Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cutts v. Richland Holdings, Inc.

United States District Court, D. Nevada

February 27, 2018

MICHAEL CUTTS, Plaintiffs,
v.
RICHLAND HOLDINGS, INC., Defendants.

          ORDER

         Presently 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).

         Also 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).

         I. Introduction

         The 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).

         In the 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.”[1] 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.

         II. Legal Standards

         The 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.

         To 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.

         In 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.

         The 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 litigation.

Id.

         III. Discussion

         Defendants 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.