Tuck v. Portfolio Recovery Associates, L.L.C. ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 ZACH TUCK, Case No.: 19-CV-1270-CAB-AHG 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS WITH PREJUDICE 14 PORTFOLIO RECOVERY ASSOCIATES, L.L.C. et al., [Doc. No. 70] 15 Defendants. 16 17 18 19 Before the Court is Defendant Portfolio Recovery Associates, LLC’s (“PRA”) 20 motion to dismiss Plaintiff’s first amended complaint (“FAC”). [Doc. No. 70.] The Court 21 deems the motion suitable for determination on the papers submitted and without oral 22 argument. See S.D. Cal. CivLR 7.1(d)(1). For the reasons set forth below, Plaintiff’s FAC 23 is dismissed with prejudice. 24 I. BACKGROUND 25 On July 10, 2019, Plaintiff Zach Tuck proceeding pro se, filed his initial complaint 26 against nineteen defendants alleging violations under the Telephone Consumer Protection 27 Act, 47 U.S.C. § 227, et seq. (“TCPA”); the Fair Debt Collection Practices Act, 15 U.S.C. 28 § 1692, et seq. (“FDCPA”); the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. 1 (“FCRA”); the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 2 1785, et seq. (“CCRAA”); and the California Rosenthal Fair Debt Collection Practices Act, 3 Cal. Civ. Code § 1788, et seq. (“Rosenthal Act” or “RFDCPA”). On October 16, 2019, 4 the Court dismissed Plaintiff’s complaint with leave to amend for failing to comply with 5 Rule 8 due to Plaintiff’s broad, conclusory allegations against all defendants generally and 6 under Rule 12(b)(6) for failing to sufficiently plead a claim under each of the statutes 7 identified above. [Doc. No. 61.] On October 21, 2019, Plaintiff filed his FAC. [Doc. No. 8 65.] The FAC is alleged against only Defendant Portfolio Recovery Associates, LLC. [Id.] 9 In addition to removing the remaining defendants from his initial complaint, Plaintiff also 10 removed his TCPA claims. [Id.] 11 As to specific allegations against PRA, the FAC alleges that in December 2017, 12 Plaintiff discovered delinquent accounts reported by PRA which he disputed. [Id. at ¶¶ 13 28–34.] 14 II. LEGAL STANDARD 15 Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to 16 state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the 17 sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is 18 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes 19 of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint 20 as true and construe[s] the pleadings in the light most favorable to the non-moving party.” 21 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 22 Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a 23 party make “a short and plain statement of the claim showing that the pleader is entitled to 24 relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the 25 elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 26 (quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted 27 inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 28 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) 1 (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a 2 cause of action, but must contain sufficient allegations of underlying facts to give fair 3 notice and to enable the opposing party to defend itself effectively.”). “Determining 4 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 5 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 6 556 U.S. at 679. 7 III. DISCUSSION 8 As an initial matter, Plaintiff’s failure to oppose PRA’s motion to dismiss constitutes 9 consent to granting the motion. The motion to dismiss was filed on November 4, 2019 and 10 set a hearing date (for briefing purposes only) of December 16, 2019.1 Civil Local Rule 11 7.1.e.2 requires a party opposing a motion to file an opposition or statement of 12 nonopposition no later than fourteen calendar days before the noticed hearing. Thus, based 13 on the hearing date of December 16, 2019, Plaintiff’s opposition to the motion to dismiss 14 was due on December 2, 2019. No opposition has been filed. Under the local rules, 15 Plaintiff’s failure to oppose “may constitute a consent to the granting of [the] motion.” See 16 S.D. Cal. CivLR 7.1.f.3.c. 17 District courts have broad discretion to enact and apply local rules, including 18 dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 46 F.3d 19 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under local rule 20 by deeming a pro se litigant’s failure to oppose as consent to granting the motion). Before 21 dismissing an action for failure to comply with local rules, the district court “weigh[s] 22 several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the 23 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 24 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 25 26 1 It appears Defendant PRA incorrectly set a hearing date seven days beyond the thirty-five-day 27 requirement under the Court’s Chambers Rules section II. A. The hearing date (for briefing purposes) should have been set for December 9, 2019, requiring Plaintiff to file his opposition by November 25, 28 1 sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 2 (9th Cir. 1986)). Plaintiff has previously filed several notices of settlements, joint motions 3 to dismiss, and oppositions to the previous motions to dismiss in this case. [Doc. Nos. 43, 4 44, 53.] Plaintiff also jointly filed motions to dismiss other defendants in this case after 5 the pending motion to dismiss was filed by PRA. [Doc. Nos. 72, 73.] 6 Accordingly, the Court assumes the lack of opposition to PRA’s motion to dismiss 7 is intentional and constitutes Plaintiff’s consent to the granting of the motion. Here, while 8 the Ghazali factors support granting the motion based on the lack of opposition alone, upon 9 review of the motion and Plaintiff’s FAC, the Court finds that Plaintiff failed to remedy 10 the deficiencies identified in the Court’s previous Order dismissing the complaint with 11 leave to amend and that no argument in opposition could possibly persuade the Court 12 otherwise. Plaintiff’s FAC, much like his initial complaint, alleges misconduct by 13 parroting statutory language under each of Plaintiff’s causes of action. 14 Plaintiff’s FCRA allegations are limited to 15 U.S.C. § 1681s-2(a). [Doc. No. 65 at 15 ¶ 41.] As the Court stated in its previous Order, there is no private right of action under 16 section 1681s-2(a); a violation of this section can be pursued only by federal or state 17 officials, and not by a private party. See 15 U.S.C. § 1681s-2(c)(1); Gorman v. Wolpoff & 18 Abramson, LLP, 584 F.3d 1147, 1162 (9th Cir. 2009). 19 Plaintiff’s CCRAA allegations are merely restatements of the statute and its specific 20 provisions under sections 1785.25(c), 1785.26(b), 1785.30, and alleged against all the 21 defendants generally. [Doc. No. 65 at ¶ 44.] Plaintiff’s CCRAA claims are preempted by 22 the FCRA. The FCRA provides that “[n]o requirement or prohibition may be imposed 23 under the laws of any State . . . relating to the responsibilities of persons who furnish 24 information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F). The Ninth 25 Circuit has held that section 1785.25(a) is the only substantive CCRAA furnisher provision 26 specifically saved by the FCRA. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 27 888–89 (9th Cir. 2010). 28 Lastly, Plaintiff also fails to cure the deficiencies in his FDCPA and RFDCPA 1 ||claims. In the Court’s previous Order, it stated that proving the existence of a “debt” is a 2 || “threshold” issue in every FDCPA action. Turner v. Cook, 362 F.3d 1219, 1226—27 (9th 3 ||Cir. 2004). Plaintiff again fails to plead any facts to support his allegations that the 4 || financial obligation in question was a “debt” under 15 U.S.C. § 1692a(5) or a “consumer 5 || credit transaction” under Section 1788.2(e) of the California Civil Code. 6 Accordingly, Defendant PRA’s motion to dismiss Plaintiffs FAC is GRANTED 7 || and Plaintiff's FAC is DISMISSED with prejudice based on the lack of opposition, on its 8 ||merits, and for failing to cure the deficiencies the Court outlined in its previous Order 9 || dismissing the initial complaint. 10 IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS Defendant PRA’s motions to 12 ||dismiss. Plaintiff's FAC is DISMISSED with prejudice and the Clerk of Court is 13 |/instructed to close this case. 14 It is SO ORDERED. 15 ||Dated: December 3, 2019 16 © 2 17 18 Hon. Cathy Ann Bencivengo United States District Judge 19 20 21 22 23 24 25 26 27 28