Lopez v. 4M Collections LLC, No. 2:2018cv00079 - Document 11 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S MOTION TO DISMISS with prejudice; ECF No. 5 Motion to Dismiss for Failure to State a Claim. FILE CLOSED. Signed by Judge Stanley A Bastian. (TR, Case Administrator)
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Lopez v. 4M Collections LLC Doc. 11 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 May 24, 2018 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 No. 2:18-CV-00079-SAB 9 HECTOR LOPEZ, 10 Plaintiff, 11 v. ORDER GRANTING 12 4M COLLECTIONS, LLC D/B/A DEFENDANT’S MOTION TO 13 DISCOVERY FINANCIAL SERVICES, a DISMISS 14 Washington limited liability company, 15 Defendant. 16 17 Before the Court is Defendant’s Motion to Dismiss Under Rule 12(b)(6), 18 ECF No. 5. Defendant requests the Court dismiss Plaintiff’s Complaint because it 19 fails to state an actionable claim under the Fair Debt Collection Practices Act’s 20 (“FDCPA”), 15 U.S.C. § 1962, et seq., prohibition against false or misleading 21 representations. Id. § 1692e. The Court held a hearing on May 18, 2018 in 22 Spokane, Washington. Kirk Miller appeared on behalf of Plaintiff, and Marc 23 Rosenberg appeared on behalf of Defendant. The Court took the motion under 24 advisement. After careful consideration of the parties’ briefings and presentation to 25 the Court, Defendant’s motion is granted. 26 BACKGROUND 27 On or about February 3, 2018, 4M Collections, LLC d/b/a/ Discovery 28 Financial Services (“Defendant”) served a Whitman County District Court ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ^ 1 Dockets.Justia.com 1 summons and complaint (the “Summons”) upon Plaintiff Hector Lopez. The 2 summons1 provided, in part: In order to defend against this lawsuit, you must respond to the complaint by stating your defense in writing, and serve a copy upon the court and the person signing this Summons, within twenty (20) days after the service of this Summons, excluding the day of service, or a Default Judgment may be entered against you without notice. A Default Judgment is one where plaintiff is entitled to what it asks for because you have not responded. If you serve a Notice of Appearance on the undersigned person, you are entitled to notice before a Default Judgment may be entered. 3 4 5 6 7 8 9 10 ECF No. 8, Ex. 1. The Summons was related to an alleged debt owed by Plaintiff; a debt Defendant was attempting to collect. On March 2, 2018, Plaintiff initiated this action against Defendant pursuant 11 12 13 14 15 16 17 18 19 20 21 to the FDCPA. ECF No. 1. Plaintiff alleges Defendant violated the FDCPA’s prohibition against false or misleading representations in connection with the collection of a debt. See 15 U.S.C. § 1692e. Specifically, Plaintiff claims the language in the Summons constitutes a “false, deceptive, or misleading representation” because is states Plaintiff is required to both serve a copy of his response upon Defendant and file the same upon the court, “or Default Judgment may be entered against [him] without notice.” ECF No. 8, Ex. 1. Plaintiff claims this statement is contrary to Washington law and the Washington Civil Rules for Courts of Limited Jurisdiction (“CRLJ”), which do not require a person serve his response to a lawsuit upon the court in order to avoid a no-notice default judgment. On March 21, 2018, Defendant filed the instant motion to dismiss pursuant 22 23 to Federal Rule of Civil Procedure 12(b)(6). ECF No. 5. 24 1 In ruling on Defendant’s motion, the Court takes judicial notice of the Summons as it provides the basis for the allegations in Plaintiff’s Complaint. See Parrino v. 26 FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other 27 grounds (holding that a district court ruling on a motion to dismiss “may consider a document the authenticity of which is not contested, and upon which the plaintiff’s 28 complaint necessarily relies.”) 25 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ^ 2 1 STANDARD 2 On a motion to dismiss, all well-pleaded allegations of material fact are 3 taken as true and construed in a light most favorable to the non-moving party. 4 Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 5 1998). Under Rule 12(b)(6), a complaint “should not be dismissed unless it appears 6 beyond doubt that [the] plaintiff can prove no set of facts in support of his claim 7 which would entitle him to relief.” Hydranautics v. FilmTec Corp., 70 F.3d 533, 8 535-36 (9th Cir. 1995). 9 Federal Rule of Civil Procedure 8(a)(2) requires that each claim in a 10 pleading be supported by “a short and plain statement of the claim showing that the 11 pleader is entitled to relief.” To satisfy this requirement, a complaint must contain 12 sufficient factual content “to state a claim to relief that is plausible on its face.” 13 Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 641 (9th Cir. 2014) (quoting 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief is 15 plausible on its face “when the plaintiff pleads factual content that allows the court 16 to draw the reasonable inference that the defendant is liable for the misconduct 17 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating whether a 18 complaint states a plausible claim for relief, courts rely on “judicial experience and 19 common sense” to determine whether the factual allegations, which are assumed to 20 be true, “plausibly give rise to an entitlement to relief.” Id. at 679. 21 22 DISCUSSION The FDCPA was created to protect consumers from unfair and deceptive 23 debt collection practices. 15 U.S.C. § 1692. The statute prohibits a debt collector 24 from using “any false, deceptive, or misleading representation or means in 25 connection with the collection of any debt.” 15 U.S.C. § 1692e. Despite this broad 26 language, however, not all false statements are actionable. To constitute a violation 27 of the FDCPA, the alleged false statement must also be “material.” Donohue v. 28 Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir. 2010). ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ^ 3 Plaintiff’s Complaint fails to state a plausible claim under the FDCPA 1 2 because the language in the Summons does not constitute a “false, deceptive, or 3 misleading representation.” 15 U.S.C. § 1692e. Plaintiff argues the following 4 language in the Summons is a false statement of Washington law and the 5 applicable court rules: “In order to defend against this lawsuit, you must respond to 6 the complaint by stating your defense in writing, and serve a copy upon the court 7 and the person signing this Summons, within twenty (20) days after the service of 8 this Summons, excluding the day of service, or a Default Judgment may be entered 9 against you without notice.” ECF No. 8, Ex. 1. Plaintiff argues this language 10 constitutes a false statement because it suggests that in order to avoid a no-notice 11 default judgment, a state-court defendant must both serve and file its response.2 The issue with Plaintiff’s argument is that it ignores the language that 12 13 immediately follows. “If you serve a Notice of Appearance on the undersigned 14 person, you are entitled to notice before a Default Judgment may be entered.” ECF 15 No. 8, Ex. 1 (emphasis added). Additionally, CRLJ 4(a)(2) specifically indicates 16 that the summons “shall require the defendant to serve and file a copy of his 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff accurately describes the rule governing when notice must be given before default judgment can be entered. CRLJ 55 allows a party to move for default judgment where “a party against whom a judgment for affirmative relief is sought has failed to appear, plead, or otherwise defend.” CRLJ 55(a)(1). “Any party who has appeared in the action for any purpose shall be served with a written notice of motion for default and the supporting affidavit at least 5 days before the hearing on the motion.” CRLJ 55(a)(3). “A defendant appears in an action when he or she answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his or her appearance. After appearance a defendant is entitled to notice of all subsequent proceedings.” Wash. Rev. Code § 4.28.210. A court may also find a party substantially complied with the appearance requirement by less formal conduct. See Morin v. Burris, 160 Wash.2d 745, 757 (2007) Once a party appears in an action, the trial court lacks authority to enter a default judgment without notice to that party. Hous. Auth. of Grant Cty. v. Newbigging, 105 Wash. App. 178, 190 (2001). ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ^ 4 1 defense within 20 days after the service of the summons …”. Thus, when read as a 2 whole, the summons accurately states the law and accurately informs the state3 court defendant that once it serves its response to the opposing party, it is entitled 4 to notice before default judgment may be entered. LEAVE TO AMEND 5 Ordinarily, leave to amend a complaint should be freely given following an 6 7 order of dismissal. See Fed. R. Civ. P. 15(a)(2). Generally, leave to amend is 8 denied only when it is clear that the deficiencies of the complaint cannot be cured 9 by amendment. Cook, Perkiss and Liehe, Inc. v. N. California Collection Serv. Inc., 10 911 F.2d 242, 247 (9th Cir. 1990). In this case, the Court finds that granting leave 11 to amend Plaintiff’s FDCPA claim would be futile. As indicated above, the 12 language in the Summons does constitute a “false, deceptive, or misleading 13 representation.” There are no additional facts that Plaintiff can allege to change the 14 Court’s analysis. 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 25 CONCLUSION When read in its entirety, the Whitman County District Court summons does 26 not contain a “false, deceptive, or misleading representation.” 15 U.S.C. § 1692e. 27 Accordingly, IT IS HEREBY ORDERED: 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ^ 5 1 1. Defendant’s Motion to Dismiss Under Rule 12(b)(6), ECF No. 5, is 2 GRANTED. Plaintiff’s Complaint is DISMISSED with prejudice. 3 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 4 this Order, to provide copies to counsel, and close this file. 5 DATED this 24th day of May 2018. 6 7 8 9 10 11 12 Stanley A. Bastian United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ^ 6
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