United States District Court, D. Nevada
before the court is defendant Richland Holdings, Inc., doing
business as ACCTCORP of Southern Nevada's
(“ASN”) motion to dismiss. (ECF No. 7). Defendant
RC Willey Financial Services (“RC Willey”) joined
in the motion. (ECF No. 9). Plaintiffs Dany Geraldo and
Wendoly Guzman (“plaintiffs”) responded (ECF No.
11), to which ASN replied (ECF No. 13), and RC Willey joined
in the reply (ECF No. 14).
before the court is plaintiffs' motion for leave to amend
complaint. (ECF No. 12). Defendants responded (ECF No. 15),
and plaintiffs replied (ECF No. 16).
present case arises out of defendants' alleged violations
of the Fair Debt Collection Practices Act, 15 U.S.C. §
1692, et seq. (“FDCPA”). (ECF No. 1).
Plaintiffs filed their complaint on January 3, 2017.
(Id.). Plaintiffs allege that they entered a
contract with RC Willey and failed to make payments pursuant
to that contract, at which time the debt was assigned to ASN.
(Id. at 2). ASN filed a lawsuit against plaintiffs
in state court on June 11, 2014, for the balance of the debt
($8, 080.38) and a contractual collection fee ($4, 040.19).
(Id. at 2-3); (ECF No. 7 at 4).
judgment was entered against plaintiffs in the state court
case in October 2014. (ECF Nos. 1 at 2-3, 7 at 4).
allege that the collection fee could not be greater than 40%
of the principal balance per Utah law, which governed the
contract. (Id.) However, the collection fee is
allegedly 50% of the principal balance. (Id.).
Plaintiffs further allege that defendants violated the FDCPA
by using unfair means to collect the debt and by failing to
notify them that the debt included the collection fee.
(Id. at 3-4). Finally, plaintiffs allege that
defendants unlawfully charged them 24% interest on the total
amount, including the collection fee. (Id. at 3).
present case, plaintiffs bring four causes of action: (1)
violations of the FDCPA; (2) abuse of process; (3) deceptive
trade practices; and (4) civil conspiracy. (ECF No. 1).
Defendants move to dismiss, arguing (1) plaintiffs'
claims are time-barred; (2) this court does not have subject
matter jurisdiction over plaintiffs' claims; (3)
plaintiffs are judicially estopped from asserting their
claims; (4) plaintiffs' claims are barred by claim
preclusion; and (5) plaintiffs' claims are barred by
issue preclusion. (ECF No. 7). Alternatively, defendants move
for a more definite statement. (Id.). The court will
address each argument as it sees fit.
Leave to amend
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). In order to decide
whether to give leave to amend, “[a] district court
determines the propriety of a motion to amend by ascertaining
the presence of any of four factors: bad faith, undue delay,
prejudice to the opposing party, and/or futility. Generally,
this determination should be performed with all inferences in
favor of granting the motion.” Griggs v. Pace Am.
Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999) (citation
omitted). Indeed, “where there is a lack of prejudice
to the opposing party and the amended complaint is obviously
not frivolous, or made as a dilatory maneuver in bad faith,
it is an abuse of discretion to deny [a motion to
amend.]” Howey v. United States, 481 F.2d
1187, 1190-91 (9th Cir. 1973).
Motion to dismiss
court may dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). 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). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. 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. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.