United States District Court, E.D. Washington
ORDER RULING ON DEFENDANT'S MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM OR ALTERNATIVELY MOTION FOR SUMMARY
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
the Court, without oral argument, is Defendants' Motion
and Memorandum to Dismiss for Failure to State a Claim, or,
Alternatively Motion for Summary Judgment, ECF No. 24.
Fuqua's First Amended Complaint, ECF No. 3, alleges that
Defendants Paul J. Wasson, Jane Doe Wasson, and Associated
Credit Services (“Associated”) (collectively,
“Defendants”) committed “unfair and
deceptive” acts in violation of state and federal
consumer protection laws in connection with its
Associated's attempts to collect on debt owed by
first alleges that Defendants executed an application for a
writ of garnishment that falsely stated Associated had
“reason to believe” Fuqua's account contained
nonexempt funds. Fuqua also asserts that Associated
unlawfully attempted to collect a $5 notary fee its
application for reimbursement of court costs in connection
with its motion for default judgment in the Spokane County
District Court. Fuqua alleges that Associated's actions
under both claims violated the Fair Debt Collection Practices
Act (FDCPA), 18 U.S.C. § 1692 et seq., and the
Washington Consumer Protection Act (CPA), Wash. Rev. Code
(RCW) § 19.86 et seq.
move for an order dismissing the claims or, alternatively,
for summary judgment on both claims. Because Defendants
submitted evidence beyond that contained in the pleadings,
the Court considers the motion as one for summary judgment.
Under this standard, taking all facts and inferences in the
light most favorable to Fuqua's claims, Fuqua cannot
establish facts sufficient to support her claims for
violation of the FDCPA. Accordingly, the Court grants
Defendants' motion for summary judgment on Fuqua's
FDCPA claims. The Court also declines to exercise continued
supplemental jurisdiction over Fuqua's remaining state
support of their motion, Defendants have asked the Court to
consider documents and declarations not attached to
Fuqua's complaint. In deciding a Rule 12(b)(6) motion,
the court generally looks only to the face of the complaint
and the documents attached thereto. Van Buskirk v. Cable
News Network, Inc., 284 F.3d 97, 980 (9th Cir. 2002);
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). A court
must normally convert a Rule 12(b)(6) motion into a Rule 56
motion for summary judgment if it “considers evidence
outside the pleadings.” United States v.
Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); see
also Fed. R. Civ. P. 12(d) (“If, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule
56.”). The Court therefore considers Defendants'
motion as a motion for summary judgment.
court converts a motion to dismiss to a motion for summary
judgment, it must give “[a]ll parties . . . a
reasonable opportunity to present all the material that is
pertinent to the motion.” Fed R. Civ. P. 12(d). In the
Ninth Circuit generally the “non-moving party must be
allowed to conduct discovery to oppose [the] motion.”
Inlandboatmens Union of Pacific v. Dutra Group, 279
F.3d 1075, 1083 (9th Cir. 2002). Here, however, it appears
from the face of the complaint and Fuqua's responsive
memoranda that all information to oppose the motion is within
Fuqua's knowledge. Despite the fact that Defendants
styled their motion as a Motion and Memorandum to Dismiss for
Failure to State a Claim, or, Alternatively Motion for
Summary Judgment, Fuqua did not object to the motion or
request more time to conduct discovery under Fed.R.Civ.P.
56(d). Instead, Fuqua responded to the motion on the merits,
included an opposing statement of facts, and included her own
declaration in support of her opposition to Defendants'
motion. Accordingly, the Court will consider the matter on
the materials submitted.
judgment is appropriate if the “movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Once a party has moved for summary
judgment, the opposing party must point to specific facts
establishing that there is a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
If the nonmoving party fails to make such a showing for any
of the elements essential to its case for which it bears the
burden of proof, the trial court should grant the summary
judgment motion. Id. at 322. “When the moving
party has carried its burden under Rule [56(a)], its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts. . . . [T]he nonmoving party
must come forward with ‘specific facts showing that
there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (internal citation omitted).
Credit Services is a Washington debt collection company in
Spokane Valley Washington. Associated is owned and operated
by brothers David and Jon Solberg. Attorney Paul Wasson
represents Associated in various debt collection matters.
April 20, 2015, Associated filed a debt collection action in
the Spokane County District Court. ECF No. 26 at 4.
Associated hired Alpine Legal Process, Inc.,
(“Alpine”) to effect service. Id. Alpine
is a legal service process company owned by Chad Solberg. The
owners of Associated, Jon and David Solberg, are Chad
Solberg's uncle and father, respectively, but neither has
an ownership interest in Alpine. Id. at 6. Alpine
charges Associated a flat rate of $45 per hour for process
service. ECF No. 26 at 5. Alpine effected service on Fuqua
and billed Associated $45. Id.
Washington law does not require a service of process
declaration to be notarized, Associated prefers process
servers to use a notarized declaration of service.
Associated's attorney, Paul Wasson, works in the same
building as Associated. ECF No. 28 at 2. His secretary,
Cynthia Henderson, is a notary. Id. Wasson has a
practice of allowing Associated to send process servers to
Henderson for affidavit notarizations. Id. Henderson
does not charge a fee for these notary services. Id.
In Fuqua's case, Henderson notarized the declaration of
service, which was signed by Alpine process server Jason
Wilson. ECF No. 26 at 6.
Fuqua failed to defend against the suit, Associated filed a
motion for default and default judgment in Spokane County
District Court, which the court granted on July 16, 2015. ECF
No. 26 at 7. The motion contained a request for reimbursement
of the $45 process service cost. Id. In its
affidavit supporting its motion for order of default
judgment, Associated indicated that the service fee consisted
on $30 for service, $10 for return, and $5 for
“Notary.” Id. at 5. This was false.
David Solberg believed that the Spokane County District Court
would not approve the $45 process service flat fee, so he
falsely allocated portions of the flat fee to service,
return, and notary. Id. In fact, the $45 requested
represents the $45 flat fee charged by Alpine. Id.
obtaining the judgment, Associated sought to collect on the
outstanding debt by garnishing funds in Fuqua's bank
accounts. Before applying for a writ of garnishment,
Associated conducted a credit inquiry on Fuqua. Id.
at 7-8. The inquiry showed that Fuqua had several open
accounts, including three accounts with Spokane Teacher's
Credit Union. Id. at 12-14. Because Fuqua had a
checking account, a credit card, and a loan through Spokane
Teacher's Credit Union, Associated concluded Fuqua was
likely employed and that the bank account would likely
contain nonexempt funds. Id. at 8. In reality, Fuqua
was not employed at that time. ECF No. 34 at 3. In fact, she
had been receiving government assistance for nearly the
entire year of 2016. ECF No. 34 at 3.
as Associated's attorney, Wasson executed a writ of
garnishment for funds held in Fuqua's account at Spokane
Teacher's Credit Union on September 13, 2016. ECF No. 29
at 3. Associated served Fuqua's bank with the writ of
garnishment on October 5, 2016. Following service of the
writ, Spokane Teachers Credit Union froze the funds in
Fuqua's account. The balance in Fuqua's account was
$165.12. ECF No. 34 at 3. The money in Fuqua's ...