United States District Court, D. Nevada
ROXANNE WHITTUM, individually and on behalf of all and others similarly situated, Plaintiffs,
ACCEPTANCE NOW, Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Defendant Acceptance Now West
LLC's (“Defendant”) Motion to
Dismiss Amended Complaint (ECF No. 19) and Alternative Motion
to Strike (ECF No. 20).
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.
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.
Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)
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).
Motion to Dismiss Under Fed.R.Civ.P. 12(b)(2)
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).
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).