Wittman et al v. CB1, Inc.

Filing 29

ORDER granting in part and denying in part 12 Motion REQUEST FOR JUDICIAL NOTICE; denying 16 Motion REQUEST FOR JUDICIAL NOTICE; granting 21 Motion for Hearing. The Court will hear oral argument on the motion to dismiss on Friday, March 25, 2016 at 9:00 a.m. Signed by Magistrate Judge Carolyn S Ostby on 2/18/2016. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WILLIAM WITTMAN and AMBER
BELLAMY, for themselves and all
others similarly situated,

CV 15-105-BLG-SPW-CSO
ORDER

Plaintiffs,
vs.
CB1, INC.,
Defendant.
Plaintiffs William Wittman and Amber Bellamy (“Plaintiffs”)
bring this putative class action against CB1, Inc. (“CB1”) alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692 et seq., and the Montana Consumer Protection Act
(“MCPA”), MCA §§ 30-14-101 et seq.
The following four motions are now pending:
(1)

CB1’s motion (ECF No. 16)1 to dismiss the Complaint for
failure to state a claim and to strike the class allegations;

(2)

CB1’s motion (ECF No. 12) for judicial notice;

“ECF No.” refers to the document as numbered in the Court’s
Electronic Case Files. See The Bluebook, A Uniform System of Citation,
§ 10.8.3. References to page numbers are to those assigned by ECF.
1

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(3)

Plaintiffs motion (ECF No. 16) for judicial notice; and

(4)

CB1’s unopposed motion (ECF No. 21) for a hearing on CB1’s
motion to dismiss the Complaint and strike the class
allegations.

This Order resolves the motions for judicial notice and the motion
for a hearing. The motion to dismiss will be addressed in subsequent
proceedings.
I.

BACKGROUND
Count I of the Complaint alleges that CB1 violated FDCPA

sections 1692f(1) and 1692e(2)(B) by: (1) making false representations
concerning compensation that may be lawfully received by a debt
collector; and (2) collecting an amount not expressly authorized by the
agreement creating the debt or permitted by law. ECF No. 1 at 6–8.
Count II of the Complaint alleges that CB1 violated the MCPA by
charging consumers a credit-card or debit-card fee that is not legally
permitted, that CB1 had contracted with consumers not to charge, and
that it had agreed with card issuers not to charge. ECF No. 1 at 8–9.
II.

PARTIES’ ARGUMENTS
CB1 argues the Court should take judicial notice of two exhibits:

(1) “true and correct copy of Billings Clinic’s Conditions of Registration

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Agreement . . . referenced in paragraphs 6 and 10 of the Complaint[;]”
and (2) a “true and correct copy of the re-populated payment requests
sent to Plaintiffs which is referenced in paragraphs 8 and 12 of the
Complaint.” ECF No. 12. CB1 argues the Court should take judicial
notice of these documents because “Plaintiffs generally reference and
rely upon” the documents in the Complaint, and their accuracy cannot
be disputed. ECF No. 12 at 4.
CB1 argues that the Court should consider the Conditions of
Registration Agreement (“CRA”) because the Plaintiffs’ FDCPA claim
hinges on whether they agreed to the transaction fee, and the CRA
provides that the signor agrees to pay all collection expenses or
attorney’s fees. ECF No. 18 at 3–4. It argues that the documents
should be judicially noticed and that the motion should not be treated
as a motion for summary judgment because the documents are all
incorporated by reference in the Complaint. Id. at 4–5.
In response, Plaintiffs do not object to the Court considering the
demand notices but do object to the Court considering the CRA. ECF
No. 15 at 3. Plaintiffs argue that the CRA is not referenced in the
Complaint and does not meet the requirements of Federal Rule of

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Evidence 201(b)(1) because it is subject to reasonable dispute and is not
generally known within the trial court’s territorial jurisdiction. Id.
Plaintiffs argue that the CRA is used for admission to the Billings
Clinic hospital and not for an office visit. Plaintiffs additionally provide
affidavits stating that they did not receive the CRA or sign such a
document. Id. at 4; ECF Nos. 15-1 and 15-2.
The Plaintiffs’ request for judicial notice involves four documents:
(1) a copy of a CB1 receipt reflecting payments on Plaintiff William
Wittman’s account, referenced in paragraphs 9 and 35 of the Complaint;
(2) a copy of a CB1 receipt reflecting payments on Plaintiff Amber
Bellamy’s account, referenced in paragraphs 13 and 35 of the
Complaint; (3) VISA Core Rules, referenced in paragraphs 18 and 19 of
the Complaint; and (4) MasterCard Merchant Agreement, referenced in
paragraphs 18 and 19 of the Complaint. ECF No. 16. Plaintiffs argue
that the four documents they provide are: (1) alleged in the Complaint;
(2) relevant to showing the fees were paid and that an agreement
existed to not collect such fees; and (3) authentic because CB1 did not
argue it was not bound by the contracts and in its own motion argued
that a lack of denial is an admission of authenticity. ECF No. 23.

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In response, CB1 argues that the Court should not take judicial
notice of the documents because they are not alleged in the Complaint
and their relevance has not been established. ECF No. 19 at 2. It
argues that “Plaintiffs do not refer to the Visa and MasterCard rules,
directly or indirectly, in the Complaint, and Plaintiffs do not allege that
any contracts exist between CB1 and either Visa or MasterCard.” Id.
III. LEGAL STANDARD
As a general rule, a district court may not consider any material
beyond the pleadings in ruling on a Federal Rule of Civil Procedure
12(b)(6) motion without converting the motion into one for summary
judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)
(citation omitted). As an exception to this rule, the court may consider
matters of public record or material properly submitted as part of the
complaint. Id. When a complaint necessarily relies on a document that
is not physically attached to the complaint, the Court may consider it
“if: (1) the complaint refers to the document; (2) the document is central
to the plaintiff’s claim; and (3) no party questions the authenticity of the
document.” U.S. v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir.
2011) (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); and

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Lee, 250 F.3d at 688). “But the mere mention of the existence of a
document is insufficient to incorporate the contents of a document.”
Coto Settle. v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (citing
U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).
The decision to accept and consider extrinsic materials offered in
connection to a motion to dismiss is discretionary. Davis v. HSBC Bank
Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012). Thus, if the
necessary prerequisites are met, the court may—but is not required
to—incorporate the documents by reference into the complaint for the
purposes of deciding a motion to dismiss. Id.
IV.

DISCUSSION
Turning first to the CRA, the Court notes that CB1 provided an

unsigned and undated copy of a CRA, which it asserts every patient at
Billings Clinic must sign. Plaintiffs, however, contest the authenticity
of this document by providing affidavits that state neither Plaintiff
signed such an agreement. A court cannot, “on the basis of evidence
outside of the Complaint, take judicial notice of facts favorable to
Defendants that could reasonably be disputed.” Corinthian Colleges,
655 F.3d at 999. Here, the CRA is not signed by either Plaintiff, and

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Plaintiffs specifically deny having signed such an agreement. Thus, the
Court declines to take judicial notice of the CRA.
Next, CB1 disputes the authenticity of the VISA Core Rules and
the MasterCard Merchant Agreement. While the Complaint “upon
information and belief” does generally reference agreements with card
issuers, the Court does not find those references to be sufficiently
detailed to take judicial notice of the specific agreements attached to
Plaintiff’s motion. Thus, the motion for judicial notice of these card
issuer agreements will be denied.
Finally, the payment requests and the payment receipts are
mentioned in the Complaint and appear to be central to Plaintiffs’
allegations. Because there is no objection to CB1’s request for judicial
notice of the payment requests, and because judicial notice appears to
be proper, the Court will grant CB1’s motion to this extent. But the
Court declines to take judicial notice of the payment receipts. Although
CB1 does not clearly take issue with the authenticity of these
documents, it does object to judicial notice of them. And the Complaint
does not refer to these specific documents. It would be inappropriate
under these circumstances for the Court to take judicial notice of them.

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V.

CONCLUSION
Accordingly, IT IS ORDERED that:
(1) CB1’s motion that the Court take judicial notice (ECF No. 12)
is DENIED with respect to Exhibit A (Billings Clinic’s
Conditions of Registration Agreement) and GRANTED with
respect to Exhibit B (true and correct copies of re-populated
payments requests sent to Plaintiffs); and
(2) Plaintiffs’ motion for judicial notice (ECF No. 16) is DENIED.
IT IS FURTHER ORDERED that CB1’s unopposed motion for a

hearing (ECF No. 21) on its Motion to Dismiss Complaint and Strike
Class Allegations is GRANTED. The Court will hear oral argument on
this motion to dismiss on Friday, March 25, 2016, at 9:00 A.M.
DATED this 18th day of February, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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