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Middleton v. Plus Four, Inc.

United States District Court, D. Nevada

March 7, 2014

ERVIN MIDDLETON, Plaintiff,
v.
PLUS FOUR, INC., Defendant.

ORDER

GEORGE FOLEY, Jr., Magistrate Judge.

This matter comes before the Court on Plaintiff Ervin Middleton's ("Plaintiff") Application to Proceed in Forma Pauperis (#1), filed on August 08, 2013. Plaintiff attached his Complaint (#1-1) to the Motion to Proceed in Forma Pauperis.

BACKGROUND

Plaintiff brings this action for damages and injunctive relief under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692, and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. 1681. As the Court understands Plaintiff's allegations, Defendant failed to validate two debts after receiving notice of their disputed status. Furthermore, Plaintiff alleges the Defendant failed to note the disputed status of the accounts with the credit reporting agencies and posted derogatory information on Plaintiff's credit report.

DISCUSSION

I. Application to Proceed In Forma Pauperis

Plaintiff filed this instant action and attached a financial affidavit to his Application and Complaint as required by 28 U.S.C. § 1915(a). Having reviewed Plaintiff's financial affidavit under section 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. Therefore, Plaintiff's request to proceed in forma pauperis in federal court is granted.

II. Screening the Complaint

Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint under section 1915(a). Federal courts are given the authority to dismiss a case if the action is legally "frivolous or malicious, " fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a complaint under section 1915(a), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. The Court applies the same standard under section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material facts stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( per curiam ). A properly pled complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 1949....

A. Plaintiff's Fair Debt Collection Practices Act Claims

To establish a claim under 15 U.S.C. § 1692 et seq., Plaintiff must prove that 1) plaintiff was a "consumer" as defined by 15 U.S.C § 1692a(3); 2) the "debt" arose out of a transaction that was "primarily for personal, family or household purposes" ( see 15 U.S.C. § 1692a(5)); 3) the defendant is a "debt collector" as defined by 15 U.S.C. § 1692a(6); and 4) the defendant violated § 1692's prohibitions.

Here, Plaintiff has pled that Defendant is a debt collector within the meaning of 15 U.S.C. § 1692a(6) and Plaintiff is a consumer within the meaning of 15 U.S.C. § 1692a(3). Plaintiff, however, failed to plead that the "debt" arose out of a transaction that was "primarily for personal, family or household purposes" pursuant to § 1692a(5). Therefore, Plaintiff's Complaint fails to state a claim under the FDCPA for which relief can be granted. The FDCPA's definitions of "consumers" and "debt" specifically restrict the coverage of the act to personal, family or household consumer transactions. Therefore, it is vital to a claim under the FDCPA that Plaintiff plead the debts were for personal, family, or household purposes rather than, for example, business purposes. Furthermore, though Plaintiff pled sufficient factual ...


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