United States District Court, D. Nevada
before the court is defendant Rent Recover of Better NOI,
LLC's motion to dismiss. (ECF No. 8). Plaintiff Linda
Nevils filed a response (ECF No. 10), to which defendant
replied (ECF No. 11).
instant dispute concerns the Fair Debt Collections Practices
Act (“FDCPA”).Defendant is a debt collector. (ECF No.
1). On an unspecified date, defendant began collection
activities on an alleged consumer debt owed by the plaintiff
to third party Mt. Vernon. Id. Defendant reported
the debt on plaintiff's credit report. Id. On
October 21, 2016, plaintiff disputed the debt directly with
the defendant. Id. On January 2, 2017, plaintiff ran
a credit report and determined that defendant re-reported the
alleged debt on plaintiff's December 2016 credit report.
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if
the complaint, considered in its entirety, fails to allege
facts on its face sufficient to establish subject matter
jurisdiction. In re Dynamic Random Access Memory (DRAM)
Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a 12(b)(1) motion to
dismiss, the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court to survive
the motion. McCauley v. Ford Motor Co., 264 F.3d
952, 957 (9th Cir. 2001) (citing McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). More
specifically, the plaintiff's pleadings must show
“the existence of whatever is essential to federal
jurisdiction, and, if [plaintiff] does not do so, the court,
on having the defect called to its attention or on
discovering the same, must dismiss the case, unless the
defect be corrected by amendment.” Smith v.
McCullough, 270 U.S. 456, 459 (1926).
moving to dismiss under Rule 12(b)(1), the challenging party
may either make a “facial attack, ” confining the
inquiry to challenges in the complaint, or a “factual
attack” challenging subject matter on a factual basis.
Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n. 2 (9th Cir. 2003). For a facial attack, the court
assumes the truthfulness of the allegations, as in a motion
to dismiss under Rule 12(b)(6). Trentacosta v. Frontier
Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th
Cir. 1987). By contrast, when presented as a factual
challenge, a Rule 12(b)(1) motion can be supported by
affidavits or other evidence outside of the pleadings.
United States v. LSL Biotechs., 379 F.3d 672, 700 n.
14 (9th Cir. 2004) (citing St. Clair v. City of
Chicago, 880 F.2d 199, 201 (9th Cir. 1989)).
asserts that the court lacks subject matter jurisdiction over
plaintiff's claims because plaintiff has not met the
requirements for standing to sue. Plaintiff responds that a
violation of the FDCPA creates a per se injury in
establish standing, a plaintiff must plead three elements:
(1) an injury-in-fact; (2) a causal connection between the
injury and the alleged misconduct; and (3) a likelihood that
the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). The party invoking federal jurisdiction bears the
burden of demonstrating that it has standing to sue.
Id. at 560-61. “[A]t the pleading stage, the
plaintiff must ‘clearly . . . allege facts
demonstrating' each element” of standing.
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)
(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
establish injury in fact, a plaintiff must show that he or
she suffered ‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent.'” Spokeo,
136 S.Ct. at 1548. Moreover, a concrete injury “must
actually exist, ” and “must affect the plaintiff
in a personal and individual way.” Id. As the
Court noted in Spokeo,
Congress' role in identifying and elevating intangible
harms does not mean that a plaintiff automatically satisfies
the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that
person to sue to vindicate that right. Article III standing
requires a concrete injury even in the context of a statutory
violation. For that reason, Robins could not, for example,
allege a bare procedural violation, divorced from any
concrete harm, and satisfy the injury-in-fact requirement of
Id. at 1549 (citing Summers v. Earth Island
Institute, 555 U.S. 488, 496 (2009)
(“[D]eprivation of a procedural right without some
concrete interest that is affected by the deprivation ... is
insufficient to create Article ...