United States District Court, D. Nevada
before the court is defendant Plusfour, Inc.'s
(“Plusfour”) motion to dismiss. (ECF No. 7).
Plaintiff Hoang Nguyen (“Nguyen”) filed a
response (ECF No. 7), to which Plusfour replied (ECF No. 9).
before the court is Nguyen's motion for leave to amend
(ECF No. 8). Plusfour filed a response (ECF No. 10), to which
Nguyen replied (ECF No. 11).
action arises from Plusfour's debt collection practices.
The complaint alleges the following facts:
Plusfour reported debt in the amount of $132 against Nguyen
without identifying the original creditor. (ECF No. 1). In
March 2018, Nguyen discovered the debt report and contacted
Plusfour over the phone. Id. Nguyen requested
validation of the debt. Id. Plusfour informed Nguyen
that it would cost $10 to validate the debt or that Nguyen
could receive validation upon paying off the account.
Id. Nguyen did not pay for the validation service or
pay off the account. See id. To date, Plusfour
continues to engage in collection practices pertaining to the
September 28, 2018, Nguyen initiated this action, asserting a
single cause of action for violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692. Id. Now, Plusfour moves to dismiss the
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (ECF No. 6).
addition, Nguyen has filed a countermotion for leave to amend
the complaint. (ECF No. 8). The amended complaint, which
Nguyen has attached to his motion as an exhibit, does not
contain any new factual allegations. See (ECF No.
Failure to state a claim
may dismiss a 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);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, 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.” Iqbal, 556
U.S. 662, 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiffs complaint alleges facts that allow the court to
draw a reasonable inference that the defendant is liable for
the alleged misconduct. Id. at 678.
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. (internal quotation marks
omitted). 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 ...