Caruso v. Cavalry Portfolio SVCS ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERIC CARUSO, Case No.: 19-CV-1224-CAB-AHG 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS WITH PREJUDICE 14 CAVALRY PORTFOLIO SVCS et al., [Doc. No. 42] 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. 42.] Defendant 21 Hunt & Henriques filed a notice of joinder to PRA’s motion to dismiss. [Doc. No. 46.] 22 The Court deems the motion suitable for determination on the papers submitted and without 23 oral argument. See S.D. Cal. CivLR 7.1(d)(1). For the reasons set forth below, Plaintiff’s 24 FAC is dismissed with prejudice. 25 I. BACKGROUND 26 On July 1, 2019, Plaintiff Eric Caruso proceeding pro se, filed his initial complaint 27 against nine defendants alleging violations under the Telephone Consumer Protection Act, 28 47 U.S.C. § 227, et seq. (“TCPA”); the Fair Debt Collection Practices Act, 15 U.S.C. § 1 1692, et seq. (“FDCPA”); the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. 2 (“FCRA”); the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 3 1785, et seq. (“CCRAA”); and the California Rosenthal Fair Debt Collection Practices Act, 4 Cal. Civ. Code § 1788, et seq. (“Rosenthal Act” or “RFDCPA”). On September 30, 2019, 5 the Court dismissed Plaintiff’s complaint with leave to amend for failing to comply with 6 Rule 8 due to Plaintiff’s broad, conclusory allegations against all defendants generally and 7 under Rule 12(b)(6) for failing to sufficiently plead a claim under each of the statutes 8 identified above. [Doc. No. 39.] On October 8, 2019, Plaintiff filed his FAC. [Doc. No. 9 40.] The FAC is alleged against Defendant Portfolio Recovery Associates, LLC, and three 10 other defendants. [Id.] In addition to removing several defendants from his initial 11 complaint, Plaintiff also removed his TCPA claims. [Id.] 12 As to specific allegations against each defendant, the FAC alleges that in September 13 2018, Plaintiff discovered delinquent accounts reported by the defendants which he 14 disputed. [Id. at ¶¶ 33–40.] The FAC then proceeds to assert Plaintiff’s causes of action 15 against the four defendants without any further specific allegations to each of the 16 defendants. [Id. at ¶¶ 46–62.] 17 II. LEGAL STANDARD 18 Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to 19 state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the 20 sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is 21 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes 22 of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint 23 as true and construe[s] the pleadings in the light most favorable to the non-moving party.” 24 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 25 Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a 26 party make “a short and plain statement of the claim showing that the pleader is entitled to 27 relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the 28 elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 1 (quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted 2 inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 3 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) 4 (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a 5 cause of action, but must contain sufficient allegations of underlying facts to give fair 6 notice and to enable the opposing party to defend itself effectively.”). “Determining 7 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 8 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 9 556 U.S. at 679. 10 III. DISCUSSION 11 As an initial matter, Plaintiff’s failure to oppose PRA’s motion to dismiss constitutes 12 consent to granting the motion. The motion to dismiss was filed on October 22, 2019 and 13 set a hearing date (for briefing purposes only) of November 26, 2019. Civil Local Rule 14 7.1.e.2 requires a party opposing a motion to file an opposition or statement of 15 nonopposition no later than fourteen calendar days before the noticed hearing. Thus, based 16 on the hearing date of November 26, 2019, Plaintiff’s opposition to the motion to dismiss 17 was due on November 12, 2019. No opposition has been filed. Under the local rules, 18 Plaintiff’s failure to oppose “may constitute a consent to the granting of [the] motion.” See 19 S.D. Cal. CivLR 7.1.f.3.c. 20 District courts have broad discretion to enact and apply local rules, including 21 dismissal of a case for failure to comply with the local rules. Ghazali v. Moran, 46 F.3d 22 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under local rule 23 by deeming a pro se litigant’s failure to oppose as consent to granting the motion). Before 24 dismissing an action for failure to comply with local rules, the district court “weigh[s] 25 several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the 26 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 27 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 28 sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 1 (9th Cir. 1986)). Plaintiff has previously filed several notices of settlements, joint motions 2 to dismiss, and oppositions to the previous motions to dismiss in this case. [Doc. Nos. 15, 3 38.] Plaintiff also jointly filed a motion to dismiss another party in this case after the 4 pending motion to dismiss was filed by PRA. [Doc. No. 44.] 5 Accordingly, the Court assumes the lack of opposition to PRA’s motion to dismiss 6 is intentional and constitutes Plaintiff’s consent to the granting of the motion. Here, while 7 the Ghazali factors support granting the motion based on the lack of opposition alone, upon 8 review of the motion and Plaintiff’s FAC, the Court finds that Plaintiff failed to remedy 9 the deficiencies identified in the Court’s previous Order dismissing the complaint with 10 leave to amend and that no argument in opposition could possibly persuade the Court 11 otherwise. 12 Plaintiff again alleges broad, conclusory allegations against the defendants. The 13 only specific factual allegations attributed to each defendant that Plaintiff amended were 14 the alleged delinquent accounts the defendants reported. Beyond that, Plaintiff’s FAC, 15 much like his initial complaint, groups the remaining defendants together and broadly 16 alleges misconduct by parroting statutory language under each of Plaintiff’s causes of 17 action. 18 Plaintiff’s FCRA allegations are limited to 15 U.S.C. § 1681s-2(a). [Doc. No. 40 at 19 ¶ 47.] As the Court stated in its previous Order, there is no private right of action under 20 section 1681s-2(a); a violation of this section can be pursued only by federal or state 21 officials, and not by a private party. See 15 U.S.C. § 1681s-2(c)(1); Gorman v. Wolpoff & 22 Abramson, LLP, 584 F.3d 1147, 1162 (9th Cir. 2009). 23 Plaintiff’s CCRAA allegations are merely restatements of the statute and its specific 24 provisions under sections 1785.25(c), 1785.26(b), 1785.30, and alleged against all the 25 defendants generally. [Doc. No. 40 at ¶ 49.] While Plaintiff has alleged the specific 26 accounts and some information on these accounts, there are no facts specific to each of the 27 defendant’s alleged wrongdoing. Furthermore, Plaintiff’s CCRAA claims are preempted 28 by the FCRA. The FCRA provides that “[n]o requirement or prohibition may be imposed 1 |/under the laws of any State . . . relating to the responsibilities of persons who furnish 2 ||information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F). The Ninth 3 || Circuit has held that section 1785.25(a) is the only substantive CCRAA furnisher provision 4 ||specifically saved by the FCRA. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 5 || 888-89 (9th Cir. 2010). 6 Lastly, Plaintiff also fails to cure the deficiencies in his FDCPA and RFDCPA 7 |{claims. In the Court’s previous Order, it stated that proving the existence of a “debt” is a 8 “threshold” issue in every FDCPA action. Turner v. Cook, 362 F.3d 1219, 1226-27 (9th 9 2004). Plaintiff again fails to plead any facts to support his allegations that the 10 || financial obligation in question was a “debt” under 15 U.S.C. § 1692a(5) or a “consumer 11 || credit transaction” under Section 1788.2(e) of the California Civil Code. 12 Accordingly, Defendant PRA’s motion to dismiss Plaintiff's FAC is GRANTED 13 || and Plaintiff's FAC is DISMISSED with prejudice based on the lack of opposition, on its 14 merits, and for failing to cure the deficiencies the Court outlined in its previous Order 15 || dismissing the initial complaint. 16 IV. CONCLUSION 17 For the foregoing reasons, the Court GRANTS Defendant PRA’s motions to 18 |/dismiss. Plaintiffs FAC is DISMISSED with prejudice and the Clerk of Court is 19 instructed to close this case. 20 It is SO ORDERED. 21 || Dated: December 3, 2019 22 23 54 Hon. Cathy Ann Bencivengo United States District Judge 25 26 27 28