1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Oliver Complot, et al., No. CV-25-00255-PHX-SMB
10 Plaintiffs, ORDER
11 v.
12 US Bank NA, et al.,
13 Defendants. 14 15 Before the Court are three motions to dismiss Plaintiffs’ Oliver Complot and Corina 16 Tolamaa (collectively, “Plaintiffs”), who are proceeding pro se, First Amended Complaint 17 (Doc. 8). The Defendants and their respective motions are as follows: Credit Control, LLC 18 (“Credit Control”) (Docs. 16–17); U.S. Bank National Association (“U.S. Bank”) (Doc. 19 25); and LVNV Funding LLC (“LVNV”) (Doc. 35). Also before the Court are Plaintiffs’ 20 Motion for Leave to File Sur-Reply to LVNV (Doc. 44), and their Motion for Leave to File 21 a Second Amended Complaint (Docs. 51–52). Defendants U.S. Bank and LVNV 22 responded in opposition to Plaintiffs’ Motion for Leave to File a Second Amended 23 Complaint. (Doc. 53, 54.) Having reviewed the briefing and the relevant case law, the 24 Court grants all three motions to dismiss, denies Plaintiffs’ Motion for Leave to File 25 Sur-Reply, and grants in part Plaintiffs’ Motion for Leave to File a Second Amended 26 Complaint. 27 I. BACKGROUND 28 Plaintiffs Oliver Complot and Corina Tolamaa are married. (Doc. 8 at 2.) Plaintiff 1 Complot took out credit with U.S. Bank, which he eventually stopped paying back. (Doc. 2 8 at 53, 56–60.) LVNV purchased the account and Resurgent Capital Services LP 3 (“Resurgent”) sought to collect the debt on behalf of LVNV.1 (Doc. 8 at 63.) Credit 4 Control is a debt collector attempting to collect on a debt Plaintiff Tolamaa had with 5 Citibank.2 (Doc. 8 at 42.) 6 In November 2023, Plaintiffs initiated a dispute resolution process with three 7 consumer reporting agencies (“CRAs”): Experian Information Solutions, Inc. 8 (“Experian”); Equifax Information Services, LLC (“Equifax”); and Trans Union, LLC 9 (“Trans Union”). (Doc. 8 at 50–51.) As part of the dispute resolution process, the three 10 CRAs notified U.S. Bank to investigate and verify that the information provided to the 11 CRAs was accurate. (Doc. 8 at 57–58, 60.) Plaintiffs allege U.S. Bank continued to verify 12 inaccurate information in investigations in December 2023, February 2024, and July 2024. 13 (Doc. 8 at 51, 57–60.) Plaintiffs assert that the information U.S. Bank provided to the 14 CRAs was inconsistent and inaccurate in violation of the Fair Credit Reporting Act (the 15 “FCRA”). (Doc. 8 at 51–60.) Plaintiffs also assert the following state claims based on this 16 conduct: invasion of privacy, false light, intrusion upon seclusion; respondeat superior 17 liability; violation of the Arizona Consumer Fraud Act (the “ACFA”); violation of 18 Arizona’s civil RICO statutes; negligence per se; and negligent misrepresentation. (Doc. 19 8 at 64–69.) 20 In fall 2024, Plaintiffs received communications from Credit Control and LVNV 21 regarding the aforementioned debts. (Doc. 8 at 42, 63.) Plaintiffs allege they disputed 22 owing any debt, requested the two Defendants cease any further communication, and yet 23 received multiple letters or emails from Defendants in response. (Doc. 8 at 42, 63–64.) 24 Plaintiffs assert Credit Control and LVNV’s communications violated the Fair Debt 25 Collection Practices Act (the “FDCPA”). (Doc. 8 at 42, 64–65.) Plaintiffs also assert the 26 1 LVNV does not affirm or dispute a principal/agent relationship between it and Resurgent. 27 (Doc. 35 at 2 n.2.) However, LVNV does contend that its arguments equally apply to both parties. (Doc. 35 at 2 n.2.) 28 2 Citibank was initially named in the lawsuit; it has since been dismissed from the case. (Doc. 41.) 1 following state law claims against Credit Control and LVNV based on these 2 communications: invasion of privacy, false light, intrusion upon seclusion; respondeat 3 superior liability; violations of the ACFA; violations of Arizona’s civil RICO statutes; 4 negligence per se; and intentional infliction of emotional distress. (Doc. 8 at 46–50, 5 65–70.) 6 In response, each Defendant moved for dismissal pursuant to Federal Rule of Civil 7 Procedure (“Rule”)12(b)(6).3 Plaintiffs then filed a Motion for Leave to File a Second 8 Amended Complaint. (Doc. 51–52.) 9 II. LEGAL STANDARD 10 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 11 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 12 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 13 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 14 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 15 47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court 16 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 18 cause of action, supported by mere conclusory statements, do not suffice.” Id. 19 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 20 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 21 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 22 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 23 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 24 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 25 “probability,” but requires “more than a sheer possibility that a defendant has acted 26 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a
27 3 Credit Control and LVNV specifically invoke Rule 12(b)(6) in their motions to dismiss. (Doc. 16 at 1; Doc. 35 at 1.) U.S. Bank does not specifically reference Rule 12(b)(6) in its 28 motion, however, the motion argues Plaintiffs fail to state “a claim upon which relief can be granted,” (Doc. 25 at 1), which is the gravamen of a Rule 12(b)(6) motion. 1 defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’” 2 Id. (quoting Twombly, 550 U.S. at 557). 3 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations 4 are taken as true and construed in the light most favorable to the nonmoving party. Cousins 5 v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 6 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 7 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 8 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 9 outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States 10 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider 11 materials—documents attached to the complaint, documents incorporated by reference in 12 the complaint, or matters of judicial notice—without converting the motion to dismiss into 13 a motion for summary judgment.” Id. at 908. 14 III. DISCUSSION 15 Plaintiffs bring federal and state law claims against Defendants. For the reasons 16 below, the Court finds that Plaintiffs have failed to state a claim against any Defendant. 17 A. Federal Statutory Claims 18 Plaintiffs bring two federal statutory claims: (1) violation of the FDCPA; and 19 (2) violation of the FCRA. They allege Credit Control and LVNV violated the first, and 20 U.S. Bank violated the second. 21 1. The FDCPA—Credit Control & LVNV 22 The FDCPA prohibits abusive collection tactics by debt collectors. See 15 U.S.C 23 §§ 1692–1692o. Debt collectors are strictly liable for FDCPA violations. Clark v. Cap. 24 Credit & Collection Servs., Inc., 460 F.3d 1162, 1175 (9th Cir. 2006); see Kaiser v. 25 Cascade Cap., LLC, 989 F.3d 1127, 1135 (9th Cir. 2021) (“The FDCPA makes debt 26 collectors strictly liable for misleading and unfair debt collection practices.”). “To prevail 27 on a FDCPA claim, a plaintiff must sufficiently allege that (1) he was the object of 28 collection activity arising from a consumer debt as defined by the FDCPA; (2) the 1 defendant is a debt collector as defined by the FDCPA; and (3) the defendant engaged in 2 an act or omission prohibited by the FDCPA.” Hamilton v. Tiffany & Bosco PA, No. 3 CV-14-00708-PHX-GMS, 2015 WL 11120694, at *2 (D. Ariz. Feb. 10, 2015), aff’d, 713 4 F. App’x 674 (9th Cir. 2018). Plaintiffs have failed to plead enough facts to establish the 5 first prong of this test. 6 “As a threshold matter, a suit brought under the FDCPA must involve a ‘debt’ within 7 the meaning of the statute.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Under 8 the FDCPA, a “debt” is an obligation incurred “primarily for personal, family or household 9 purposes.” 15 U.S.C. § 1692a(5). Thus, the FDCPA “applies to consumer debts and not 10 business loans.” Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir. 1992). When 11 making this threshold determination, “courts may look to the ostensible purpose for which 12 the obligation was entered into, but it is the funds’ actual use that is paramount.” Davis v. 13 Hollins L., 968 F. Supp. 2d 1072, 1077 (E.D. Cal. 2013). 14 (i) Plaintiffs Fail to State a Claim 15 Plaintiffs allege Credit Control and LVNV violated the following FDCPA 16 provisions: § 1692d; § 1692e(2), (5), (7), (8), (10); § 1692f(1); § 1692g(b); § 1692j; and 17 § 1692c(a)(1). (Doc. 8 at 43, 65.) However, Plaintiffs do not establish that the subject debt 18 is covered by the FDCPA; they do not plead any facts explaining the purpose of the debt 19 or how they used the funds. Defendant LVNV highlights this omission in its Motion to 20 Dismiss. (Doc. 35 at 8.) Plaintiffs’ conclusory response does not cure this apt critique: 21 “the type of debt is personal/consumer and can be inferred from the complaint.” (Doc. 42 22 at 3); see Ashcroft, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of 23 action, supported by mere conclusory statements, do not suffice.”) Without any further 24 facts, the Court cannot “determine whether the transaction was primarily consumer or 25 commercial in nature.” Bloom, 972 F.2d at 1068 (citation modified); Harper v. Collection 26 Bureau of Walla Walla, Inc., No. C06-1605-JCC, 2007 WL 4287293, at *4 (W.D. Wash. 27 Dec. 4, 2007) (stating that “[t]he FDCPA does not protect every imaginable debt”). 28 Accordingly, Plaintiffs’ allegations against Credit Control and LVNV fail to state a claim 1 under the FDCPA and are dismissed pursuant to Rule 12(b)(6). 2 (ii) Plaintiffs’ Standing as a Married Couple 3 As stated later in this Order, the Court grants Plaintiffs leave to amend their FDCPA 4 claims against Credit Control and LVNV. However, both Defendants understandably 5 question Complot’s standing to assert FDCPA claims on behalf of an account owned by 6 Tolamaa, and vice versa. (Doc. 16 at 3–5; Doc. 35 at 5–6.) A spouse has standing to assert 7 a claim under the FDCPA in certain contexts. Here, Plaintiffs likely have such standing. 8 Generally, the FDCPA grants a cause of action to “any person” wronged by a debt 9 collector. 15 U.S.C. § 1692k(a) (“Except as otherwise provided by this section, any debt 10 collector who fails to comply with any provision of this subchapter with respect to any 11 person is liable to such person . . . .”); see also Weinrich v. Robert E. Cole, No. CIV. A. 12 00-2588, 2001 WL 4994, at *3 (E.D. Pa. Dec. 22, 2000) (“Federal courts interpret 13 Section 1692k(a) as a broad grant available to persons who are not obligated or allegedly 14 obligated to pay the debt that the defendant sought to collect.”); Bank v. Pentagroup Fin., 15 LLC, No. 08-CV-5293 (JG)(RML), 2009 WL 1606420, at *3 (E.D.N.Y. June 9, 2009) 16 (citing cases). However, “[u]nder certain sections of the FDCPA, a plaintiff must be a 17 ‘consumer’ as defined in the FDCPA to have a cause of action because those sections 18 define violations in terms of conduct directed toward a ‘consumer.’” Weinrich, 2001 WL 19 4994, at *4. The FDCPA defines “consumer” as “any natural person obligated or allegedly 20 obligated to pay any debt.” § 1692a(3). Thus, a consumer can bring any FDCPA cause of 21 action against a debt collector, but a non-consumer can only bring an FDCPA claim under 22 those sections that are generally applicable. See, e.g., Sibersky v. Borah, Goldstein, 23 Altrschuler & Schwartz, P.C., No. 99 CIV. 3227(JGK), 2000 WL 1448635, at *5 (S.D.N.Y. 24 Sep. 28, 2000) (holding that, although the wife was the obligor of the debt, the husband 25 had standing to allege a violation of 29 U.S.C. § 1692e(5) because it is not limited to 26 consumers, but did not have standing to allege violations under § 1692e(11) and 29 U.S.C. 27 § 1692g because these provisions are consumer specific). 28 In Arizona, “debts incurred during a marriage . . . are presumed to be community 1 obligations that are intended to benefit the marital community.” Fleming v. Tanner, 456 2 P.3d 29, 35 (Ariz. Ct. App. 2019); see also Schlaefer v. Fin. Mgmt. Serv., Inc., 996 P.2d 3 745, 748 (Ariz. Ct. App. 2000) (“Generally, all debts incurred during marriage are 4 presumed to be community obligations unless there is clear and convincing evidence to the 5 contrary.”). As such, “[a] creditor can seek payment of the entire community debt from 6 either spouse.” Fleming, 456 P.3d at 36; Samaritan Health Sys. v. Caldwell, 957 P.2d 7 1373, 1376 (Ariz. Ct. App. 1998) (“[C]ommunity debts remain the joint obligations of both 8 parties, and a creditor can look to either spouse for satisfaction of the entire debt.”). 9 Accordingly, here, if the pertinent debts were acquired during Plaintiffs’ marriage, then 10 both Complot and Tolamaa are equally obligated to pay the debt and should be considered 11 consumers under the FDCPA. See Crafton v. L. Firm of Jonathan B. Levine, 957 F. Supp. 12 2d 992, 1001 (E.D. Wis. 2013) (finding that a spouse had standing to bring an FDCPA 13 claim against a debt collector as a consumer, though they were not the named obligor on 14 the debt, because the debt was acquired after the couple married and thus the spouse was 15 obligated to pay the debt because it was considered a community obligation under 16 Wisconsin law); see also Olson v. Armada Corp., No. C20-0429JLR, 2021 WL 4948189, 17 at *1, 6 (W.D. Wash. Oct. 22, 2021) (holding that a debt collector does not violate the 18 FDCPA by bringing a debt collection action against a wife, though the husband was the 19 named obligor, because in Washington all debt incurred in a marriage is considered 20 community debt). 21 Here, Plaintiffs have not alleged whether the pertinent debts were acquired in their 22 marriage. The Court waits to address Plaintiff’s standing further should they address this 23 deficiency in their Second Amended Complaint. 24 2. The FCRA—U.S. Bank 25 Congress enacted the FCRA “to ensure fair and accurate credit reporting, promote 26 efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. 27 v. Burr, 551 U.S. 47, 52 (2007). The FCRA regulates CRAs and those furnishing 28 information to CRAs. 15 U.S.C. § 1681(b); § 1681s-2. A furnisher has a duty to report 1 accurate information to CRAs and investigate consumer disputed information when a CRA 2 notices the furnisher of the dispute. § 1681s-2(a), (b). Plaintiffs allege U.S. Bank, a 3 furnisher, violated § 1681s-2(b). (Doc. 8 at 60.) 4 “The purpose of § 1681s-2(b) is to require furnishers to investigate and verify that 5 they are in fact reporting complete and accurate information to the CRAs after a consumer 6 has objected to the information in his file.” Gorman v. Wolpoff & Abramson, LLP, 584 7 F.3d 1147, 1164 (9th Cir. 2009). After conducting a reasonable investigation, “the 8 furnisher must correct or delete inaccurate information.” Gross v. CitiMortgage, Inc., 33 9 F.4th 1246, 1251 (9th Cir. 2022). However, before a court considers the reasonableness of 10 the furnisher’s procedures, the consumer must make a prima facie showing of inaccuracy 11 in the credit report. See id. “[I]f there is no inaccuracy, then the reasonableness of the 12 investigation is not in play.” Id. 13 In sum, to establish a claim under § 1682s-2(b), a plaintiff must show “(1) a credit 14 reporting inaccuracy existed on plaintiff’s credit report; (2) plaintiff notified the consumer 15 reporting agency that plaintiff disputed the reporting as inaccurate; (3) the consumer 16 reporting agency notified the furnisher of the alleged inaccurate information of the dispute; 17 and (4) the furnisher failed to investigate the inaccuracies or further failed to comply with 18 the requirements in 15 U.S.C. 1681s-2(b)(1)(A)–(E).” Clifford v. LexisNexis Risk Data 19 Mgmt. LLC, No. CV-21-01145-PHX-DJH, 2023 WL 2478864, at *5 (D. Ariz. Mar. 13, 20 2023). U.S. Bank argues Plaintiffs have failed to establish the first prong of this test. The 21 Court agrees. 22 “[I]nformation is inaccurate for purposes of 15 U.S.C. § 1681s-2(b) where it either 23 is ‘patently incorrect’ or is ‘misleading in such a way and to such an extent that it can be 24 expected to adversely affect credit decisions.’” Shaw v. Experian Info. Sols., Inc., 891 F.3d 25 749, 756 (9th Cir. 2018) (quoting Gorman, 584 F.3d at 1163). In evaluating an alleged 26 inaccuracy, the Court views the report as a whole. Sanchez v. JPMorgan Chase Bank NA, 27 643 F. Supp. 3d 1025, 1033–34 (D. Ariz. 2022) (citing cases). Ultimately, a plaintiff must 28 present a “bona fide dispute” of the reported information. Gorman, 584 F.3d at 1163; see 1 also Sanchez, 643 F. Supp. 3d at 1033 (“[I]nformation is only materially misleading when 2 it is ‘open to an interpretation that is directly contradictory to the true information.’” 3 (quoting Gross v. Private Nat’l Mortg. Acceptance Co., 512 F. Supp. 3d 423, 427 4 (E.D.N.Y. 2021))). 5 Here, Plaintiffs allege a litany of inaccuracies. The Court finds that all, except one, 6 fail to establish an inaccuracy. 7 (i) Insufficient Inaccuracy Claims 8 Plaintiff Complot argues U.S. Bank inaccurately reported his debt as past due in 9 July 2023 because it was past due in June 2023. (Doc. 8 at 51.) Plaintiff’s attached report 10 cuts against this claim. The report states Plaintiff made a $30 payment on June 20, 2023. 11 (Doc. 8 at 56.) Plaintiff did not make a payment in July 2023. (Doc. 8 at 56.) Therefore, 12 the payment was not thirty days past due till July 2023. Therefore, the past due information 13 is not inaccurate and this is not a bona fide dispute. 14 Plaintiff argues U.S. Bank inaccurately reported his debt payments as 15 “Current/Terms met” in May and June 2023, though the billing history showed he owed 16 $40 in May and paid zero and owed $97 in June and only paid $30. (Doc. 8 at 56.) 17 Ultimately, Plaintiff argues the report should have stated he was delinquent in May rather 18 than “Current/Terms met.” However, Plaintiff has not pleaded any facts showing it is 19 patently incorrect for the report to say terms were met. Plaintiff did not owe a balance on 20 the U.S. Bank credit card till May 2023. (Doc. 8 at 56.) He then made a payment in June 21 2023. (Doc. 8 at 56.) It is entirely possible the June payment counted towards the $40 22 payment owed in May, so any delinquency was not fully reported till Plaintiff failed to 23 make any payment in July 2023. Without Plaintiff explaining the terms of the debt, or the 24 terms of the payment schedule, the report is not patently incorrect. At most, the report is 25 vague, not inaccurate, because Plaintiff does not dispute the reported billing history. See 26 Sanchez, 643 F. Supp. 3d at 1033 (“When assessing the accuracy of a report, it should be 27 noted that not every misstatement constitutes an inaccuracy.”). Moreover, the information 28 is not misleading because a two-month delay in recognizing a delinquency benefits 1 Plaintiff rather than adversely affecting his credit. See Shaw, 891 F.3d at 756. 2 Accordingly, this is not a bona fide dispute. 3 Plaintiff argues the report is inaccurate because it does not include the date of first 4 delinquency (“DOFD”). (Doc. 8 at 51.) However, there is no evidence that failure to 5 include this information is U.S. Bank’s fault, legally relevant, or sufficient to establish an 6 inaccuracy. See Gadson v. Experian Info. Sols., Inc., No. 2:23-CV-00029-BHH-MHC, 7 2024 WL 3745476, at *7 (D.S.C. July 18, 2024), report and recommendation adopted, No. 8 2:23-CV-29-BHH, 2024 WL 3742464 (D.S.C. Aug. 9, 2024) (“[T]o the extent Plaintiff is 9 asserting that Defendant should have identified on the consumer report the DOFD for each 10 account, Plaintiff has not pointed to any law requiring Defendant to expressly include that 11 information in the report, nor has she shown that its omission makes the report patently 12 incorrect or misleading in such a way and to such an extent that it can be expected to have 13 an adverse effect, particularly where the reported payment history is correct.” (citation 14 modified)). Accordingly, this is not a bona fide dispute. 15 Plaintiff argues U.S. Bank inaccurately reports scheduled payments because the 16 account is “closed.” (Doc. 8 at 52.) However, the scheduled payments are listed in the 17 “Balance Histories” of the report, rather than as upcoming payments due. (Doc. 8 at 56.) 18 Additionally, although U.S. Bank eventually closed the account, it is not inaccurate for it 19 to report the account’s payment history. See Sanchez, 643 F. Supp. 3d at 1036 (finding a 20 closed account’s past due report was part of a “historical pay status” and thus not inaccurate 21 because it did not represent the current state of the account). Accordingly, this is not a 22 bona fide dispute. 23 Plaintiff argues U.S. Bank inaccurately reports a balance due of $2,065 because it 24 charged-off $1,711 from the account. (Doc. 8 at 57.) Plaintiff misunderstands what 25 charged-off means. A charge-off is “the declaration by a creditor (usually a credit card 26 account) that an amount of debt is unlikely to be collected. This occurs when a consumer 27 becomes severely delinquent on a debt.” Williams v. Equifax Info. Servs., LLC, No. ED 28 CV18-02457 JAK (SHKx), 2019 WL 3243737, at*3 n.3 (C.D. Cal. May 6, 2019). “But 1 charging off a debt does not diminish the legal right of the original creditor to collect the 2 full amount of the debt.” Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1298 (11th 3 Cir. 2016). Put simply, “charged off debt is not forgiven.” Leblanc v. Unifund CCR 4 Partners, 601 F.3d 1185, 1188 n.5 (11th Cir. 2010). Thus, it is accurate for U.S. Bank to 5 still report a balance due because it has a right to collect on the debt. See Christian v. 6 Equifax Info Servs., LLC, No. 18-13682, 2020 WL 2087869, at *4 (E.D. Mich. Apr. 30, 7 2020) (explaining that “charging off” an account “does not discharge the debt or eliminate 8 the debtor’s payment obligations on the account”). Accordingly, this is not a bona fide 9 dispute. 10 Finally, Plaintiff argues that U.S. Bank inaccurately reports any balance due because 11 of an alleged “JAN and JUNE 2024 accord and satisfaction.” (Doc. 8 at 57.) Plaintiff does 12 not allege any facts in support of this contention. Therefore, the Court cannot take this as 13 true; this is not a well-pleaded factual allegation. Cousins, 568 F.3d at 1067. In Arizona, 14 an “accord and satisfaction discharges a contractual obligation or cause of action when the 15 parties agree to exchange something of value in resolution of a claim or demand and then 16 perform on that agreement, the accord being the agreement, and the satisfaction its 17 execution or performance.” Abbott v. Banner Health Network, 372 P.3d 933, 937 (Ariz. 18 2016) (quoting Best Choice Fund, LLC v. Low & Childers, P.C., 269 P.3d 678, 686 (Ariz. 19 Ct. App. 2011)). Plaintiff has not asserted any facts demonstrating an agreement with U.S. 20 Bank where something of value was exchanged in resolution of their debt and a subsequent 21 execution of that agreement. Moreover, in seeming concession that he did not enter an 22 accord and satisfaction with U.S. Bank, Plaintiff also states he entered an accord and 23 satisfaction with LVNV who was collecting on the U.S. Bank debt. (Doc. 8 at 64.) 24 Therefore, Plaintiff has not demonstrated an inaccuracy in the report because he has 25 not sufficiently alleged an accord and satisfaction of his debt, and any efforts to do so are 26 inconsistent and illogical. See Gens v. Wachovia Mortg. Corp., No. 10-CV-01073-LHK, 27 2011 WL 1791601, at *5 (N.D. Cal. May 10, 2011), aff’d, 503 F. App’x 533 (9th Cir. 2013) 28 (dismissing with prejudice a complaint that remains “internally inconsistent, conclusory, 1 and insufficient to state a claim”). Accordingly, this is not a bona fide dispute. 2 (ii) Sufficient Inaccuracy Claim 3 Plaintiff argues that U.S. Bank failed to report a $100 payment in January 2024. 4 (Doc. 8 at 58.) Because of this omission, Plaintiff alleges U.S. Bank inaccurately reports 5 the date of last payment as June 2023 and inaccurately calculates the total balance on the 6 debt. (Doc. 8 at 58.) The Court must assume these allegations are true. Cousins, 568 F.3d 7 at 1067. Therefore, Plaintiff has alleged an inaccuracy in U.S. Bank’s report. However, 8 as U.S. Bank points out, the Court is dubious of Plaintiff’s Article III standing as to this 9 inaccuracy. (Doc. 25 at 7–8.) 10 (iii) Plaintiffs’ Standing 11 To have standing, a plaintiff “must have (1) suffered an injury in fact, (2) that is 12 fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 13 redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 14 (2016). As noted, the $100 omission is the only bona fide dispute alleged. Thus, any 15 alleged injuries must be fairly traceable to this inaccuracy. The Court finds Plaintiff has 16 not satisfied this jurisdictional burden. 17 Plaintiff assert’s the following injuries: negative credit rating, restricted access to 18 further credit, restricted credit for mortgage housing, inability to cosign, marital strain, loss 19 of consortium, hedonic damages, sleeplessness, and “nervousness by the constant and 20 looming inaccurate information.” (Doc. 8 at 61.) These damages are not fairly traceable 21 to the alleged $100 discrepancy. “A plaintiff’s injury is ‘fairly traceable’ when there is a 22 ‘substantial likelihood’ that the defendant’s conduct caused the harm.” Baton v. Ledger 23 SAS, 740 F. Supp. 3d 847, 879 (N.D. Cal. 2024) (quoting NRDC v. Texaco Refin. & Mktg., 24 Inc., 2 F.3d 493, 505 (3rd Cir. 1993)). Plaintiff’s alleged injuries are substantially caused 25 by his uncontested, consistent failure to pay off his debt. This is evidenced by his 26 concession that his debt with U.S. Bank was “charged off.” (Doc. 8 at 57.) 27 A charge off “is one of the most adverse factors that can be listed on a credit report.” 28 Artemov v. TransUnion, LLC, NO. 20-CV-1892 (BMC), 2020 WL 5211068, at *4 1 (E.D.N.Y Sep. 1, 2020) (quoting Hanks v. Talbots Classics Nat. Bank, No. C 12-2612 SI, 2 2012 WL 3236323, at *1 n.2 (N.D. Cal. Aug. 6, 2012)). Such designation is considered “a 3 derogatory entry in your credit file—a serious negative event—and it can adversely affect 4 your credit scores and your ability borrow additional funds.” Id. Plaintiff does not dispute 5 the charge off on his account. (Doc. 8 at 57, 59, 60.) Additionally, Plaintiff does not 6 dispute his consistent failure to satisfy scheduled payment deadlines; he even contends U.S. 7 Bank should have marked him delinquent sooner than initially reported. (Doc. 8 at 51.) 8 Thus, the alleged injuries to his credit score, ability to take out future credit, and subsequent 9 emotional distress, are substantially caused by, and fairly traceable to, the foregoing 10 concessions—not the alleged omission of a $100 payment. See Spokeo, 578 U.S. at 342 11 (“[N]ot all [FCRA] inaccuracies cause harm or present any material risk of harm.”). 12 Accordingly, Plaintiffs would have suffered the same alleged injuries regardless of this 13 claimed $100 omission. See Artemov, 2020 WL 5211068, at *7 (granting a motion to 14 dismiss after finding that the plaintiff could not show the causation element of standing for 15 an inaccuracy under the FCRA because “the alleged inaccuracy could not have made a 16 difference: in either case, the denial of credit was going to happen”). 17 For the foregoing reasons, the Court grants U.S. Bank’s Motion to Dismiss because 18 Plaintiff Complot has either failed to state a claim under the FCRA or failed to establish 19 Article III standing for the remaining inaccuracy claim. The Court, therefore, dismisses 20 Plaintiff Complot’s FCRA claims against U.S. Bank with prejudice because he cannot cure 21 the above deficiencies by alleging new facts. The Court now turns to Plaintiff Complot 22 and Tolamaa’s state claims. 23 B. State Claims 24 Plaintiffs bring six state common law and statutory claims against Defendants: 25 (1) invasion of privacy, false light, and intrusion upon seclusion; (2) respondeat superior; 26 (3) violation of the ACFA; (4) violation of Arizona’s civil RICO statutes; (5) negligence 27 per se; and (6) intentional infliction of emotional distress. The first five claims are asserted 28 against all Defendants, but the sixth claim is only brought against Credit Control and 1 LVNV. 2 However, where Plaintiffs’ state claims against U.S. Bank derive from conduct 3 falling under § 1681s-2 of the FCRA, they are preempted. See Reaser v. Monterey Fin. 4 Servs., LLC, No. CV-20-01693-PHX-SPL, 2020 WL 5879523, at *2 (D. Ariz. Oct. 2, 2020) 5 (“FCRA § 1681t(b)(1)(F) provides that § 1681s-2 preempts certain state law 6 claims . . . Most importantly, this Court has held that § 1681t(b)(1)(F) completely preempts 7 a state common law cause of action where the conduct giving rise to the claim falls under 8 § 1681s-2.”); see also Fierros v. Quebedeaux Buick GMC Inc., No. 9 CV-20-00245-TUC-RM (MSA), 2020 WL 8673974, at *2–3 (D. Ariz. Nov. 24, 2020), 10 report and recommendation adopted, 2021 WL 763811 (D. Ariz. Feb. 26, 2021) (holding 11 that “§ 1681t(b)(1)(f) preempts, without exception, all state statutory and common-law 12 claims relating to the responsibilities of furnishers of information”). Plaintiffs allege their 13 state claims arise from U.S. Bank’s failure to identify and remedy alleged inaccuracies in 14 their credit reports. (Doc. 8 at 62, 65–69.) Therefore, these claims are preempted. 15 Accordingly, the Court dismisses with prejudice all of Plaintiffs’ state claims against U.S. 16 Bank. 17 However, the FDCPA does not preempt state law claims. Gonzales v. Arrow Fin. 18 Servs., LLC, 660 F.3d 1055, 1067 (9th Cir. 2011) (“[T]he FDCPA does not pre-empt 19 consistent state action, including cumulative recovery of statutory damages under state 20 law.”). Accordingly, the Court will consider all six state claims brought against Credit 21 Control and LVNV. The Court finds Plaintiffs fail to state a claim for all six counts. 22 1. Invasion of Privacy, False Light, and Intrusion Upon Seclusion 23 Under Arizona law, “[a] claim for intrusion upon seclusion or invasion of privacy 24 requires the Plaintiff to prove: (i) an intentional intrusion, physically or otherwise, upon 25 the solitude or seclusion of another or his private affairs or concerns; and (ii) that the 26 intrusion would be highly offensive to a reasonable person.” Davis v. HDR Inc., 652 F. 27 Supp. 3d 1087, 1097 (D. Ariz. 2023) (citing Hart v. Seven Resorts, Inc., 947 P.2d 846, 853 28 (Ariz. Ct. App. 1997)). Similarly, a claim for false light requires the Plaintiff to prove “the 1 defendant knowingly or recklessly published false information or innuendo about the 2 plaintiff that a reasonable person would find highly offensive.” Hart, 947 P.2d at 854. 3 Plaintiffs allege the foregoing claims against Credit Control and LVNV because 4 they had “no rights to communicate with plaintiffs because the debt was settled and because 5 the plaintiffs notified them with a refusal to pay.” (Doc. 8 at 46, 66.) Specifically, 6 Plaintiffs state Credit Control sent them three letters after they sent a cease-and-desist 7 notification. (Doc. 8 at 42.) Credit Control admits to these communications. (Doc. 16 8 at 7.) As to LVNV, Plaintiffs allege the company sent them two emails after receiving 9 their and desist notification. (Doc. 8 at 64.) Yet, Plaintiffs do not allege the letters, or 10 emails, contained heinous or egregious content; they contend the communications 11 themselves are the source of offense. The Court finds that such contact is not highly 12 offensive to a reasonable person. 13 In a similar context, “[w]ith respect to creditor collection calls, the Restatement 14 specifically states: ‘it is only when the telephone calls are repeated with such persistence 15 and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial 16 burden to his existence, that his privacy is invaded.’” Shupe v. Capital One Bank USA NA, 17 No. CV-16-00571-TUC-JGZ, 2017 WL 11112432, at *2 (D. Ariz. Dec. 22, 2017) (quoting 18 Restatement (Second) of Torts §§ 652A–B (A.L.I. 1977)) (finding “twice daily phone calls, 19 while frustrating, would not amount to a course of hounding so severe as to constitute a 20 substantial burden to a reasonable person’s existence”). Three debt collection letters do 21 not amount to severe hounding. See Pucillo v. Nat’l Credit Sys., Inc., 66 F.4th 634, 640 22 (7th Cir. 2023) (“And while courts have allowed intrusion upon seclusion liability for 23 irritating intrusions, there is nothing inherently bothersome, intrusive, or invasive about a 24 collection letter delivered via U.S. Mail. Indeed, a letter is the means of contact in many 25 if not most of our FDCPA cases.” (citation modified)). Therefore, the Court dismisses 26 these claims against Credit Control and LVNV with prejudice because Plaintiffs cannot 27 cure these deficiencies by alleging new facts. 28 1 2. Respondeat Superior 2 “In Arizona, an employer may be held vicariously liable under the doctrine of 3 respondeat superior for the negligent acts of its employee acting within the course and 4 scope of employment.” Engler v. Gulf Interstate Eng’g, Inc., 258 P.3d 304, 309 (Ariz. Ct. 5 App. 2011), aff’d, 280 P.3d 599 (2012). 6 Plaintiffs allege Credit Control and LVNV allowed employees to “negligently and 7 intentionally prepare, report, and communicate false, fictitious, misleading, and logically 8 inconsistent information.” (Doc. 8 at 47, 67.) Additionally, they allege the two Defendants 9 “negligently, wantonly, and intentionally hired, trained, retained, or supervised 10 incompetent agents, who were allowed, or encouraged to violate the law as was done to 11 Plaintiffs.” (Doc. 8 at 47.) Plaintiffs do not support these conclusory statements with any 12 concrete facts; they have not alleged or established that it is negligent to send a debt 13 collection letter or email. Thus, Plaintiffs have not sufficiently stated a claim for 14 respondeat superior. The claims are dismissed with prejudice because Plaintiffs cannot 15 cure these deficiencies by alleging new facts. 16 3. Arizona Consumer Fraud Act 17 “The elements of an ACFA violation are ‘a false promise or misrepresentation made 18 in connection with the sale or advertisement of merchandise and the hearer’s consequent 19 and proximate injury.’” Rich v. Bank of Am., N.A., 666 F. App’x 635, 638 (9th Cir. 2016) 20 (citing Dunlap v. Jimmy GMC of Tucson, Inc., 666 P.2d 83, 87 (Ariz. Ct. App. 1983)). “An 21 injury occurs when a consumer relies, even unreasonably, on false or misrepresented 22 information.” Rich v. BAC Home Loans Servicing LP, No. CV-11-00511-PHX-SRB, 2013 23 WL 10104612, at *3 (D. Ariz. Dec. 13, 2013) (citing Kuehn v. Stanley, 91 P.3d 346, 351 24 (Ariz. Ct. App. 2004)). “Because ACFA claims involve allegations of fraud, they must be 25 pled with particularity.” Id. 26 Plaintiffs allege Credit Control and LVNV violated the ACFA because they 27 “advertised” false collection obligations “with each debt collection communication.” 28 (Doc. 8 at 48, 68.) Yet, Plaintiffs do not allege any facts suggesting Credit Control or 1 LVNV attempted to sell or advertise any merchandise; they only critique Credit Control’s 2 three debt collection letters, and LVNV’s two emails. (Doc. 8 at 42.) This is insufficient 3 to sustain a claim under the ACFA. See D’Agostino v. Comenity Cap. Bank, No. 4 CV-24-00728-PHX-SPL, 2025 WL 69373, at *8 (D. Ariz. Jan. 10, 2025) (dismissing with 5 prejudice an AFCA claim against a debt collector because “[d]efendants’ alleged 6 conduct—none of which is related to any sale or advertisement of merchandise—is plainly 7 outside of the scope of the statute”). The claims are dismissed with prejudice because 8 Plaintiffs cannot cure these deficiencies by alleging new facts. 9 4. Arizona RICO 10 Arizona’s Organized Crime, Fraud and Terrorism Act, also known as Arizona’s 11 racketeering or “RICO” statute, provides a private cause of action for a “person who 12 sustains reasonably foreseeable injury to his person, business or property by a pattern of 13 racketeering activity.” A.R.S. § 13-2314.04(A). Arizona’s RICO Act defines racketeering 14 as “(1) an act (2) ‘that would be punishable by imprisonment for more than one year under 15 the laws of this state . . . regardless of whether the act is charged or indicted,’ 16 (3) ‘involv[ing]’ any one of a number of enumerated offenses (4) ‘committed for financial 17 gain.’” State, ex rel. Horne v. Campos, 250 P.3d 201, 208 (Ariz. Ct. App. 2011) (alteration 18 in original) (quoting Ariz .Rev .Stat. § 13-2301(D)(4)). Here, the alleged enumerated 19 offense is “[a] scheme or artifice to defraud.” (Doc. 8 at 48); see § 13-2301(D)(4)(b)(xx). 20 Finally, a “pattern of racketeering activity,” as applicable here, means at least two acts of 21 racketeering where (1) “[t]he last act of racketeering activity that is alleged as the basis of 22 the claim occurred within five years of a prior act of racketeering”; (2) “[t]he acts of 23 racketeering . . . were related to each other or to a common external organizing principle”; 24 and (3) “[t]he acts of racketeering were continuous or exhibited the threat of being 25 continuous.” See § 13-2314.04 (T)(3)(a)(i)–(iii). 26 In addition to establishing the foregoing elements, Plaintiffs must state their RICO 27 claim “with particularity” because they allege fraud. See § 13-2314.04 (“If any pleading, 28 motion or other paper includes an averment of fraud or coercion, it shall state these 1 circumstances with particularity with respect to each defendant.”); see also Fed. R. Civ. P. 2 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances 3 constituting fraud or mistake.”). In other words, Plaintiffs must specifically state “the who, 4 what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 5 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Coopper v. Pickett, 137 F.3d 616, 627 (9th 6 Cir. 1997)). 7 Plaintiffs allege Credit Control and LVNV “engaged in a pattern of unlawful 8 activities such as a scheme to defraud” by “seeking payment on discharged debt” “for the 9 purpose of financial gain.” (Doc. 8 at 49, 68–69.) Plaintiffs do not support these 10 conclusory allegations with any substantive facts. The only fact in support of this alleged 11 “scheme to defraud” is the claim that Credit Control and LVNV sought payment on a 12 discharged debt. First, this scant accusation does not satisfy Plaintiffs’ particularity 13 burden; it does not describe the “who, what, when, where, and how” of this alleged scheme. 14 See Vess, 317 F.3d at 1106. Second, Plaintiffs do not allege a continuous pattern of 15 racketeering activity—they only claim Credit Control sent them three letters and LVNV 16 sent them two emails. See Lifeflite Med. Air Transp., Inc. v. Native Am. Air Servs., Inc., 7 17 P.3d 158, 162 (Ariz. Ct. App. 2000) (interpreting “continuous” in 18 § 13-2314.04(T)(3)(a)(iii) “to require that the related predicate acts extend ‘over a 19 substantial period of time,’ i.e., over more than ‘a few weeks or months.’” (quoting H.J. 20 Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989)). Plaintiffs do not allege any facts to 21 show Credit Control and LVNV’s communications persisted longer than a few weeks or 22 months. 23 Finally, even if Plaintiffs’ allegations are true, it is not unlawful for a debt collector 24 to seek payment on a discharged debt. Randolph v. IMBS, Inc., 368 F.3d 726, 729 (7th Cir. 25 2004) (“Courts do not impute to debt collectors other information that may be in creditors’ 26 files—for example, that debt has been paid or was bogus to start with. This is why debt 27 collectors send out notices informing debtors of their entitlement to require verification 28 and to contest claims.”) Thus, Plaintiffs fail to establish that Credit Control or LVNV 1 engaged in an act punishable by imprisonment for more than one year. For these reasons, 2 the Court dismisses these claims with prejudice because Plaintiffs cannot cure these 3 deficiencies by alleging new facts. 4 5. Negligence Per Se 5 “Under Arizona law, negligence per se is not a cause of action separate from 6 common law negligence, but, instead, is a doctrine under which a party can establish the 7 duty and breach elements of a negligence claim based on a violation of a statute that 8 supplies the relevant duty of care.” Estados Unidos Mexicanos v. Diamondback Shooting 9 Sports Inc., No. CV-22-00472-TUC-RM, 2024 WL 1256038, at *14 (D. Ariz. Mar. 25, 10 2024) (citation modified). 11 Plaintiffs allege Credit Control and LVNV “violated a statute created for the public 12 which is negligence per se.” (Doc. 8 at 49, 69.) Plaintiffs do not state which statute. 13 However, Plaintiffs claim Credit Control and LVNV “did this in furtherance of their 14 business as abusive debt collectors who disregard consumer protection laws.” (Doc. 8 15 at 49, 69.) So, the Court presumes Plaintiffs mean the AFCA. Because the Court dismissed 16 Plaintiffs’ AFCA claim against Credit Control and LVNV with prejudice, it likewise 17 dismisses with prejudice their negligence per se claims under this statute because Plaintiffs 18 cannot cure these deficiencies by alleging new facts. 19 6. Intentional Infliction of Emotional Distress 20 Under Arizona law, the “tort of intentional infliction of emotional distress [“IIED”] 21 requires” (1) “proof of extreme and outrageous conduct by the defendant”; 22 (2) “defendant’s intent to cause emotional distress or reckless disregard of the near 23 certainty that such distress will result from defendant’s conduct”; and (3) “resulting severe 24 emotional distress.” Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of 25 Governors, 909 P.2d 486, 495 (Ariz. Ct. App. 1995). “Extreme and outrageous conduct is 26 conduct so outrageous in character, and so extreme in degree, as to go beyond all possible 27 bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized 28 community.” Christakis v. Deitsch, 478 P.3d 241, 245 (Ariz. Ct. App. 2020) (citation 1 modified). 2 Plaintiffs allege Credit Control and LVNV “willfully failed to inquiry [sic] about 3 the representations made to plaintiff in their attempts to collect and intentionally caused 4 mental/physical distress by continuing communication after a refusal to pay.” (Doc. 8 5 at 65.) Moreover, they state “[t]he acts by the defendants are so far out of the realm of 6 reasonable it could only be considered an intentional act to inflict distress on Plaintiffs 7 because the account was legally discharged.” (Doc. 8 at 65.) 8 First, as noted above, it is not unlawful for Credit Control to seek payment on a 9 discharged debt. See Randolph, 368 F.3d at 729. Thus, Credit Control and LVNV did not 10 act unreasonably by attempting to collect on the account. Second, Credit Control’s three 11 debt collection letters, or LVNV’s two emails, do not amount to outrageous conduct. In 12 Midas Muffler Shop v. Ellison, 650 P.2d 496 (Ariz. Ct. App. 1982), the Arizona court of 13 appeals found that debt collector—mistakenly seeking collection on a paid debt—did not 14 engage in extreme and outrageous conduct to permit recovery under IIED when it called 15 six times over a period of three months, and during some of those phone calls, told the 16 plaintiffs they were “no better than lying thieves or sponges” and that they would “sue your 17 asses” or “sue the hell out of you.” Id. at 498, 500. The court explained that the debt 18 collector’s language was not “so atrocious as to be utterly intolerable in a civilized 19 community” because 20 liability clearly does extend to mere insults, indignities, threats, annoyances, 21 petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must 22 necessarily be expected and required to be hardened to a certain amount of 23 rough language, and to occasional acts that are definitely inconsiderate and unkind. 24 Id. (quoting Restatement (Second) of Torts § 46 cmt. d (A.L.I. 1965). Thus, it cannot be 25 said that three letters—without any allegations of profanity or threats of litigation—amount 26 to outrageous conduct. 27 Finally, Plaintiffs’ emotional damages are not severe. Arizona courts have 28 “uniformly insisted that the emotional distress suffered be severe.” Id. at 500–01(emphasis 1 in original). Courts draw a line between conduct causing emotional distress and that 2 causing severe emotional distress. Id. at 501 (citing cases giving examples such as heart 3 attack from nervous exhaustion, fright induced premature birth, writhing in bed in hysteria, 4 and hospitalization for anxiety). In Midas, the court found that the plaintiff’s testimony 5 that phone calls “upset her and made her cry, and that she had difficulty sleeping on several 6 occasions after the calls were made” was not “sufficiently severe to warrant the imposition 7 of liability for [IIED].” Id. The court explained, “[i]it is only where it is extreme that the 8 liability arises. Complete emotional tranquility is seldom attainable in this world, and some 9 degree of transient and trivial emotional distress is a part of the price of living among 10 people.” Id. (quoting Restatement (Second) of Torts § 46 cmt. J (A.L.I. 1965)). 11 Here, Plaintiffs allege they “suffered severe physical and emotional distress as 12 alleged throughout the complaint” and “martial distress by proximity.” (Doc. 8 at 65.) 13 These conclusory statements are ineffective against a Rule 12(b)(6) motion. See Ashcroft, 14 556 U.S. at 678. Thus, Plaintiffs have not alleged any facts demonstrating they have 15 suffered severe emotional distress. Accordingly, the Court dismisses these claims with 16 prejudice because Plaintiffs cannot cure these deficiencies by alleging new facts. 17 IV. LEAVE TO FILE A SUR-REPLY AND LEAVE TO AMEND 18 In response to Defendants’ motions to dismiss, Plaintiffs filed two motions: (1) a 19 Motion for Leave to File a Sur-Reply to LVNV’s reply in support of its Motion to Dismiss; 20 and (2) a Motion for Leave to File a Second Amended Complaint. (Doc. 44; Docs. 51–52.) 21 The Court dismisses the first, and grants in part the second. 22 A. Motion for Leave to File a Sur-Reply 23 “Neither Fed. R. Civ. P. 7 nor the local rules of practice for this District provide for 24 the filing of a sur-reply, and sur-replies are not authorized by any other rules of procedure 25 absent express prior leave of the Court.” Briggs v. Montgomery, No. 26 CV-18-02684-PHX-EJM, 2019 WL 13039282, at *2 (D. Ariz. Mar. 19, 2019). Instead, 27 they are permissible “when a party raises new issues or new evidence in a reply brief.” Id. 28 (quoting ML Liquidating Tr. v. Mayer Hoffman McCann P.C., No. 2:10-CV-02019-RRB, 1 2011 WL 10451619, at *1 (D. Ariz. Mar. 11, 2011)). But they are “generally discouraged” 2 and are permitted only “in the most extraordinary circumstances.” ML Liquidating Tr., 3 2011 WL 10451619, at *1. 4 Here, Plaintiffs allege LVNV raises: (1) new arguments regarding the elements of 5 accord and satisfaction; (2) new evidence of Plaintiffs’ other lawsuits; and (3) new 6 characterization of Plaintiffs’ motives. (Doc. 44 at 1–4.) The Court disagrees. 7 First, Plaintiffs claim their debt was extinguished by an alleged accord and 8 satisfaction in their FAC. (Doc. 8 at 64.) Thus, LVNV’s reply is responsive to this claim 9 and does not raise a novel issue. Second, whether the Plaintiff’s other lawsuits and 10 LVNV’s characterization of Plaintiffs’ motives amount to new evidence or not, the Court 11 has not considered the information in issuing this order so a sur-reply is unnecessary. See 12 Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“[W]here new evidence is 13 presented in a reply to a motion for summary judgment, the district court should not 14 consider the new evidence without giving the non-movant an opportunity to respond.” 15 (citation modified)). Accordingly, the Court dismisses Plaintiffs’ Motion for Leave to File 16 a Sur-Reply. 17 B. Motion for Leave to File a Second Amended Complaint 18 “[A] district court should grant leave to amend even if no request to amend the 19 pleading was made, unless it determines that the pleading could not possibly be cured by 20 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation 21 modified). The Court only grants Plaintiffs leave to amend their FDCPA claims against 22 Credit Control and LVNV. The Court does not grant Plaintiff Complot leave to amend his 23 FCRA claims against U.S. Bank. Additionally, the Court does not grant Plaintiffs leave to 24 amend their state claims against U.S. Bank, Credit Control, and LVNV. The Court 25 dismisses the FCRA claims and all state claims with prejudice as discussed above. 26 Plaintiffs have lodged their Proposed Second Amended Complaint with the Court. 27 (Doc. 52.) However, the proposed amendment does not cure the deficiencies highlighted 28 herein. Therefore, the Court suggests Plaintiffs’ draft a new second amended complaint 1 that is responsive to this order. 2 Plaintiffs’ amended complaint must follow the form detailed in Rule 7.1 of the Local 3 Rules of Civil Procedure. Within thirty (30) days from the date of entry of this Order, 4 Plaintiffs may submit their second amended complaint. Plaintiffs must clearly designate 5 on the face of the document that it is the “Second Amended Complaint.” The amended 6 complaint must be retyped or rewritten in its entirety and may not incorporate any part of 7 the original Complaint by reference. 8 The Court draws attention to the District of Arizona’s Federal Court Advice Only 9 Clinic, Federal Court Advice Only Clinic - Phoenix | District of Arizona | United States 10 District Court (uscourts.gov). The Court also notes the E-Pro Se program which assists 11 litigants with creating a complaint form, Welcome - eProSe (uscourts.gov). Lastly, the 12 Court advises Plaintiff that certain resources for self-represented parties, including a 13 handbook and the Local Rules, are available on the Court’s website, 14 www.azd.uscourts.gov, by following the link “For Those Proceeding Without an 15 Attorney.” 16 V. CONCLUSION 17 Accordingly, 18 IT IS HEREBY ORDERED that Defendant Credit Control’s Motion to Dismiss is 19 granted (Doc. 17). 20 IT IS FURTHER ORDERED that Defendant U.S. Bank’s Motion to Dismiss is 21 granted (Doc. 25). 22 IT IS FURTHER ORDERED that Defendant LVNV’s Motion to Dismiss is 23 granted (Doc. 35). 24 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Sur-Reply 25 is denied (Doc. 44). 26 … 27 … 28 … 1 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File a Second || Amended Complaint is granted in part as to the FDCPA claims against Credit Control and LVNV only (Doc. 51). 4 Dated this 26th day of September, 2025. 5 Se . ~P 6 SO □
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