Ellis v. Phillips and Cohen Associates, Ltd.

Filing 38

ORDER granting in part and denying in part 18 Motion to Dismiss. If Plaintiff chooses to file an amended complaint, she must do so on or before 8/3/2015. If Plaintiff does not file an amended complaint by 8/3/2015, Defendant shall file an Answe r to the remaining claims asserted in the FAC on or before 8/17/2015. The court reschedules the Case Management Conference for 10:00 a.m. on 10/1/2015. The parties shall file a Joint Case Management Conference Statement, or separate statements as appropriate under Civil Local Rule 16-9, on or before 9/24/2015. Signed by Judge Edward J. Davila on 7/17/2015. (ejdlc1S, COURT STAFF) (Filed on 7/17/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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TERRACE ELLIS,

Case No. 5:14-cv-05539-EJD

Plaintiff,
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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS

v.
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United States District Court
Northern District of California

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PHILLIPS AND COHEN ASSOCIATES,
LTD.,

Re: Dkt. No. 18

Defendant.

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In this action under federal and state laws regulating debt collection practices, Plaintiff

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Terrace Ellis (“Plaintiff”) alleges that Defendant Phillips and Cohen Associates, LTD.

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(“Defendant”) improperly attempted to collect on a delinquent account that may or may not have

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belonged to her. Presently before the court is Defendant’s Motion to Dismiss the First Amended

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Complaint (“FAC”). See Docket Item No. 18. Plaintiff opposes the motion. See Docket Item

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Nos. 24, 25.

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Federal jurisdiction arises under 28 U.S.C. § 1331. Having carefully reviewed the

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pleadings, the court finds that some but not all of Defendant’s arguments are meritorious.

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Accordingly, the Motion to Dismiss will be granted in part and denied in part for the reasons

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explained below.

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I.

BACKGROUND
Plaintiff alleges that on or about March 16, 2012, Citibank N.A. (“CitiBank”) “assigned”

Defendant to collect an “alleged debt” owed by Plaintiff. See First Am. Compl. (“FAC”), Docket
Item No. 7, at ¶ 12. Defendant sent letters to Plaintiff demanding payment in March, 2012, and in
August, September, and October, 2013, but did not send to Plaintiff “a 30-day notice informing
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Case No.: 5:14-cv-05539-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS

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her of her rights to have the alleged debt validated.” Id. at ¶¶ 13, 14, 25. Defendant also requested

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copies of Plaintiff’s credit report three times in 2012 and 2013. Id. at ¶ 26.
Defendant contacted Plaintiff’s cell phone repeatedly in an attempt to collect the “alleged

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debt” even though she never provided her cell phone number to Defendant or Citibank and did not

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give “prior express consent” to contact her on that number. Id. at ¶¶ 15, 21, 22. Plaintiff alleges

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that voicemails left by Defendant did not include language notifying her that the call was an

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attempt to collect a debt. Id. at ¶ 16. Plaintiff further alleges that Defendant failed to identify

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itself during several calls. Id. at ¶ 17. On December 6, 2013, Plaintiff called Joe Ponzo,

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Defendant’s employee, and requested in a voicemail that he stop calling her cell phone. Id. at ¶

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23.
Plaintiff contacted Citibank on February 5, 2014, and was informed she “has no account

United States District Court
Northern District of California

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with Citibank that was either sold or transferred to Defendant or any other debt collector.” Id. at ¶
24. She initiated this action on December 18, 2014, and filed the FAC on February 1, 2015. She
asserts claims against Defendant for (1) violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227(b)(1)(A); (2) violation of the Fair Debt Collections Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et. seq.; (3) violation of the Rosenthal Fair Debt Collections
Practices Act (“RFDCPA”), California Civil Code § 1788 et. seq., and (4) violation of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681b(f).

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II.

LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient

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specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted).
The factual allegations “must be enough to raise a right to relief above the speculative level” such
that the claim “is plausible on its face.” Id. at 556-57. A complaint which falls short of the Rule
8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v.
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Case No.: 5:14-cv-05539-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS

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Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
When deciding whether to grant a motion to dismiss, the court generally “may not consider

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any material beyond the pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d

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1542, 1555 n. 19 (9th Cir. 1990). However, the court may consider material submitted as part of

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the complaint or relied upon in the complaint, and may also consider material subject to judicial

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notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir. 2001).
In addition, the court must generally accept as true all “well-pleaded factual allegations.”

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Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The court must also construe the alleged facts in the

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light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988).

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United States District Court
Northern District of California

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However, “courts are not bound to accept as true a legal conclusion couched as a factual
allegation.” Id. Nor must the court credit allegations contradicted by “matters properly subject to
judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001).
III.

DISCUSSION
A.

Plaintiff’s Claims are not Barred by Judicial Estoppel

Defendant contends that Plaintiff must be estopped from asserting the instant claims
because she failed to disclose them in two personal bankruptcy petitions she filed in 2014. The
court disagrees.
“Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage
by asserting one position, and then later seeking an advantage by taking a clearly inconsistent

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position.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). Aside

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from preventing inconsistency, the Ninth Circuit applies this discretionary equitable doctrine out
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of “‘general considerations of the orderly administration of justice and regard for the dignity of
judicial proceedings,’ and to ‘protect against a litigant playing fast and loose with the courts.’” Id.
(quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)).
While “[c]ourts have observed that ‘the circumstances under which judicial estoppel may
appropriately be invoked are probably not reducible to any general formulation of principle,’”
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(New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Allen v. Zurich Ins. Co., 667 F.2d

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1162, 1166 (4th Cir. 1982)), three non-exhaustive factors are routinely considered: (1) whether the

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party’s later position is “clearly inconsistent with its earlier position;” (2) “whether the party has

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succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance

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of an inconsistent position in a later proceeding would create the perception that either the first or

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the second court was misled;” and (3) “whether the party seeking to assert an inconsistent position

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would derive an unfair advantage or impose an unfair detriment on the opposing party if not

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estopped.” Id. at 782-83 (citing New Hampshire, 532 U.S. at 750-51).
The Ninth Circuit generally limits judicial estoppel to situations “where the court relied on,

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Northern District of California

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or ‘accepted,’ the party’s previous inconsistent position.” Id. at 783. Thus, when a defendant
seeks to estop a plaintiff from asserting claims omitted from a bankruptcy petition, the defendant
must point to more than just the omission itself; instead, there has to be evidence, circumstantial or
otherwise, showing that the plaintiff’s non-disclosure was relied upon in some way during the
process, either by creditors or by the bankruptcy court adjudicating the estate. See id. at 784; see
also New Hampshire, 532 U.S. at 750-51 (“Absent success in a prior proceeding, a party’s later
inconsistent position introduces no ‘risk of inconsistent court determinations,’ and thus poses little
threat to judicial integrity.”); see also Ah Quin v. Cnty. of Kauai Dep’t of Transp., 733 F.3d 267,
271 (9th Cir. 2013) (“In the bankruptcy context, the federal courts have developed a basic default

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rule: If a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy
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schedules and obtains a discharge (or plan confirmation), judicial estoppel bars the action.”).

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Without proof of such reliance, it cannot be said that the plaintiff obtained an advantage from
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inconsistent positions.

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Here, documents subject to judicial notice show that Plaintiff filed two Chapter 7
bankruptcy petitions, one on April 7, 2014, and one on June 6, 2014. See Def.’s Req. for Judicial
Notice (“RJN”), Docket Item No. 19, at Exs. A, B. 1 They also reveal a fact upon which the

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The RJN is GRANTED IN PART and DENIED IN PART. It is granted as to Exhibits A through
D. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (The
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parties seem to agree: that Plaintiff did not disclose any claims against Defendant on either

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petition. However, the parties are also in accord on another relevant fact, which ultimately renders

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inappropriate the application of judicial estoppel to Plaintiff’s claims. Plaintiff and Defendant

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confirm that both bankruptcy petitions were dismissed before anything of note happened in those

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actions, such as the discharge of debts. Thus, regardless of what unstated purpose Plaintiff was

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trying to fulfill by filing and then dismissing the petitions ad seriatim, Defendant has not shown

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under these circumstances that either the bankruptcy court or Plaintiff’s creditors relied on her

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omission “to determine what action, if any, they would take in the matter.” Hamilton, 230 F.3d at

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785. The case relied upon by Defendant to escape this conclusion, Allers-Petrus v. Columbia

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United States District Court
Northern District of California

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Recovery Group, LLC, No. C08-5533 FDB, 2009 U.S. Dist. LEXIS 24265, 2009 WL 799676
(W.D. Wash. Mar. 24, 2009), is factually distinguishable.2
On this showing, the equitable doctrine of judicial estoppel does not preclude Plaintiff’s

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claims.
B.

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Defendant argues that Plaintiff cannot plead FDCPA or RFDCPA claims as a matter of law

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Defendant has not Proven the Debt was Commercial

because the debt underlying them was commercial rather than personal. This argument fails, at
least for the purposes of this motion.
“In order to state a claim under the FDCPA, a plaintiff must allege facts that establish the

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following: (1) plaintiff has been the object of collection activity arising from a consumer debt; (2)
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court “may take judicial notice of court filings and other matters of public record.”). It is denied
as to the remaining exhibits, which the court finds irrelevant to the issues raised in this motion.
See Wham-O, Inc. v. Manley Toys, Ltd., No. CV 08-07830 CBM SSX, 2009 U.S. Dist. LEXIS
127032, at *13, 2009 WL 6361387 (C.D. Cal. Aug. 13, 2009) (“[A]s with evidence generally, the
document to be judicially noticed must be relevant to the issues in the case.”).
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Unlike this case, the plaintiff in Allers-Petrus had a plan confirmed by the bankruptcy court
before she asserted omitted claims in district court. Allers-Petrus, 2009 U.S. Dist. LEXIS 24265,
at *2. Although the court found that the plaintiff’s failure to disclose was the “most compelling
reason to bar the prosecution of her claims” based on judicial estoppel, it is nonetheless undeniable
that the doctrine was better suited to those facts given the bankruptcy court’s reliance on the
plaintiff’s representations when confirming the plan. Id. at *8-9. Nothing similar is shown to
have occurred here.
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
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the defendant qualifies as a ‘debt collector’ under the FDCPA; and (3) the defendant has engaged

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in a prohibited act or has failed to perform a requirement imposed by the FDCPA.” Dang v.

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CitiMortgage, Inc., No. 5:11-cv-05036 EJD, 2012 U.S. Dist. LEXIS 30296, at *10, 2012 WL

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762329 (N.D. Cal. Mar. 7, 2012). A claim under the RFDCPA, which mimics the requirements of

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the FDCPA, has similar elements. See Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir.

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2012) (“The [RFDCPA] mimics or incorporates by reference the FDCPA’s requirements . . . and

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makes available the FDCPA’s remedies for violations.”); see also Long v. Nationwide Legal File

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& Serve, Inc., No. 12-CV-03578-LHK, 2013 U.S. Dist. LEXIS 132971, at *56-57, 2013 WL

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5219053 (N.D. Cal. Sept. 17, 2013) (“Like the FDCPA, the RFDCPA requires the Plaintiff to

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United States District Court
Northern District of California

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prove four elements: (1) the plaintiff is a “debtor,” (2) the debt at issue is a “consumer debt,” (3)
the defendant is a “debt collector,” and (4) that the defendant violated one of the liability
provisions of the RFDCPA.”).
A “consumer debt” qualifying for coverage under the FDCPA and the RFDCPA is one
incurred “primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5); Cal. Civ.
Code § 1788.2(e). To determine whether a debt falls under this definition, “courts may look to the
ostensible purpose for which the obligation was entered into, but it is the funds’ actual use that is
paramount.” Davis v. Hollins Law, 968 F. Supp. 2d 1072, 1077 (E.D. Cal. 2013).
Defendant has failed to prove - at least at this stage - that the subject of this lawsuit is a

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commercial debt rather than one for personal, family, or household purposes. Defendant first
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argues that “the calls at issue were made to, and received by, Lifeblossoms, Inc., a California
corporation, and each call related to a commercial - business to business - account,” and cites to an
account record from CitiBank and to voicemail transcripts. These documents are not properly
considered in the manner presented, however. Despite Defendant’s representation to the contrary,
it is not clear that the allegations in the FAC are based on the same account referenced in the
Citibank record. The identity of the subject account is apparently in dispute and will require
further factual development before the issue can be finally decided. It is therefore inappropriate to
consider the record as an incorporated supplement to the FAC. See United States ex rel. Lee v.
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Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011) (“[W]e may also consider unattached

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evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document;

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(2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of

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the document.”). And, in any event, the record reveals nothing about how any funds were used for

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the purposes of debt classification. Davis, 968 F. Supp. 2d at 1077.

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The voicemail transcripts are similarly insufficient. While the calls that resulted in these

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records are referenced in the FAC, their content does not prove the alleged collection activity was

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related to a commercial debt. If anything, the transcripts show that “Lifeblossoms and Team

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Synergy,” rather than Plaintiff, were referenced in the recorded voicemail message. They also

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United States District Court
Northern District of California

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notably show that Defendant’s representatives did not ask to speak with someone from
Lifeblossoms or mention the collection of a commercial debt; they requested that Plaintiff return
their calls. Lifeblossoms was never mentioned in the messages left for Plaintiff. In short, simply
identifying the recipient of a debt collection call does not prove anything about the nature of the
debt at issue.
As a secondary argument, Defendant contends that Plaintiff’s failure to disclose the instant
claims in her bankruptcy petitions constitutes a judicial admission that the debt is commercial and
not personal. See In re Rolland, 317 B.R. 402, 421 (Bankr. C.D. Cal. 2004) (“Statements in
bankruptcy schedules are executed under penalty of perjury and, when offered against a debtor,

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are eligible for treatment as judicial admissions.”). But in light of the subsequent dismissal of the

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bankruptcy proceedings, the court cannot find that the omission of the claims should constitute a
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judicial admission of their character. See Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373,
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376 (9th Cir. 1997) (“A trial judge has discretion whether to accept a judicial admission.”).
Because Defendant has not adequately shown that the underlying debt was incurred for
commercial purposes, the FDCPA and RFDCPA claims will not be dismissed on that ground.

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C.
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The TCPA Claim is Sufficiently Pled

Defendant believes the TCPA claim is insufficient and unsupportable. It is mistaken.
The pertinent section of the TCPA provides:
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS

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It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United
States -

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(A) to make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded
voice ...

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(iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio
common carrier service, or any service for which the called party is
charged for the call . . . .

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47 U.S.C. § 227(b)(1)(A)(iii).
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United States District Court
Northern District of California

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The term “automatic telephone dialing system” is defined as “equipment which has the
capacity (A) to store or produce telephone numbers to be called, using a random or sequential
number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).

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Plaintiff alleges in the FAC that “Defendant used an automatic telephone dialing system
(ATDS) to place the calls” it made to her. See FAC, at ¶ 19. Defendant argues this allegation is
conclusory. However, when coupled with the next allegation - that Defendant operates an ATDS
registered with the Texas Public Utility Commission under permit number 070108 - it is plausible

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that Defendant may have used that ATDS to place calls to Plaintiff.3 Whether or not an ATDS

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was, in fact, used to place the calls to Plaintiff, and whether or not that equipment functions like

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the type of equipment described in § 227(a)(1), are questions better suited to investigation through

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discovery and disposition on summary judgment. Plaintiff has alleged enough to prevent a

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dismissal for failure to state a claim.

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Defendant also argues, based on the CitiBank account record previously discussed, that

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Plaintiff provided her cell phone number and thereby consented to Defendant’s calls. See

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Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (observing the TCPA’s

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exemption for calls made with prior express consent). But as already explained, the CitiBank

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Plaintiff’s RJN (Docket Item Nos. 26, 28) is GRANTED as to exhibit showing Defendant’s
registration with the Texas Public Utility Commission but is DENIED in all other aspects.
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
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1

record cannot be considered as part of the FAC. Nor does it, on its own, prove that Plaintiff

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voluntarily provided her cell phone number to CitiBank or consented to calls on that number. Id.

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(defining “express consent” under the TCPA as “consent that is clearly and unmistakably stated.”).

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All it shows is that the number was in CitiBank’s system, but not why it was there.

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Since Defendant’s arguments are unpersuasive, the TCPA claim will not be dismissed.

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D.

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Defendant challenges Plaintiff’s FCRA claim as implausible in its current form. On this

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The FCRA Claim is Implausible without Additional Facts

issue, the court agrees with Defendant.

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Under the FCRA, any person who knowingly or negligently obtains a consumer’s credit

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report without a “permissible purpose” is subject to civil liability. 15 U.S.C. §§ 1681n; 1681o.

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Northern District of California

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Conduct that constitutes a “permissible purpose” is listed in 15 U.S.C. § 1681b. One such purpose
permits a debt collector to obtain a credit report if the debt collector “intends to use the
information in connection with . . . review or collection of an account of the consumer.” 15
U.S.C. § 1681b(a)(3)(A).
Here, Plaintiff has attributed to Defendant conduct which constitutes a “permissible
purpose.” She defines herself as a consumer and Defendant as a debt collector. See FAC, at ¶¶ 9,
10, 58. She also alleges that “Plaintiff allegedly owes a debt,” and that “Defendant was
purportedly ‘assigned’ to collect an alleged debt from Plaintiff.” Id. at ¶¶ 9, 12. Reconciling
Plaintiff’s unadorned FCRA allegations with these other statements from the FAC, it appears that
Defendant obtained Plaintiff’s credit report on three occasions in 2012 and 2013 in connection
with its efforts to collect a debt, alleged or otherwise. For this reason, Plaintiff’s FCRA claim fails

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as pled. See Makreas v. Moore Law Group, A.P.C., No. C-11-2406 MMC, 2011 U.S. Dist.
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LEXIS 80485, at *6, 2011 WL 3047634 (N.D. Cal. July 25, 2011) (“[P]laintiff’s conclusory
allegation that Moore lacked a ‘permissible purpose’ . . . is insufficient to state a claim . . .
particularly given plaintiff’s allegation that Moore is ‘engaged in the business of collecting debts
in this state in the ordinary course of business.”). It will be dismissed.

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E.

The Statute of Limitations is a Partial Bar

Claims under the FDCPA must be brought within “one year from the date on which the
violation occurs.” 15 U.S.C. § 1692k(d). So must claims under the RFDCPA. See Cal. Civ. Proc.
Code § 1788.30(f) (“Any action under this section may be brought in any appropriate court of
competent jurisdiction in an individual capacity only, within one year from the date of the
occurrence of the violation.”). Claims under the FCRA must be brought “not later than the earlier
of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such
liability; or (2) 5 years after the date on which the violation that is the basis for such liability
occurs.” 15 U.S.C. § 1681p.
As to the FDCPA and RFDCPA claims, Defendant argues that any violations alleged to
have occurred prior to December 18, 2013, are barred by the statute of limitations. Plaintiff

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United States District Court
Northern District of California

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appears to concede this point in her opposition since she argues only that three of alleged

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collection calls occurred within the limitations period and does not address calls that occurred

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before that date. That liability under the FDCPA and RFDCPA may arise from one violation is of

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no moment to the operation of the statute of limitations as a bar to untimely claims. Thus, all

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alleged violations of the FDCPA and the RFDCPA occurring prior to December 18, 2013, will be

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dismissed.

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As to the FCRA claim, Defendant argues the alleged “credit pulls” on January 5, 2012, and

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February 14, 2012, fall outside the § 1681p limitations period. In response, Plaintiff argues she

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did not discover that Defendant accessed her credit report until March 14, 2014, thereby placing

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all of the “credit pulls” within the limitations period. Plaintiff may be correct that pleading such

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an allegation would prevent a dismissal of the 2012 violations as untimely. The problem is,

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however, that this allegation is nowhere in the FAC. The 2012 violations appear time-barred as

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the FCRA claim is currently stated.

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F.

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For the reasons explained, Plaintiff’s claims are not precluded by judicial estoppel. In

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addition, Defendant has not proven that Plaintiff’s claims are based on commercial rather than

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Conclusion and Leave to Amend

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
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personal debt, or that the TCPA claim is insufficient.
However, the court finds the allegations inadequate to state a claim under the FCRA. As

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pled, the FAC describes a “permissible purpose” and does not disclose when Plaintiff discovered

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the statutory violations. In addition, the court finds that any violations of the FDCPA and the

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RFDCPA alleged to have occurred prior to December 18, 2013, are barred by the statute of

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limitations.

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The claim under the FCRA will be dismissed with leave to amend. See Schreiber Distrib.

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Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986) (holding that leave to amend

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should be freely allowed “unless the court determines that the allegation of other facts consistent

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Northern District of California

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with the challenged pleading could not possibly cure the deficiency.”). If Plaintiff chooses to
amend this claim, she must allege facts explaining when she discovered the “credit pulls” and why
Defendant was not engaged in a statutorily-prescribed “permissible purpose.” The alleged
FDCPA and RFDCPA violations that occurred outside the limitations period will be dismissed
without leave to amend, leaving at issue for these claims only conduct that occurred on or after
December 18, 2013. Since Plaintiff did not oppose this motion with respect to the earlier
violations, the court must presume she is unable to provide additional allegations on that subject.
IV.

ORDER
Based on the foregoing, Defendant’s Motion to Dismiss (Docket Item No. 18) is

GRANTED IN PART and DENIED PART. The motion is granted as to the FCRA claim, which
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is DISMISSED WITH LEAVE TO AMEND. The motion is also granted as to all violations of
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the FDCPA and RFDCPA alleged to have occurred prior to December 18, 2013, which are
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DISMISSED WITHOUT LEAVE TO AMEND. The motion is denied in all other aspects.
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If Plaintiff chooses to file an amended complaint, she must do so on or before August 3,
2015. Plaintiff is advised that, although leave to amend has been permitted, she may not add new
claims or new parties to this action without first obtaining Defendant’s consent or leave of court
pursuant to Federal Rule of Civil Procedure 15.
If Plaintiff does not file an amended complaint by August 3, 2015, the FCRA claim will be
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Case No.: 5:14-cv-05539-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS

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deemed dismissed from this action and Defendant shall file an Answer to the remaining claims

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asserted in the FAC on or before August 17, 2015.

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The court reschedules the Case Management Conference for 10:00 a.m. on October 1,

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2015. The parties shall file a Joint Case Management Conference Statement, or separate

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statements as appropriate under Civil Local Rule 16-9, on or before September 24, 2015.

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IT IS SO ORDERED.
Dated: July 17, 2015
______________________________________
EDWARD J. DAVILA
United States District Judge

United States District Court
Northern District of California

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Case No.: 5:14-cv-05539-EJD
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
DISMISS