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Middleton v. Cavalry Portfolio Services, LLC

United States District Court, D. Nevada

January 9, 2017

ANN GATES MIDDLETON, Plaintiff,
v.
CAVALRY PORTFOLIO SERVICES, LLC, CITIBANK N.A. INC., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court are three motions: Plaintiff's Motion “Jurisdictional Challenge” (ECF No. 46); Defendant Cavalry Portfolio Services, LLC's (“CPS”) Motion to Dismiss Plaintiff's Second Amended Complaint and Request to Declare Plaintiffs Vexatious Litigants (“CPS's Motion”) (ECF No. 48); and CPS's Motion to Strike Plaintiff's Affidavit in Support of Entering a Judgment Against Defendant Cavalry Portfolio Services, LLC (ECF No. 59).[1]

         For the reasons discussed below, CPS's Motion is granted in part and denied in part and the two pending motions are denied as moot.

         II. BACKGROUND

         On June 29, 2016, Plaintiff Ann Gates Middleton filed a complaint against CPS and Citibank N.A., Inc. (“Citi”) in the Justice Court of Clark County, Nevada. (ECF No. 1-2.) On July 25, 2016, CPS removed this action on the basis of federal question jurisdiction, 28 U.S.C. § 1331.[2] (ECF No. 1 at 2.) On August 3, 2016, Plaintiff filed her First Amended Complaint (“FAC”). (ECF No. 5.) On March 13, 2017, this Court granted CPS and Citi's motions to dismiss the FAC, permitting Plaintiff to amend her Fair Debt Collection Practices Act claim (“FDCPA”) against CPS. (ECF No. 43 at 9.) In the previous order, the Court also dismissed with prejudice Plaintiffs claims under the Telephone Consumer Privacy Act (“TCPA”) and Nevada Deceptive Trade Practices Act (“NDTPA”) as well as all claims against Citi. (Id.) The Court instructed Plaintiff that in order to state a claim for relief under the FDCPA, she needed “to allege details concerning the nature of the credit card debt, ” specifically that the debt is one for personal, family, or household purposes. (Id. at

         6.)

         In the SAC, Plaintiff restates the facts found in the FAC (see Id. at 1-3 (this Court's prior order in which it states the facts found in the FAC)), but adds the following facts:

• On November 21, 2016, “Plaintiffs”[3] sent a letter attempting to verify the debt;
• Because no reply was received, the “alleged debtor” agreed “to Plaintiffs' claim that there was no debt”;
• Erivin Middleton received a debt collection letter from CPS;
• Ervin sent three demand letters, but no responses were received.

(ECF No. 45 at ¶¶ 20-22.) Additionally, Plaintiff failed to remove her TCPA and NDTPA claims or to remove the claims against Citi from the SAC. (Id. at 7-12.)

         III. ...


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