United States District Court, D. Nevada
before the court is defendant Caleb Langsdale's motion to
dismiss. Plaintiff Michael Cutts filed a response (ECF No.
16), to which Langsdale replied (ECF No. 19).
before the court is defendant Richland Holdings, Inc., doing
business as ACCTCORP of Southern Nevada's
(“ASN”) motion to dismiss. (ECF No. 10).
Defendant Clifford Molin M.D. a/k/a Zeeba Sleep Center
(“Molin”) joined the motion. (ECF No. 14).
Plaintiff filed a response (ECF No. 18), to which ASN and
Molin replied (ECF No. 20).
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).
Plaintiff alleges that he entered a contract with defendant
Molin 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 plaintiff in state court on
October 3, 2016, for the balance of the debt ($274.53) and a
contractual collection fee ($137.27). Id. at 3-4.
The state court entered default judgment against plaintiff
“for 1) the principal amount of $411.80 . . . plus 2)
$111.50 in court costs and 3) reasonable attorney's fees
in the amount of $750. (ECF Nos. 1 at 4, 10 at 46-47).
present case, plaintiff brings five causes of action: (1)
violations of the FDCPA; (2) abuse of process; (3) deceptive
trade practices; (4) misrepresentation; and (5) civil
conspiracy. (ECF No. 1). Plaintiff alleges that the
collection fee of 50% of the principal balance
“attempt[s] to collect more than was due under the
Contract.” Id. at 6. Plaintiff further
alleges that defendants violated the FDCPA by
mischaracterizing the character, amount, and legal status of
the debt, by using deceptive means to collect the debt, and
by taking illegal action to collect the debt. Id.
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.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
move to dismiss all causes of action in plaintiff's
complaint, arguing (1) this court does not have subject
matter jurisdiction over plaintiff's claims; (2)
plaintiff's claims are barred by claim preclusion; (3)
plaintiff's claims are barred by issue preclusion; and
(4) plaintiff's section 1692g claim and state law claims
fail as a matter of ...