United States District Court, W.D. Washington, Tacoma
MAUDINA BOONE, individually and on behalf of all others similarly situated, Plaintiff,
DYNAMIC COLLECTORS, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF
LEAVE TO AMEND
BENJAMIN H. SETTLE, United States District Judge.
matter comes before the Court on Defendant Dynamic
Collectors, Inc.'s (“Dynamic”) motion to
dismiss. Dkt. 14. 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 the motion in part for the reasons stated herein.
November 8, 2018, Plaintiff Maudina Boone
(“Boone”) filed suit as a putative class
representative against Dynamic. Dkt. 1. Boone sues for
damages arising from Dynamic's alleged violations of the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq. (“FDCPA”). Dkts. 1, 10. On
January 23, 2019, Dynamic filed a motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(6). Dkt. 9. On February 7, 2019, Boone
filed an amended complaint. Dkt. 10. On February 12, 2019,
Dynamic withdrew its motion to dismiss. Dkt. 11. On February
21, 2019, Dynamic filed a new motion to dismiss the amended
complaint pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. 14. On
March 25, 2019, Boone responded. Dkt. 20. On April 9, 2019,
Dynamic replied. Dkt. 21.
time prior to November 15, 2017, Boone incurred medical debt.
Dkt. 10. On November 15, 2017, Boone received a letter from
Dynamic seeking to collect on the debt. Id. ¶
10. The letter listed amounts owed for principal balance,
interest, attorney's fees, court costs, and collection
fees. Id. ¶ 11. The principal balance owed was
listed as $438. Id. ¶ 16. Interest,
attorney's fees, court costs, and collection fees all
listed a $0 balance. Id. ¶ 12. Below the
amounts owed, “the letter states that interest accrues
at 12% per annum.” Id. ¶ 13.
alleges that “[i]t appears [Dynamic] is seeking
interest at 12% which begins to accrue from the date of the
letter, as opposed to the date the debt became
delinquent.” Id. ¶ 19. Boone also alleges
that the letter makes it appear as though Dynamic
“expects the least sophisticated consumer to understand
that interest will only start accruing from the date on the
alleges that Dynamic's false and deceptive
representations violate sections 1692d, e(2) and e(10) of the
FDCPA, Dynamic's attempt to collect interest violates
section 1692f(1) of the FDCPA, and Dynamic's failure to
list the correct amount of the debt violates section 1692(g)
of the FDCPA. Dkt. 10, ¶¶ 41-43.
Fed.R.Civ.P. 12(b)(6) 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 plaintiffs favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). Despite
this, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Plaintiffs must allege “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570.
Stating a Claim under the FDCPA
correctly explains that Dynamic's motion to dismiss
contests only whether it has committed an act prohibited by
the FDCPA, not any of the elements establishing that
collection of the debt is governed by the FDCPA. Dkt. 20 at
6; see also Dkt. 14.
violations are assessed from the “least sophisticated
debtor” standard, which is “lower than simply
examining whether particular language would deceive or
mislead a reasonable debtor.” Terran v.
Kaplan, 109 F.3d 1428, 1431-32 (9th Cir. 1997) (quoting
Swanson v. S. Or. Credit Serv., Inc., 839 F.2d 1222,
1227 (9th Cir. 1988). “An FDCPA plaintiff need not even
have actually been misled or deceived by the debt
collector's representation; instead, liability depends on
whether the hypothetical ‘least sophisticated
debtor' likely would be misled.” Tourgeman v.
Collins Fin. Servs., Inc., 755 F.3d 1109, 1117-18 (9th
Cir. 2014). “This inquiry is objective and is
undertaken as a matter of law.” Id. at 1118
(citing Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d
1055, 1060-61 (9th Cir. 2011)). Though the least
sophisticated debtor “may be uninformed, naïve,
and gullible, ” a “bizarre or unreasonable”
interpretation of a collection notice will not violate the
FDCPA. Evon v. Law Office of Sidney Mickell, 688
F.3d 1015, 1027 (9th Cir. 2012).
actionable under sections 1692e or 1692f of the FDCPA, any
ambiguity or false or misleading statement must be material.
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033
(9th Cir. 2010). A false or misleading statement is material
when it affects the consumer's ability to make
intelligent decisions about how to address their debt.
Id. Therefore, on a motion to dismiss, the question
is not whether sufficient facts are present such that it is
plausible the plaintiff was misled or ...