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Nguyen v. Plusfour, Inc.

United States District Court, D. Nevada

April 26, 2019

HOANG NGUYEN, Plaintiff(s),
v.
PLUSFOUR, INC., a Nevada Corporation, Defendant(s).

          ORDER

         Presently 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).

         Also 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).

         I. Facts

         This 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 debt. Id.

         On 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).

         In 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. 8-1).

         II. Legal Standard

         a. Failure to state a claim

         A court 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).

         “Factual 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).

         In 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.

         Second, 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.

         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. (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.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The ...


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