Middleton v. Cavalry Portfolio Services, LLC

Filing 74

ORDER that Defendant Cavalry Portfolio Services' Motion to DismissECF No. 48 is granted in part and denied in part; other pending motions ECF Nos. 46 , 59 in this case are denied as moot; action dismissed with prejudice; Clerk directed to enter judgment and close case. Signed by Judge Miranda M. Du on 1/9/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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Case No. 2:16-cv-01760-MMD-PAL

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ANN GATES MIDDLETON,
Plaintiff,

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ORDER

v.
CAVALRY PORTFOLIO SERVICES, LLC,
CITIBANK N.A. INC.,
Defendants.

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I.

SUMMARY

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Before the Court are three motions: Plaintiff’s Motion “Jurisdictional Challenge”

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(ECF No. 46); Defendant Cavalry Portfolio Services, LLC’s (“CPS”) Motion to Dismiss

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Plaintiff’s Second Amended Complaint and Request to Declare Plaintiffs Vexatious

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Litigants (“CPS’s Motion”) (ECF No. 48); and CPS’s Motion to Strike Plaintiff’s Affidavit in

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Support of Entering a Judgment Against Defendant Cavalry Portfolio Services, LLC (ECF

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No. 59).1
For the reasons discussed below, CPS’s Motion is granted in part and denied in

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part and the two pending motions are denied as moot.

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II.

BACKGROUND

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On June 29, 2016, Plaintiff Ann Gates Middleton filed a complaint against CPS and

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Citibank N.A., Inc. (“Citi”) in the Justice Court of Clark County, Nevada. (ECF No. 1-2.) On

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1Plaintiff

filed numerous notices and writs that do not warrant addressing. (See,
e.g., ECF No. 67, 68, 69.)

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July 25, 2016, CPS removed this action on the basis of federal question jurisdiction, 28

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U.S.C. § 1331.2 (ECF No. 1 at 2.) On August 3, 2016, Plaintiff filed her First Amended

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Complaint (“FAC”). (ECF No. 5.) On March 13, 2017, this Court granted CPS and Citi’s

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motions to dismiss the FAC, permitting Plaintiff to amend her Fair Debt Collection

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Practices Act claim (“FDCPA”) against CPS. (ECF No. 43 at 9.) In the previous order, the

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Court also dismissed with prejudice Plaintiff’s claims under the Telephone Consumer

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Privacy Act (“TCPA”) and Nevada Deceptive Trade Practices Act (“NDTPA”) as well as all

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claims against Citi. (Id.) The Court instructed Plaintiff that in order to state a claim for relief

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under the FDCPA, she needed “to allege details concerning the nature of the credit card

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debt,” specifically that the debt is one for personal, family, or household purposes. (Id. at

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6.)
In the SAC, Plaintiff restates the facts found in the FAC (see id. at 1-3 (this Court’s

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prior order in which it states the facts found in the FAC)), but adds the following facts:


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On November 21, 2016, “Plaintiffs”3 sent a letter attempting to verify the
debt;

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

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Because no reply was received, the “alleged debtor” agreed “to Plaintiffs’
claim that there was no debt”;

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

Erivin Middleton received a debt collection letter from CPS;

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

Ervin sent three demand letters, but no responses were received.

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(ECF No. 45 at ¶¶ 20-22.) Additionally, Plaintiff failed to remove her TCPA and NDTPA

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claims or to remove the claims against Citi from the SAC. (Id. at 7-12.)

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///

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2Thus,

it is Plaintiff’s FDCPA claim itself that gives this Court current jurisdiction
over her case, as the claim arises under federal law.
3Ervin Middleton is not a plaintiff to this action. To the extent Plaintiff Ann Middleton
wished to add Ervin as a plaintiff to this action, she was required to seek leave of court to
do so. See Local Rule 15-1(a); see also Fed. R. Civ. P 15(a)(2) (“In all other cases, a party
may amend its pleading only with the opposing party’s written consent or the court’s
leave.”) This Court’s prior order permitted her only to amend her FDCPA claim; it did not
allow Plaintiff to add additional plaintiffs.

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III.

LEGAL STANDARD

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Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon

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which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must

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provide “a short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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The Rule 8 notice pleading standard requires Plaintiff to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Id. (internal quotation marks

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and citation omitted). While Rule 8 does not require detailed factual allegations, it

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demands more than “labels and conclusions” or a “formulaic recitation of the elements of

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a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

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at 555). “Factual allegations must be enough to rise above the speculative level.”

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Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain

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sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556

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U.S. at 678 (internal quotation marks omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pleaded factual allegations in the complaint; however, legal conclusions are not

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entitled to the assumption of truth. Id. at 678. Mere recitals of the elements of a cause of

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action, supported only by conclusory statements, do not suffice. Id. Second, a district court

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must consider whether the factual allegations in the complaint allege a plausible claim for

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relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint alleges facts

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that allow a court to draw a reasonable inference that the defendant is liable for the alleged

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misconduct. Id. at 678. Where the complaint does not permit the court to infer more than

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the mere possibility of misconduct, the complaint has “alleged ― but it has not show[n] ―

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that the pleader is entitled to relief.” Id. at 679 (internal quotation marks omitted). When

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the claims in a complaint have not crossed the line from conceivable to plausible, the

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complaint must be dismissed. Twombly, 550 U.S. at 570. A complaint must contain either

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direct or inferential allegations concerning “all the material elements necessary to sustain
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recovery under some viable legal theory.” Id. at 562 (quoting Car Carriers, Inc. v. Ford

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Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)).

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Mindful of the fact that the Supreme Court has “instructed the federal courts to

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liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block, 832 F.2d

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1132, 1137 (9th Cir. 1987), the Court will view Plaintiff’s pleadings with the appropriate

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degree of leniency.

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IV.

CPS’S MOTION (ECF No. 48)

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CPS requests that this Court dismiss the SAC with prejudice and declare Plaintiff

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and Ervin Middleton “vexatious litigants” so that the two are required to obtain court

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permission before filing any future claims or suits against “Defendants.” (ECF No. 48 at 3-

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4.) The Court agrees that the SAC should be dismissed with prejudice 4 but declines to

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declare that Ann and Ervin Middleton are vexatious litigants.

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The Court instructed Plaintiff to allege that the account for which CPS allegedly

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contacted them was a “debt” within the meaning of the FDCPA. However, in the SAC,

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Plaintiff contend sthat “there is no debt” and that, as a result, “the question of whether the

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alleged debt was for ‘personal, household or family expenses’ cannot be answered.” (ECF

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No. 45 at ¶ 23.) This amendment fails to meet the FDCPA requirement that Plaintiffs at

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least plead that the account is a debt, i.e., that the charges on the account were incurred

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“primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). Because

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Plaintiff clearly denies the existence of a debt, she has failed to plead a basic element of

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an FDCPA claim.5 Therefore, this claim is dismissed with prejudice.6

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4The

Court dismissed the TCPA and NDTPA claims with prejudice in its prior order.
(ECF No. 43.) Therefore, it will address only whether amendment cured the issue with the
FDCPA claim.
5Plaintiff could have satisfied this simple requirement by stating that upon
information and belief, the account that CPS had contacted her about was a debt ensuing
from personal, family, and household expenditures.
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Court declines to grant CPS’s request that it declare Plaintiff and Ervin
Middleton to be “vexatious litigants” for two reasons. First, Ervin Middleton is not a proper
litigant in this action. Second, while this case does contain filings which as a matter of
federal civil procedure are frivolous, they are not abusive.
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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the parties’

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motions.

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It is therefore ordered that Defendant Cavalry Portfolio Services’ Motion to Dismiss

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(ECF No. 48) is granted in part and denied in part. It is granted with respect to the FDCPA

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claim; it is denied with respect to the request to declare Plaintiff and Ervin Middleton

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“vexatious litigants.” The other pending motions (ECF Nos. 46, 59) in this case are

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therefore denied as moot.
The Court dismisses this action with prejudice. The Clerk is instructed to enter
judgment accordingly and close this case.

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DATED THIS 9th day of January 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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