for August 21, 2015

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to October 9, 2015. The Court VACATES the motion hearing scheduled for August 28, 2015, and

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GRANTS, IN PART, AND DENIES, IN PART, WITHOUT PREJUDICE, Kinney’s motion.
BACKGROUND

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On May 15, 2015, Plaintiff, Peter Bennett (“Bennett”) filed his original complaint against

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Kinney, Insterstate Deposition Subpoena Service, Inc., Attorney Service of San Francisco, and

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Tony Klein. (Docket No. 1.) On June 18, 2015, Bennett filed an Amended Complaint against

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these Defendants and added CynthiaVoss (“Voss”), his ex-girlfriend, as a Defendant. (Amended

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Kinney has not filed a reply brief. Accordingly, the motion is now ripe for consideration.

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Complaint (“AC”) ¶¶ 2-6.)2

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Bennett asserts a claim against Kinney for violations of the Fair Debt Collection Practices

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Act (“FDCPA”), and he asserts state law claims against Kinney for aiding and abetting breach of

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fiduciary duty, third-party legal malpractice, and abuse of process. All of these claims arise out of

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Kinney’s efforts to collect on a judgment that Voss obtained against Bennett. (See AC ¶¶ 14-52.)

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ANALYSIS

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A.

A motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim

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Applicable Legal Standard.

upon which relief can be granted. On a motion to dismiss under Rule 12(b)(6), the Court
construes the allegations in the complaint in the light most favorable to the non-moving party and

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United States District Court
Northern District of California

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takes as true all material allegations in the complaint. Sanders v. Kennedy, 794 F.2d 478, 481 (9th

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Cir. 1986). Even under the liberal pleading standard of Rule 8(a)(2), “a plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Rather,

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a plaintiff must instead allege “enough facts to state a claim to relief that is plausible on its face.”

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Id. at 570. “The plausibility standard is not akin to a probability requirement, but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.... When a complaint pleads facts

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that are merely consistent with a defendant’s liability, it stops short of the line between possibility

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and plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Twombly, 550 U.S. at 557) (internal quotation marks omitted).

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B.

The Court Dismisses the FDCPA Claim, With Leave to Amend.

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In his fifth claim for relief, Bennett alleges that Kinney violated the FDCPA by filing “a

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false proof of service with respect to an order of examination of debtor, and did not correct after

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being repeatedly informed that it was false.” (AC ¶ 83.) Kinney moves to dismiss on the basis

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that Bennett fails to allege sufficient facts to show that Kinney is a “debt collector” for purposes of

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Interstate Deposition Subpoena Service, Inc., Attorney Service of San Francisco, Tony
Klein and Cynthia Voss have not yet appeared.
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the FDCPA.

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The term ‘debt collector’ means any person who uses any
instrumentality of interstate commerce or the mails in any business
the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another. . . .

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15 U.S.C. § 1692a(6) (emphasis added). Bennett fails to include sufficient facts from which the

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Court could reasonably infer that the “principal purpose” of Kinney’s business is the collection or

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debts or that Kinney “regularly” collects or attempts to collect debts. Accordingly, Bennett fails to

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allege sufficient facts to show that Kinney is a debt collector as that term is defined in the FDCPA.

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Accordingly, the Court GRANTS, in part, Kinney’s motion to dismiss on that basis.
Because the Court cannot say it would be futile, the Court GRANTS Bennett leave to amend this

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United States District Court
Northern District of California

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claim, if he can in good faith and in compliance with his obligations under Federal Rule of Civil

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Procedre 11, allege facts that show Kinney is a “debt collector.”

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C.

The Court Denies the Motion to Dismiss the State Law Claims, Without Prejudice.

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The Court has dismissed the FDCPA claim with leave to amend. For the following

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reasons, the Court denies the motion to dismiss the state law claims, without prejudice to renewing

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the arguments therein, if Bennett files a second amended complaint.

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Bennett argues that diversity jurisdiction exists. However, Bennett alleges that he is “an

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individual residing in London, United Kingdom.” (AC ¶ 1.) “In order to be a citizen of a State

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within the meaning of the diversity statute, a natural person must be both a citizen of the United

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States and domiciled within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,

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828 (1989) (emphasis in original). Bennett has not alleged that he is either a citizen of a particular

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state or domiciled within that state. Therefore, the Court cannot determine whether diversity

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jurisdiction exists. See Turan Petroleum, Inc. v. Lentin, 482 F. Supp. 2d 1170, 1171 (C.D. Cal.

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2007) (“[I]t has been held consistently that a diversity suit may not be maintained under 28 U.S.C.

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§ 1332(a)(1) by or against a United States citizen who is domiciled in a foreign country, for a

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resident of a foreign country is not necessarily a citizen thereof.”) (quoting inter alia, Coury v.

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Prot, 85 F.3d 244, 249-50 (5th Cir. 1996)).

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The Court could, in its discretion, exercise supplemental jurisdiction over the state law
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s
cla
aims, if the FDCPA claim survives. Because it is not clear th Bennett w be able to state a
F
m
hat
will

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fed
deral claim, the Court shall reserve ru
t
uling on whe
ether it will exercise sup
pplemental ju
urisdiction

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ove the state law claims.
er
CONCLU
USION

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For the forgoing rea
asons, the Court GRANT in part, a DENIES WITHOUT
TS,
and
S

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PR
REJUDICE, in part, Kinn
i
ney’s motion to dismiss. Bennett sha file a Sec
n
all
cond Amend
ded

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Complaint by no later than August 28, 2015, and D
n
n
Defendants s
shall answer or otherwise respond
e

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wit
thin twenty-o (21) day of service of the Seco nd Amended Complaint If Bennett continues
one
ys
d
t.
t

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to assert that th Court has diversity jur
a
he
risdiction, h must inclu specific f
he
ude
facts regardi his
ing

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United States District Court
Northern District of California

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citi
izenship and domicile.
d
IT IS SO ORDER
S
RED.
Da
ated: August 5, 2015

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__
___________
__________
____
JE
EFFREY S. W
WHITE
Un
nited States D
District Judg
ge

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