United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Santander Consumer
USA, Inc.'s (“Santander”) motion to dismiss.
Dkt. 19. The Court has considered the pleadings filed in
support of and in opposition to the motion and the remainder
of the file and hereby grants the motion in part and denies
it in part for the reasons stated herein.
factual allegations in Plaintiff Suzanne Buckley's
(“Buckley”) amended complaint are accepted as
true for the purpose of ruling on the pending motion.
unspecified date prior to February 15, 2017, Buckley incurred
a debt related to the financing of a purchased vehicle. Dkt.
15 at 2. The debt was financed through Santander.
Id. Buckley's sales agreement with the vehicle
dealership stated: “You agree to pay the Creditor -
Seller . . . the Amount Financed and Finance Charge in U.S.
funds according to the payment schedule below . . . .”
Dkt. 19-1 at 2. Sometime later, but still before February 15,
2017, Buckley defaulted on her debt. Dkt. 15 at 2.
subsequent date, still before February 15, 2017, Buckley
alleges two alternative theories whereby her personal
information was transferred from Santander's possession
so that it eventually fell into the hands of Apex National
Services (“Apex”), a purported debt collection
company. Id. Buckley first alleges that the
information was stolen from Santander. Id. Under
this theory, Buckley alleges that Santander “recklessly
failed to maintain secure servers to impede any unauthorized
access to sensitive consumer information” and
“fail[ed] to notify [Buckley] that [her] personal
identifying information had been disclosed to unauthorized
third parties.” Id. at 8-9. Alternatively,
Buckley alleges that Santander “assigned, placed, or
otherwise transferred the alleged debt to an unauthorized
third party.” Id. at 2. The information that
Buckley alleges was improperly transferred to or obtained by
a third party included Buckley's name, social security
number, driver's license, address, file number, and
vehicle identification number for the subject vehicle of
Buckley's debt. Id.
unspecified date, prior to February 15, 2017, Apex contacted
Buckley in an attempt to collect the alleged debt.
Id. at 3. Buckley began negotiations with Apex and
their agent, Universal Payment Processing
(“Universal”), and eventually entered into an
agreement to settle the entire alleged debt for $5, 000.
Id. On February 15, 2017, Buckley made the
agreed-upon payment of $5, 000 to Universal. Id. The
same date, Universal sent Buckley a letter informing her that
the alleged debt was satisfied in full. Id.
16, 2017, Crown Asset Management LLC (“Crown”), a
debt collection company, filed a lawsuit against Buckley to
collect the same debt for which she had negotiated and issued
a payment to Apex and Universal. Id. Through the
course of the litigation, Buckley discovered that
unfortunately, Apex “is an unauthorized or
‘ghost' debt collector who does not legally collect
from consumers and is not licensed in the state of Washington
as a debt collector. Id. at 4. Instead, Buckley, had
been “tricked into paying a scam debt collector . . .
October 11, 2017, Buckley filed her class action complaint.
Dkt. 1. On January 4, 2018, Buckley filed an amended class
action complaint (“complaint”). Dkt. 15. In the
complaint, Buckley asserts five claims against Santander: (1)
violations of the Washington Consumer Protection Act
(“CPA”); (2) negligence, (3) intrusion upon
seclusion through disclosure of private information; (4)
breach of contract; and (5) a violation of the Washington
Data Breach Act (“DBA”). Id. at 7-11.
January 18, 2018, Santander moved to dismiss Buckley's
complaint. Dkt. 19. On February 5, 2018, Buckley responded.
Dkt. 21. On February 9, 2018, Santander replied. Dkt. 22.
Motion to Dismiss Standard
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of action.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Buckley must allege “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570.
Alternative Pleading Under Rule 8
has argued that Buckley's claims are inadequately pled
because she can only speculate as to alternative theories.
See Dkt. 19 at 9-10. The Court summarily rejects
this argument. Pleading in the alternative is plainly not the
type of formulaic “speculative” pleading
prohibited by Twombly, 550 U.S. at 555. Rule 8
authorizes the pleading of inconsistent alternative theories.
Fed.R.Civ.P. 8(d)(2). To the extent that Santander argues
that Buckley has pled inconsistent facts, it is clear that
the factual theories asserted by Buckley, while mutually
exclusive, are not inconsistent with the overarching theory
that Santander provided Apex access to Buckley's
sensitive personal information. Moreover, these mutually
exclusive factual theories are not asserted for a single
unitary claim, but rather separate alternative claims, and
“plaintiffs may state as many separate claims as they
have regardless of consistency.” In re Livent, Inc.
Noteholders Sec. Litig., 151 F.Supp.2d 371, 406
(S.D.N.Y. 2001) (citing Fed.R.Civ.P. 8(e)).
moves to dismiss Buckley's claims for violations of the
CPA. Under the CPA, a person may bring a civil action against
a business to recover damages stemming from any
“[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or
commerce.” RCW 19.86.020. “To establish a claim
under the CPA, five elements must be established: ‘(1)
unfair or deceptive act or practice; (2) occurring in trade
or commerce; (3) public interest impact; (4) injury to
plaintiff in his or her business or property; (5)
causation.'” Svendsen v. Stock, 143 Wn.2d
546, 553 (2001) (quoting Hangman Ridge Training Stables,
Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780
has pled two alternative claims under the CPA. Under the
first theory, Buckley claims that Santander violated the CPA
by assigning her debt or otherwise disclosing her personal
information to an “unauthorized third party.”
Alternatively, Buckley argues that Santander violated the CPA
by maintaining Buckley's information on an inadequately
secured server and failing to notify her when the data was
stolen. The Court will address the motion to dismiss as it
pertains to each theory.
Wrongful Disclosure Theory
moves to dismiss Buckley's CPA claim under wrongful
disclosure theory on the basis that the complaint's
cursory allegations of a wrongful disclosure to an
“unauthorized third party” is too vague to
adequately plead an unfair or deceptive act or practice.
There are three ways that a plaintiff may plead a deceptive
or unfair act or practice. State v. Mandatory Poster
Agency, Inc., 199 Wn.App. 506, 518 (2017),
review denied, 189 Wn.2d 1021 (2017). One
is to plead a per se violation that has been expressly
prohibited by a relevant statute, id., but Buckley
has not alleged that the allegedly wrongful disclosure of her
personal information constitutes a per se CPA violation. The
other two methods are to describe either an act or practice
that has the capacity to deceive a substantial portion of the
public, or a practice that is in violation of the public
Court rejects Santander's argument that all of
Buckley's CPA claims must be dismissed for the
complaint's lack of “factual allegations relating
to what [Santander]'s ‘deceptive act' was, when
it may have occurred, or who it involved.” Dkt. 19 at
9. Santander is correct that Buckley does not allege that
Santander has engaged in any misleading practices or made any
misrepresentations. “Implicit in the definition of
‘deceptive' under the CPA is the understanding that
the practice misleads or misrepresents something of material
importance.” Holiday Resort Cmty. Ass'n v.
Echo Lake Associates, LLC, 134 Wn.App. 210, 226
(2006), as amended on denial of
reconsideration (Aug. 15, 2006). Accordingly,
Buckley's claim cannot be premised on a
“deceptive” act or practice, because no such
misrepresentation has been alleged. Even so, “an act or
practice can be unfair without being deceptive . . . . The
‘or' between ‘unfair' and
‘deceptive' is disjunctive.” Klem v.
Washington Mut. Bank, 176 Wn.2d 771, 787 (2013).
[The Washington] Supreme Court has suggested a
defendant's act or practice might be “unfair”
if it “‘causes or is likely to cause substantial
injury to consumers which is not reasonably avoidable by
consumers themselves and is not outweighed by countervailing
benefits.'” Klem, 176 Wn.2d at 787
(quoting 15 U.S.C. § 45(n)). Similarly, a
defendant's act or practice might be “unfair”
if it “offends public policy as established ‘by