Bennett v. Kinney et al

Northern District of California, cand-4:2015-cv-02200

ORDER GRANTING, IN PART, MOTION TO DISMISS AND CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 10/2/2015. Initial Case Management Conference set for 10/9/2015 11:00 AM in Courtroom 5, 2nd Floor, Oakland. Signed by Judge Jeffrey S. White on 8/5/15.

Interested in this case?

Current View

Full Text

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 PETER BENNETT, 8 Case No. 15-cv-02200-JSW Plaintiff, 9 ORDER GRANTING, IN PART, v. MOTION TO DISMISS AND 10 CONTINUING CASE MANAGEMENT ANSEL D KINNEY, et al., CONFERENCE 11 Defendants. RE: DOCKET. NO. 13 12 Northern District of California United States District Court 13 14 Now before the Court for consideration is the motion to dismiss filed by Ansel D. Kinney 15 and the Law Offices of Ansel D. Kinney (collectively "Kinney"). The Court has considered the 16 parties' papers, relevant legal authority, and the record in this case, and it finds the motion suitable 17 for disposition without oral argument.1 See N.D. Civ. L.R. 7-1(b). 18 The Court CONTINUES the case management conference scheduled for August 21, 2015 19 to October 9, 2015. The Court VACATES the motion hearing scheduled for August 28, 2015, and 20 GRANTS, IN PART, AND DENIES, IN PART, WITHOUT PREJUDICE, Kinney's motion. 21 BACKGROUND 22 On May 15, 2015, Plaintiff, Peter Bennett ("Bennett") filed his original complaint against 23 Kinney, Insterstate Deposition Subpoena Service, Inc., Attorney Service of San Francisco, and 24 Tony Klein. (Docket No. 1.) On June 18, 2015, Bennett filed an Amended Complaint against 25 these Defendants and added CynthiaVoss ("Voss"), his ex-girlfriend, as a Defendant. (Amended 26 27 1 28 Kinney has not filed a reply brief. Accordingly, the motion is now ripe for consideration. 1 Complaint ("AC") ¶¶ 2-6.)2 2 Bennett asserts a claim against Kinney for violations of the Fair Debt Collection Practices 3 Act ("FDCPA"), and he asserts state law claims against Kinney for aiding and abetting breach of 4 fiduciary duty, third-party legal malpractice, and abuse of process. All of these claims arise out of 5 Kinney's efforts to collect on a judgment that Voss obtained against Bennett. (See AC ¶¶ 14-52.) 6 ANALYSIS 7 A. Applicable Legal Standard. 8 A motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim 9 upon which relief can be granted. On a motion to dismiss under Rule 12(b)(6), the Court 10 construes the allegations in the complaint in the light most favorable to the non-moving party and 11 takes as true all material allegations in the complaint. Sanders v. Kennedy, 794 F.2d 478, 481 (9th 12 Cir. 1986). Even under the liberal pleading standard of Rule 8(a)(2), "a plaintiff's obligation to Northern District of California United States District Court 13 provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and 14 a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. 15 Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Rather, 16 a plaintiff must instead allege "enough facts to state a claim to relief that is plausible on its face." 17 Id. at 570. "The plausibility standard is not akin to a probability requirement, but it asks for more 18 than a sheer possibility that a defendant has acted unlawfully.... When a complaint pleads facts 19 that are merely consistent with a defendant's liability, it stops short of the line between possibility 20 and plausibility of entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 21 Twombly, 550 U.S. at 557) (internal quotation marks omitted). 22 B. The Court Dismisses the FDCPA Claim, With Leave to Amend. 23 In his fifth claim for relief, Bennett alleges that Kinney violated the FDCPA by filing "a 24 false proof of service with respect to an order of examination of debtor, and did not correct after 25 being repeatedly informed that it was false." (AC ¶ 83.) Kinney moves to dismiss on the basis 26 that Bennett fails to allege sufficient facts to show that Kinney is a "debt collector" for purposes of 27 2 28 Interstate Deposition Subpoena Service, Inc., Attorney Service of San Francisco, Tony Klein and Cynthia Voss have not yet appeared. 2 1 the FDCPA. 2 The term 'debt collector' means any person who uses any instrumentality of interstate commerce or the mails in any business 3 the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts 4 owed or due or asserted to be owed or due another. . . . 5 15 U.S.C. § 1692a(6) (emphasis added). Bennett fails to include sufficient facts from which the 6 Court could reasonably infer that the "principal purpose" of Kinney's business is the collection or 7 debts or that Kinney "regularly" collects or attempts to collect debts. Accordingly, Bennett fails to 8 allege sufficient facts to show that Kinney is a debt collector as that term is defined in the FDCPA. 9 Accordingly, the Court GRANTS, in part, Kinney's motion to dismiss on that basis. 10 Because the Court cannot say it would be futile, the Court GRANTS Bennett leave to amend this 11 claim, if he can in good faith and in compliance with his obligations under Federal Rule of Civil 12 Procedre 11, allege facts that show Kinney is a "debt collector." Northern District of California United States District Court 13 C. The Court Denies the Motion to Dismiss the State Law Claims, Without Prejudice. 14 The Court has dismissed the FDCPA claim with leave to amend. For the following 15 reasons, the Court denies the motion to dismiss the state law claims, without prejudice to renewing 16 the arguments therein, if Bennett files a second amended complaint. 17 Bennett argues that diversity jurisdiction exists. However, Bennett alleges that he is "an 18 individual residing in London, United Kingdom." (AC ¶ 1.) "In order to be a citizen of a State 19 within the meaning of the diversity statute, a natural person must be both a citizen of the United 20 States and domiciled within the State." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 21 828 (1989) (emphasis in original). Bennett has not alleged that he is either a citizen of a particular 22 state or domiciled within that state. Therefore, the Court cannot determine whether diversity 23 jurisdiction exists. See Turan Petroleum, Inc. v. Lentin, 482 F. Supp. 2d 1170, 1171 (C.D. Cal. 24 2007) ("[I]t has been held consistently that a diversity suit may not be maintained under 28 U.S.C. 25 § 1332(a)(1) by or against a United States citizen who is domiciled in a foreign country, for a 26 resident of a foreign country is not necessarily a citizen thereof.") (quoting inter alia, Coury v. 27 Prot, 85 F.3d 244, 249-50 (5th Cir. 1996)). 28 The Court could, in its discretion, exercise supplemental jurisdiction over the state law 3 1 claaims, if the FDCPA F m survives. Because it iss not clear thhat Bennett w claim will be able to state a 2 fed deral claim, the t Court shall reserve ru uling on wheether it will exercise suppplemental juurisdiction 3 oveer the state law claims. 4 CONCLU USION 5 For the forgoing reaasons, the Court GRANT TS, in part, aand DENIES S WITHOUT 6 PR REJUDICE, in i part, Kinn ney's motion n to dismiss. Bennett shaall file a Seccond Amendded 7 Complaint by no n later than n August 28, 2015, and D Defendants sshall answer or otherwisee respond 8 witthin twenty-o one (21) day ys of service of the Seco nd Amendedd Complaintt. If Bennettt continues 9 to assert a that th he Court has diversity jurrisdiction, hhe must incluude specific ffacts regardiing his 10 citiizenship and d domicile. 11 IT IS SO S ORDER RED. 12 Daated: August 5, 2015 Northern District of California United States District Court 13 14 ___________________________ JE EFFREY S. W WHITE 15 Unnited States D District Judgge 16 17 18 19 20 21 22 23 24 25 26 27 28 4