1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHELLE GONZALEZ, an individual No. 2:19-cv-02155-MCE-CKD person, on behalf of herself and all 12 others similarly situated, 13 Plaintiff, MEMORANDUM AND ORDER 14 v. 15 JAMES BRYANT, an individual, 16 Defendant. 17 18 Through this action, Michelle Gonzalez (“Plaintiff”) seeks to recover damages 19 from James Bryant (“Defendant”). Plaintiff’s First Amended Complaint (“FAC”) alleges 20 two causes of action under state law. ECF No. 25. Presently before the Court is 21 Defendant’s Motion to Dismiss. ECF No. 27. Plaintiff timely opposed the Motion. 22 Opp’n, ECF No. 31.1 For the reasons that follow, Defendant’s Motion is GRANTED. 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. ECF No. 28; see E.D. Cal. Local Rule 230(g). 1 BACKGROUND 2 3 The National Litigation Law Group (“NLLG”) was originally formed under the laws 4 of Oklahoma as a professional limited liability company (“PLLC”) of which Bryant was the 5 sole member. ECF No. 6-1 (“Leveroni Decl.”), Ex. A. On July 10, 2017, Bryant and a 6 previous defendant who is no longer party to this action, Lance Conn (“Conn”), decided 7 to domesticate NLLG in the District of Columbia (“D.C.”) and formed NLLG DC, PLLC 8 under the laws of D.C. Leveroni Decl., Ex. B. Bryant and Conn subsequently merged 9 the Oklahoma and D.C. entities to create NLLG, PLLC. Leveroni Decl., Exs. C, D. On 10 September 22, 2017, again under the laws of D.C., Bryant and Conn converted NLLG, 11 PLLC into a limited liability partnership (“LLP”) named NLLG, LLP. Leveroni Decl., Ex. 12 E. The following February, Bryant and Conn filed an application in California to register 13 NLLG, LLP as a foreign LLP and received the certificate of filing in December 2018 from 14 the Secretary of State. Leveroni Decl., Ex. G. 15 According to Plaintiff’s FAC, on May 21, 2018, Defendant Bryant personally 16 solicited Plaintiff and putative class members to retain NLLG for legal representation in 17 future debt collection lawsuits. FAC, ¶ 14. Plaintiff signed a retainer agreement, and, 18 the following year, Wells Fargo Bank N.A. and American Express National Bank 19 separately filed two debt collection actions against Plaintiff. FAC, ¶¶ 3, 21. In response, 20 Defendant allegedly emailed two letters to Plaintiff stating that the firm was qualified to 21 represent her in both actions, but she needed to complete the following requirements: 22 (1) advance a “first appearance fee” in order for NLLG to make a first appearance on 23 Plaintiff’s behalf; (2) complete and transmit a client financial statement; and (3) execute a 24 limited power of attorney authorizing NLLG to settle the actions on Plaintiff’s behalf 25 without her further knowledge or consent. Id. Plaintiff complied with all three 26 requirements. Id. 27 /// 28 /// 1 STANDARD 2 3 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 4 Procedure (“FRCP”) 12(b)(6), all allegations of material fact must be accepted as true 5 and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. 6 Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and 7 plain statement of the claim showing that the pleader is entitled to relief’ in order to ‘give 8 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 10 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss 11 does not require detailed factual allegations. However, “a plaintiff’s obligation to provide 12 the grounds of his entitlement to relief requires more than labels and conclusions, and a 13 formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations 14 and quotation marks omitted). A court is not required to accept as true a “legal 15 conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 16 (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right 17 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 18 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 19 that the pleading must contain something more than “a statement of facts that merely 20 creates a suspicion [of] a legally cognizable right of action”)). 21 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 22 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 23 quotation marks omitted). Thus, “[w]ithout some factual allegation in the complaint, it is 24 hard to see how a claimant could satisfy the requirements of providing not only ‘fair 25 notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 26 Wright & Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a 27 claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not 28 nudged their claims across the line from conceivable to plausible, their complaint must 1 be dismissed.” Id. However, “[a] well-pleaded complaint may proceed even if it strikes a 2 savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very 3 remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 4 (1974)). 5 A court granting a motion to dismiss a complaint must then decide whether to 6 grant leave to amend. Leave to amend should be “freely given” where there is no 7 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 8 to the opposing party by virtue of allowance of the amendment, [or] futility of the 9 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 10 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 11 be considered when deciding whether to grant leave to amend). Not all of these factors 12 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 13 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 14 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 15 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 16 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 17 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 18 1989) (“Leave need not be granted where the amendment of the complaint . . . 19 constitutes an exercise in futility . . . .”)). 20 21 ANALYSIS 22 23 A.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHELLE GONZALEZ, an individual No. 2:19-cv-02155-MCE-CKD person, on behalf of herself and all 12 others similarly situated, 13 Plaintiff, MEMORANDUM AND ORDER 14 v. 15 JAMES BRYANT, an individual, 16 Defendant. 17 18 Through this action, Michelle Gonzalez (“Plaintiff”) seeks to recover damages 19 from James Bryant (“Defendant”). Plaintiff’s First Amended Complaint (“FAC”) alleges 20 two causes of action under state law. ECF No. 25. Presently before the Court is 21 Defendant’s Motion to Dismiss. ECF No. 27. Plaintiff timely opposed the Motion. 22 Opp’n, ECF No. 31.1 For the reasons that follow, Defendant’s Motion is GRANTED. 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. ECF No. 28; see E.D. Cal. Local Rule 230(g). 1 BACKGROUND 2 3 The National Litigation Law Group (“NLLG”) was originally formed under the laws 4 of Oklahoma as a professional limited liability company (“PLLC”) of which Bryant was the 5 sole member. ECF No. 6-1 (“Leveroni Decl.”), Ex. A. On July 10, 2017, Bryant and a 6 previous defendant who is no longer party to this action, Lance Conn (“Conn”), decided 7 to domesticate NLLG in the District of Columbia (“D.C.”) and formed NLLG DC, PLLC 8 under the laws of D.C. Leveroni Decl., Ex. B. Bryant and Conn subsequently merged 9 the Oklahoma and D.C. entities to create NLLG, PLLC. Leveroni Decl., Exs. C, D. On 10 September 22, 2017, again under the laws of D.C., Bryant and Conn converted NLLG, 11 PLLC into a limited liability partnership (“LLP”) named NLLG, LLP. Leveroni Decl., Ex. 12 E. The following February, Bryant and Conn filed an application in California to register 13 NLLG, LLP as a foreign LLP and received the certificate of filing in December 2018 from 14 the Secretary of State. Leveroni Decl., Ex. G. 15 According to Plaintiff’s FAC, on May 21, 2018, Defendant Bryant personally 16 solicited Plaintiff and putative class members to retain NLLG for legal representation in 17 future debt collection lawsuits. FAC, ¶ 14. Plaintiff signed a retainer agreement, and, 18 the following year, Wells Fargo Bank N.A. and American Express National Bank 19 separately filed two debt collection actions against Plaintiff. FAC, ¶¶ 3, 21. In response, 20 Defendant allegedly emailed two letters to Plaintiff stating that the firm was qualified to 21 represent her in both actions, but she needed to complete the following requirements: 22 (1) advance a “first appearance fee” in order for NLLG to make a first appearance on 23 Plaintiff’s behalf; (2) complete and transmit a client financial statement; and (3) execute a 24 limited power of attorney authorizing NLLG to settle the actions on Plaintiff’s behalf 25 without her further knowledge or consent. Id. Plaintiff complied with all three 26 requirements. Id. 27 /// 28 /// 1 STANDARD 2 3 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 4 Procedure (“FRCP”) 12(b)(6), all allegations of material fact must be accepted as true 5 and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. 6 Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and 7 plain statement of the claim showing that the pleader is entitled to relief’ in order to ‘give 8 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 10 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss 11 does not require detailed factual allegations. However, “a plaintiff’s obligation to provide 12 the grounds of his entitlement to relief requires more than labels and conclusions, and a 13 formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations 14 and quotation marks omitted). A court is not required to accept as true a “legal 15 conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 16 (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right 17 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 18 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 19 that the pleading must contain something more than “a statement of facts that merely 20 creates a suspicion [of] a legally cognizable right of action”)). 21 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 22 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 23 quotation marks omitted). Thus, “[w]ithout some factual allegation in the complaint, it is 24 hard to see how a claimant could satisfy the requirements of providing not only ‘fair 25 notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 26 Wright & Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a 27 claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not 28 nudged their claims across the line from conceivable to plausible, their complaint must 1 be dismissed.” Id. However, “[a] well-pleaded complaint may proceed even if it strikes a 2 savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very 3 remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 4 (1974)). 5 A court granting a motion to dismiss a complaint must then decide whether to 6 grant leave to amend. Leave to amend should be “freely given” where there is no 7 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 8 to the opposing party by virtue of allowance of the amendment, [or] futility of the 9 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 10 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 11 be considered when deciding whether to grant leave to amend). Not all of these factors 12 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 13 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 14 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 15 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 16 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 17 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 18 1989) (“Leave need not be granted where the amendment of the complaint . . . 19 constitutes an exercise in futility . . . .”)). 20 21 ANALYSIS 22 23 A. Claim One: Violation of the California Anti-Phishing Act (“APA”) 24 Defendant seeks dismissal of Plaintiffs’ APA cause of action for failure to state a 25 claim. The APA makes it unlawful for “any person, by means of a Web page, electronic 26 mail message, or otherwise through use of the Internet, to solicit, request, or take any 27 action to induce another person to provide identifying information by representing itself 28 to be a business without the authority or approval of the business.” Cal. Bus. & Prof. 1 Code § 22948.2. “Identifying information” includes sensitive information such as social 2 security numbers, bank account numbers, credit card numbers, account passwords, or 3 any other “information that can be used to access an individual's financial accounts or to 4 obtain goods or services.” Id. § 22948.1(b). Cases discussing the APA are limited, but 5 claims defeating motions to dismiss appear to follow the plain language of the statute, 6 and involve such circumstances, by way of example, as when a defendant induces the 7 provision of account credentials by falsely representing itself as a representative of a 8 plaintiff’s financial institution. See, e.g., Cottle v. Plaid Inc., No. 20-CV-03056-DMR, 9 2021 WL 1721177, at *20 (N.D. Cal. Apr. 30, 2021); Wesch v. Yodlee, Inc., No. 20-CV- 10 05991-SK, 2021 WL 1399291, at *8 (N.D. Cal. Feb. 16, 2021). 11 Here, the facts alleged do not support a phishing cause of action because Plaintiff 12 fails to demonstrate how Bryant represented himself as NLLG without the authority or 13 approval of that business. Cf. Cal. Bus. & Prof. Code § 22948.2. As this Court has 14 already held, NLLG was a validly formed legal entity of which Bryant was a member. 15 ECF No. 8, at 6. Accordingly, Plaintiff cannot state a claim under the APA and this 16 cause of action is DISMISSED without leave to amend. 17 B. Claim Two: Violation of the California Unfair Competition Law 18 Defendant likewise seeks dismissal of Unfair Competition Law (“UCL”) claim. See 19 California Bus. & Prof. Code §§ 17200 et seq. The UCL prohibits parties from engaging 20 in an “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code 21 § 17200. To demonstrate a claim under the UCL, a plaintiff “must allege that she has 22 suffered (1) economic injury (2) as a result of the alleged unfair business practice.” 23 Svenson v. Google Inc., 65 F. Supp. 3d 717, 730 (N.D. Cal. 2014). Any unfair business 24 practice alleged by Plaintiff in the instant matter appears tethered to its “fictitious law 25 firm” theory — a claim this Court has already rejected. ECF No. 8, at 6. Because 26 Plaintiff fails to plead any facts to otherwise substantiate this cause of action, Plaintiff’s 27 second cause of action is also DISMISSED without leave to amend. 28 /// 1 CONCLUSION 2 3 In consideration of the foregoing, Defendant’s Motion to Dismiss (ECF No. 27) is 4 | GRANTED. Plaintiff has previously received leave to amend these claims, and the Court 5 || determines that additional amendment would be futile. Accordingly, these claims are 6 || DISMISSED with no further leave to amend, and the Clerk of Court is directed to close 7 | this case. 8 IT IS SO ORDERED. 9 10 || Dated: August 17, 2021 " Olt, AK, 12 MORRISON C. ENGLANE © ZY 43 SENIOR UNITED STATES DISTRICT JUDGE
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