United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION TO
STANLEY A. BASTIAN UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss Under Rule
12(b)(6), ECF No. 5. Defendant requests the Court dismiss
Plaintiff's Complaint because it fails to state an
actionable claim under the Fair Debt Collection Practices
Act's (“FDCPA”), 15 U.S.C. § 1962,
et seq., prohibition against false or misleading
representations. Id. § 1692e. The Court held a
hearing on May 18, 2018 in Spokane, Washington. Kirk Miller
appeared on behalf of Plaintiff, and Marc Rosenberg appeared
on behalf of Defendant. The Court took the motion under
advisement. After careful consideration of the parties'
briefings and presentation to the Court, Defendant's
motion is granted.
about February 3, 2018, 4M Collections, LLC d/b/a/ Discovery
Financial Services (“Defendant”) served a Whitman
County District Court summons and complaint (the
“Summons”) upon Plaintiff Hector Lopez. The
summons provided, in part:
In order to defend against this lawsuit, you must respond to
the complaint by stating your defense in writing, and serve a
copy upon the court and the person signing this Summons,
within twenty (20) days after the service of this Summons,
excluding the day of service, or a Default Judgment may be
entered against you without notice. A Default Judgment is one
where plaintiff is entitled to what it asks for because you
have not responded. If you serve a Notice of Appearance on
the undersigned person, you are entitled to notice before a
Default Judgment may be entered.
ECF No. 8, Ex. 1. The Summons was related to an alleged debt
owed by Plaintiff; a debt Defendant was attempting to
March 2, 2018, Plaintiff initiated this action against
Defendant pursuant to the FDCPA. ECF No. 1. Plaintiff alleges
Defendant violated the FDCPA's prohibition against false
or misleading representations in connection with the
collection of a debt. See 15 U.S.C. § 1692e.
Specifically, Plaintiff claims the language in the Summons
constitutes a “false, deceptive, or misleading
representation” because is states Plaintiff is required
to both serve a copy of his response upon Defendant and file
the same upon the court, “or Default Judgment may be
entered against [him] without notice.” ECF No. 8, Ex.
1. Plaintiff claims this statement is contrary to Washington
law and the Washington Civil Rules for Courts of Limited
Jurisdiction (“CRLJ”), which do not require a
person serve his response to a lawsuit upon the court in
order to avoid a no-notice default judgment.
March 21, 2018, Defendant filed the instant motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No.
motion to dismiss, all well-pleaded allegations of material
fact are taken as true and construed in a light most
favorable to the non-moving party. Wyler Summit
P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658,
661 (9th Cir. 1998). Under Rule 12(b)(6), a complaint
“should not be dismissed unless it appears beyond doubt
that [the] plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Hydranautics v. FilmTec Corp., 70 F.3d 533, 535-36
(9th Cir. 1995).
Rule of Civil Procedure 8(a)(2) requires that each claim in a
pleading be supported by “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” To satisfy this requirement, a complaint must
contain sufficient factual content “to state a claim to
relief that is plausible on its face.” Landers v.
Quality Commc'ns, Inc., 771 F.3d 638, 641 (9th Cir.
2014) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim for relief is plausible on its
face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
evaluating whether a complaint states a plausible claim for
relief, courts rely on “judicial experience and common
sense” to determine whether the factual allegations,
which are assumed to be true, “plausibly give rise to
an entitlement to relief.” Id. at 679.
FDCPA was created to protect consumers from unfair and
deceptive debt collection practices. 15 U.S.C. § 1692.
The statute prohibits a debt collector from using “any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. Despite this broad language, however, not all
false statements are actionable. To constitute a violation of
the FDCPA, the alleged false statement must also be
“material.” Donohue v. Quick Collect,
Inc., 592 F.3d 1027, 1033 (9th Cir. 2010).
Complaint fails to state a plausible claim under the FDCPA
because the language in the Summons does not constitute a
“false, deceptive, or misleading representation.”
15 U.S.C. § 1692e. Plaintiff argues the following
language in the Summons is a false statement of Washington
law and the applicable court rules: “In order to defend
against this lawsuit, you must respond to the complaint by
stating your defense in writing, and serve a copy upon the
court and the person signing this Summons, within twenty (20)
days after the service of this Summons, excluding the day of
service, or a Default Judgment may be entered against you
without notice.” ECF No. 8, Ex. 1. Plaintiff ...