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Whittum v. Acceptance Now

United States District Court, D. Nevada

September 30, 2019

ROXANNE WHITTUM, individually and on behalf of all and others similarly situated, Plaintiffs,
v.
ACCEPTANCE NOW, Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Defendant Acceptance Now West LLC's[1] (“Defendant”) Motion to Dismiss Amended Complaint (ECF No. 19) and Alternative Motion to Strike (ECF No. 20).

         II. PROCEDURAL BACKGROUND

         Plaintiff filed an initial complaint in this action on August 21, 2018 (ECF No. 1) and the Amended Complaint which serves as the operative complaint in this action on November 20, 2018 (ECF No. 18). Defendant filed the instant Motions to Dismiss and Alternative Motion to Strike on December 4, 2019 (ECF Nos. 19, 20).

         III. FACTUAL ALLEGATIONS

         Plaintiff asserts that beginning in July 2018, she received multiple calls from Defendant in an attempt to solicit information about Plaintiff's sister, allegedly related to collection of a debt. Id. at 5. Plaintiff asserts the calls violated her common law right to privacy and that she suffered and continues to suffer from emotional and physical symptoms. Id. at 6-7. Plaintiff asserts three claims against Defendant, including “negligent violations” of the Telephone Consumer Protection Act (TCPA), “knowing and/or willful” violations of the TCPA, and violations of NRS. 598.0918 and NRS 41.600 of the Nevada Deceptive Trade Practices Act (NDTPA). ECF No. 18 at 12-14. Plaintiff seeks to bring this action on behalf of herself and two putative classes-those who have been harmed by Defendant in violation of the TCPA, and those who were harmed in violation of NRS 598.0918 and NRS 41.600. Id. at 8-12. Plaintiff seeks both damages and injunctive relief. Id. at 14-15.

         IV. LEGAL STANDARD

         A. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)

         In order to state a claim upon which relief can be granted, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In ruling on a motion to dismiss for failure to state a claim, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Security Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

         B. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(2)

         A plaintiff bears the burden of establishing personal jurisdiction. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168 (9th Cir.2006). When, as here, the Court resolves the motion to dismiss based only on written submissions, a plaintiff must make a prima facie showing of facts that would support personal jurisdiction. Id. That is, Plaintiffs “need only demonstrate facts that if true would support jurisdiction.” Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir.1995).

         To establish that personal jurisdiction over a defendant is proper, a plaintiff must show (1) that the forum state's long-arm statute confers personal jurisdiction and (2) that the exercise of jurisdiction comports with the constitutional principles of due process. Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002). Because Nev. Rev. Stat. section 14.065 permits Nevada courts to exercise jurisdiction to the same extent as the Constitution, this Court need only consider the constitutional principles of due process. Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014).

         V. ...


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