For Tim Toth, Plaintiff: George Haines, LEAD ATTORNEY, David H. Krieger, Haines and Krieger, LLC, Henderson, NV.
For Stephens and Michaels Associates, Inc., Defendant: Peter Dubowsky, Dubowsky Law Office, Chtd., Las Vegas, NV.
Gloria M. Navarro, Chief United States District Judge.
Pending before the Court is the Motion to Dismiss (ECF No. 21) filed by Defendant Stephens and Michaels Associates, Inc. (" SMA"), to which Plaintiff Tim Toth has filed a Response (ECF No. 23), and Defendant SMA has filed a Reply (ECF No. 25). On September 8, 2014, the Court held a hearing in which it granted the Motion in part. At that time, the Court dismissed Count II of the Amended Complaint without prejudice, but denied the Motion as to Plaintiff's other claims. The instant Order sets forth the basis of the Court's ruling.
This case centers upon allegations that Defendants made numerous phone calls to Plaintiff's cell phone in order to collect upon a debt. (Am. Compl., ECF No. 17). Specifically, Plaintiff alleges that Defendants called Plaintiff fifteen times between January 25, 2013, and February 26, 2013, despite Plaintiff's requests that Defendants stop calling his cell phone. (Id. at 3-4). In response to these requests, Defendants allegedly told Plaintiff that they had " the right to call anyone who refuses to pay their debts, " and threatened to transfer the debt to another collector who would continue to call Plaintiff's cell phone. (Id. at 4).
Based on these allegations, the Amended Complaint sets forth claims for: (1) Violations of the Fair Debt Collection Practices Act (" FDCPA"); (2) Invasion of Privacy under Nevada law; (3) Negligent Violations of the Telephone Consumer Protection Act (" TCPA"); and (4) Knowing and Willful Violations of the TCPA.
In the instant Motion, Defendant SMA argues that all of Plaintiff's claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed herein, the Court grants the Motion as to Count II, but denies it as to all the other Counts in the Amended Complaint.
II. LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.
" To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard " asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
" Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). " However, material which is properly submitted as part of the complaint may be considered." Id. Similarly, " documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. E.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of " matters of public record." Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed.R.Civ.P. 12(d).
If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should " freely" give leave to amend " when justice so requires, " and in the absence of a reason such as " undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing ...