1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 PATRICK HAGGERTY, Case No.: 3:20-cv-2526-CAB-WVG
11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS [Doc. No. 41] AND DENYING AS MOOT COUNTER 13 SIRY INCORPORATED, dba SIRY MOTION FOR SUMMARY AUTO GROUP; REZA SIRY; and JOHN 14 JUDGMENT [Doc. No. 48] SIRY,
15 Defendants 16 AND RELATED COUNTERCLAIMS. 17
18 On December 20, 2021, a telephonic hearing was held regarding Defendant’s 19 motion to dismiss the amended complaint [Doc. No. 41] and Plaintiff’s counter motion 20 for summary judgment [Doc. No. 48]. Plaintiff Patrick Haggerty appeared pro se. 21 Christopher Holt, Esq., appeared on behalf of Defendant/Counterclaimant Siry, 22 Incorporated dba Siry Auto Group. For the reasons set forth below, the motion to dismiss 23 is GRANTED and the counter motion for summary judgment is DENIED AS MOOT. 24 BACKGROUND 25 On July 10, 2020, Plaintiff signed a contract to purchase a 2014 Toyota Avalon 26 from Defendant for $18,065.26. Under the terms of the contract, Plaintiff was to pay a 27 $4,000 deposit (of which only $3,000 was paid) and would take possession of the car 28 1 while Defendant attempted to assign the contract to a financing company. If the contract 2 could not be assigned, Defendant had the right to cancel it and Plaintiff would be required 3 to immediately return the car and would be liable for the costs of recovery if he did not. 4 When no finance company would accept assignment of the contract, Defendant 5 notified Plaintiff that it was exercising its right to cancel the contract and the car should 6 be returned. Instead of returning the car, Plaintiff sent a letter that asserted debt-related 7 legal theories. After several weeks of letter and phone calls, Plaintiff had still not returned 8 the car or addressed the cancelation of the contract. Defendant hired a towing service to 9 recover the car. 10 Plaintiff filed a complaint asserting that he had a right to keep the vehicle and 11 asserting causes of action for fraudulent misrepresentation; theft of public funds; breach 12 of contract; restraint on commerce and trade; violation of the Fair Debt Collection 13 Practices Act; violation of the Truth In Lending Act; and negligent misrepresentation. 14 Defendant filed a motion for judgment on the pleadings. [Doc. No. 27.] In response, 15 Plaintiff asked for leave to file an amended complaint [Doc. No. 37], which the Court 16 granted on October 18, 2021 [Doc. No. 39]. 17 On October 18, 2021, Plaintiff filed the Amended Complaint. [Doc. No. 40.] On 18 November 9, 2021, Defendant filed a motion to dismiss the Amended Complaint. [Doc. 19 No. 41.] On November 18, 2021, Plaintiff filed an opposition to the motion to dismiss. 20 [Doc. No. 45], which was later withdrawn and replaced by a corrected opposition [Doc. 21 Nos. 51, 52]. On November 30, 2021, Defendants filed a reply. [Doc. No. 47.] On 22 December 1, 2021, Plaintiff filed a Counter Motion for Summary Judgment. [Doc. No. 23 48.] 24 LEGAL STANDARD 25 A motion to dismiss for failure to state a claim should be granted if plaintiff fails to 26 proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 27 v. Twombly (Twombly), 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal (Iqbal), 556 U.S. 28 662, 678 (2009); Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). “A claim has 1 facial plausibility when the plaintiff pleads factual content that allows the court to draw 2 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 3 556 U.S. at 678; Cook, 637 F.3d at 1004; Caviness v. Horizon Cmty. Learning Ctr., Inc., 4 590 F.3d 806, 812 (9th Cir. 2010). Although the plaintiff must provide “more than labels 5 and conclusions, and a formulaic recitation of the elements of a cause of action will not 6 do,” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; see also Cholla Ready Mix, Inc. v. 7 Civish, 382 F.3d 969, 973 (9th Cir. 2004) (“[T]he court is not required to accept legal 8 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 9 be drawn from the facts alleged. Nor is the court required to accept as true allegations 10 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”) 11 (citations and internal quotation marks omitted), “[s]pecific facts are not necessary; the 12 [complaint] need only give the defendant[s] fair notice of what the ... claim is and the 13 grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200 14 (2007) (per curiam) (citations and internal quotation marks omitted); Twombly, 550 U.S. 15 at 555, 127 S.Ct. at 1964. 16 17 DISCUSSION 18 19 A. Equal Credit Opportunity Act. 20 Plaintiff asserts in his first cause of action that Defendant violated the Equal Credit 21 Opportunity Act (“ECOA”)(15 U.S.C. §1691 et seq.) by discriminating against him (15 22 U.S.C. §1691 subd. (a)) and by failing to send notice of an adverse action (15 U.S.C. 23 §1691(d)). There are no fact allegations to support the conclusory allegations that 24 Defendant discriminated against Plaintiff on the basis of race or religion. Moreover, 25 Defendant is not a “creditor” for purposes of the ECOA provision. See Treadway v. 26 Gateway Chevrolet Oldsmobile, Inc., 362 F.3d 971, 979 (7th Cir. 2004). Accordingly, the 27 motion to dismiss the first cause of action is GRANTED WITHOUT LEAVE TO 28 AMEND. 1 B. Truth In Lending Act. 2 Plaintiff’s second cause of action asserts a violation of the Truth in Lending Act 3 (“TILA”), 15 U.S.C. §1601. However, Plaintiff’s conclusory allegations are either 4 contradicted by the actual terms of the Sales Contract1 or are not relevant to the Truth In 5 Lending Act. Accordingly, the motion to dismiss the second cause of action is 6 GRANTED WITHOUT LEAVE TO AMEND. 7 8 C. Federal Fair Debt Collection Practices Act. 9 Plaintiff’s third cause of action asserts violations of the Fair Debt Collection Practices 10 Act (“FDCPA”), 15 U.S.C. §1692 et seq. However, Defendant is not a “debt collector” 11 as defined by the FDCPA, because Defendant is alleged by Plaintiff to have been 12 collecting its own debt. See 15 U.S.C. §1692(4); Henson v. Santander Consumer USA 13 Inc., 137 S.Ct. 1718, 1721-22 (2017). Accordingly, the motion to dismiss the third cause 14 of action is GRANTED WITHOUT LEAVE TO AMEND. 15 16 D. Federal Trade Commission Regulations. 17 Plaintiff’s fourth cause of action alleges Defendant violated a number of FTC 18 regulations found at Title 16, Chapter I, Subchapter D of the Code of Federal 19 Regulations. However, each alleged violation is contradicted by the terms of the Sales 20 Contract. Sprewell, 266 F.3d at 988. Accordingly, the motion to dismiss the fourth cause 21 of action is GRANTED WITHOUT LEAVE TO AMEND.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 PATRICK HAGGERTY, Case No.: 3:20-cv-2526-CAB-WVG
11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS [Doc. No. 41] AND DENYING AS MOOT COUNTER 13 SIRY INCORPORATED, dba SIRY MOTION FOR SUMMARY AUTO GROUP; REZA SIRY; and JOHN 14 JUDGMENT [Doc. No. 48] SIRY,
15 Defendants 16 AND RELATED COUNTERCLAIMS. 17
18 On December 20, 2021, a telephonic hearing was held regarding Defendant’s 19 motion to dismiss the amended complaint [Doc. No. 41] and Plaintiff’s counter motion 20 for summary judgment [Doc. No. 48]. Plaintiff Patrick Haggerty appeared pro se. 21 Christopher Holt, Esq., appeared on behalf of Defendant/Counterclaimant Siry, 22 Incorporated dba Siry Auto Group. For the reasons set forth below, the motion to dismiss 23 is GRANTED and the counter motion for summary judgment is DENIED AS MOOT. 24 BACKGROUND 25 On July 10, 2020, Plaintiff signed a contract to purchase a 2014 Toyota Avalon 26 from Defendant for $18,065.26. Under the terms of the contract, Plaintiff was to pay a 27 $4,000 deposit (of which only $3,000 was paid) and would take possession of the car 28 1 while Defendant attempted to assign the contract to a financing company. If the contract 2 could not be assigned, Defendant had the right to cancel it and Plaintiff would be required 3 to immediately return the car and would be liable for the costs of recovery if he did not. 4 When no finance company would accept assignment of the contract, Defendant 5 notified Plaintiff that it was exercising its right to cancel the contract and the car should 6 be returned. Instead of returning the car, Plaintiff sent a letter that asserted debt-related 7 legal theories. After several weeks of letter and phone calls, Plaintiff had still not returned 8 the car or addressed the cancelation of the contract. Defendant hired a towing service to 9 recover the car. 10 Plaintiff filed a complaint asserting that he had a right to keep the vehicle and 11 asserting causes of action for fraudulent misrepresentation; theft of public funds; breach 12 of contract; restraint on commerce and trade; violation of the Fair Debt Collection 13 Practices Act; violation of the Truth In Lending Act; and negligent misrepresentation. 14 Defendant filed a motion for judgment on the pleadings. [Doc. No. 27.] In response, 15 Plaintiff asked for leave to file an amended complaint [Doc. No. 37], which the Court 16 granted on October 18, 2021 [Doc. No. 39]. 17 On October 18, 2021, Plaintiff filed the Amended Complaint. [Doc. No. 40.] On 18 November 9, 2021, Defendant filed a motion to dismiss the Amended Complaint. [Doc. 19 No. 41.] On November 18, 2021, Plaintiff filed an opposition to the motion to dismiss. 20 [Doc. No. 45], which was later withdrawn and replaced by a corrected opposition [Doc. 21 Nos. 51, 52]. On November 30, 2021, Defendants filed a reply. [Doc. No. 47.] On 22 December 1, 2021, Plaintiff filed a Counter Motion for Summary Judgment. [Doc. No. 23 48.] 24 LEGAL STANDARD 25 A motion to dismiss for failure to state a claim should be granted if plaintiff fails to 26 proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 27 v. Twombly (Twombly), 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal (Iqbal), 556 U.S. 28 662, 678 (2009); Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). “A claim has 1 facial plausibility when the plaintiff pleads factual content that allows the court to draw 2 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 3 556 U.S. at 678; Cook, 637 F.3d at 1004; Caviness v. Horizon Cmty. Learning Ctr., Inc., 4 590 F.3d 806, 812 (9th Cir. 2010). Although the plaintiff must provide “more than labels 5 and conclusions, and a formulaic recitation of the elements of a cause of action will not 6 do,” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; see also Cholla Ready Mix, Inc. v. 7 Civish, 382 F.3d 969, 973 (9th Cir. 2004) (“[T]he court is not required to accept legal 8 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 9 be drawn from the facts alleged. Nor is the court required to accept as true allegations 10 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”) 11 (citations and internal quotation marks omitted), “[s]pecific facts are not necessary; the 12 [complaint] need only give the defendant[s] fair notice of what the ... claim is and the 13 grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200 14 (2007) (per curiam) (citations and internal quotation marks omitted); Twombly, 550 U.S. 15 at 555, 127 S.Ct. at 1964. 16 17 DISCUSSION 18 19 A. Equal Credit Opportunity Act. 20 Plaintiff asserts in his first cause of action that Defendant violated the Equal Credit 21 Opportunity Act (“ECOA”)(15 U.S.C. §1691 et seq.) by discriminating against him (15 22 U.S.C. §1691 subd. (a)) and by failing to send notice of an adverse action (15 U.S.C. 23 §1691(d)). There are no fact allegations to support the conclusory allegations that 24 Defendant discriminated against Plaintiff on the basis of race or religion. Moreover, 25 Defendant is not a “creditor” for purposes of the ECOA provision. See Treadway v. 26 Gateway Chevrolet Oldsmobile, Inc., 362 F.3d 971, 979 (7th Cir. 2004). Accordingly, the 27 motion to dismiss the first cause of action is GRANTED WITHOUT LEAVE TO 28 AMEND. 1 B. Truth In Lending Act. 2 Plaintiff’s second cause of action asserts a violation of the Truth in Lending Act 3 (“TILA”), 15 U.S.C. §1601. However, Plaintiff’s conclusory allegations are either 4 contradicted by the actual terms of the Sales Contract1 or are not relevant to the Truth In 5 Lending Act. Accordingly, the motion to dismiss the second cause of action is 6 GRANTED WITHOUT LEAVE TO AMEND. 7 8 C. Federal Fair Debt Collection Practices Act. 9 Plaintiff’s third cause of action asserts violations of the Fair Debt Collection Practices 10 Act (“FDCPA”), 15 U.S.C. §1692 et seq. However, Defendant is not a “debt collector” 11 as defined by the FDCPA, because Defendant is alleged by Plaintiff to have been 12 collecting its own debt. See 15 U.S.C. §1692(4); Henson v. Santander Consumer USA 13 Inc., 137 S.Ct. 1718, 1721-22 (2017). Accordingly, the motion to dismiss the third cause 14 of action is GRANTED WITHOUT LEAVE TO AMEND. 15 16 D. Federal Trade Commission Regulations. 17 Plaintiff’s fourth cause of action alleges Defendant violated a number of FTC 18 regulations found at Title 16, Chapter I, Subchapter D of the Code of Federal 19 Regulations. However, each alleged violation is contradicted by the terms of the Sales 20 Contract. Sprewell, 266 F.3d at 988. Accordingly, the motion to dismiss the fourth cause 21 of action is GRANTED WITHOUT LEAVE TO AMEND. 22 / / / / / 23 / / / / / 24 / / / / / 25 26 27 1 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)(Documents whose contents are alleged in a complaint and whose authenticity is not questioned by either party may be considered by 28 1 E. State law claims. 2 Having dismissed Plaintiff’s federal claims, the Court’s “decision of whether to 3 exercise supplemental jurisdiction over the remaining state law claims ‘is purely 4 discretionary.’” Couture v. Wells Fargo Bank, N.A., No. 11-CV-1096-IEG (CAB), 2011 5 WL 3489955, at *4 (S.D. Cal. Aug. 9, 2011) (quoting Carlsbad Tech., Inc. v. HIF Bio, Inc., 6 556 U.S. 635, 639 (2009)); see also Holt v. First Franklin Fin. Corp., No. C 10-5929 SBA, 7 2011 WL 4595195, *4 (N.D. Cal. Sept. 30, 2011) (“When the federal claims that served as 8 the basis for jurisdiction are eliminated, either through dismissal by the court or by a 9 plaintiff amending his or her complaint, federal courts may decline to assert supplemental 10 jurisdiction over the remaining state law causes of action.”) (citing 28 U.S.C. § 1367(c)(3)). 11 Here, because the Court is dismissing all the federal claims in the earlier stages of 12 the litigation, it is more appropriate to decline supplemental jurisdiction over the state law 13 claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (holding that 14 “when the federal-law claims have dropped out of the lawsuit in its early stages and only 15 state-law claims remain, the federal court should decline the exercise of jurisdiction by 16 dismissing the case without prejudice”); see also Sanford v. MemberWorks, Inc., 625 F.3d 17 550, 561 (9th Cir. 2010) (“A district court ‘may decline to exercise supplemental 18 jurisdiction’ if it ‘has dismissed all claims over which it has original jurisdiction.’”) 19 (quoting 28 U.S.C. § 1367(c)(3)). Plaintiff remains free to pursue any appropriate state 20 law claims for relief in state court, as does Defendant/Counterclaimant. 21 22 CONCLUSION 23 24 For the reasons set forth above, it is hereby ORDERED: 25 1. Defendant’s motion to dismiss the federal claims (first through fourth causes of 26 action) is GRANTED WITHOUT LEAVE TO AMEND; 27 28 1 2. Because the Court declines supplemental jurisdiction over any remaining state 2 law claims, those claims are DISMISSED WITHOUT PREJUDICE to 3 Plaintiff's ability to pursue them in state court; 4 3. The Counter motion for summary judgment is DENIED AS MOOT; 5 4. Defendant/Counterclaimant’s Counter Claim is also DISMISSED WITHOUT 6 PREJUDICE to being pursued in state court; 7 5. The Clerk of Court shall CLOSE the case. 8 IT IS SO ORDERED. 9 || Dated: December 20, 2021 € ZL 10 Hon. Cathy Ann Bencivengo 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28