Price v. HOA Collections LLC

• Court: District Court, D. Nevada
• Decided: October 30, 2020
• Docket: 2:20-cv-01942
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 BOBBIE PRICE, Case No.: 2:20-cv-01942-APG-NJK

8 Plaintiff(s), ORDER 9 v. [Docket No. 1] 10 HOA COLLECTIONS, LLC, 11 Defendant(s). 12 Plaintiff is proceeding in this action pro se and has requested authority under 28. U.S.C. § 13 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted a complaint. Docket 14 No. 1-1. 15 I. In Forma Pauperis Application 16 Plaintiff has submitted the affidavit required by § 1915(a). Docket No. 1. Plaintiff has 17 shown an inability to prepay fees and costs or give security for them. Accordingly, Plaintiff’s 18 request to proceed in forma pauperis under § 1915(a) will be granted. 19 II. Screening Complaint 20 Upon granting an application to proceed in forma pauperis, courts screen the complaint. 21 28 U.S.C. § 1915(e). Section 1915(e) permits courts to dismiss a case if the action is legally 22 “frivolous or malicious,” the complaint fails to state a claim upon which relief may be granted, or 23 the plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 24 § 1915(e)(2). When a court dismisses a complaint under § 1915, the plaintiff should be given 25 leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from 26 the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United 27 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 28 1 Rule 12(b)(6)1 provides for dismissal of a complaint for failure to state a claim upon which 2 relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 3 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must 4 provide a short and plain statement of the claim showing that the pleader is entitled to relief. 5 Fed.R.Civ.P. 8(a)(2); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although 6 Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” 7 or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 8 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true 9 all well-pled factual allegations contained in the complaint, but the same requirement does not 10 apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of 11 action, supported only by conclusory allegations, do not suffice. Id. at 678. Additionally, where 12 the claims in the complaint have not crossed the line from conceivable to plausible, the complaint 13 should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint are held to less 14 stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 15 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required after 16 Twombly and Iqbal). “However, a liberal interpretation of a civil rights complaint may not supply 17 essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of 18 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 Here, Plaintiff’s allegations fail to state a claim upon which relief can be granted. Plaintiff 20 alleges that Defendant violated the Fair Debt Collection Practices Act (“FDCPA”). See Docket 21 No. 1-1 at 1. To establish a cause of action under the FDCPA, Plaintiff must allege sufficient facts 22 to show that she is a “consumer” as defined in the FDCPA; the alleged debt arises out of a 23 transaction entered for personal purposes; Defendant is a “debt collector” as defined in the 24 FDCPA; and Defendant violated one of the provisions enumerated in the FDCPA. Wheeler v. 25 Premiere Credit of North America, LLC, 80 F. Supp. 3d 1108, 1112 (S.D. Cal. 2015) (citing Turner 26 v. Cook, 362 F.3d 1219, 1226–27 (9th Cir. 2004)). While Plaintiff alleges that Defendant sent her 27 1 Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil 28 Procedure. 1 a debt-collection letter for a debt that she does not owe, see Docket No. 1-1 at 1, Plaintiff does not 2 allege sufficient facts to show whether the alleged debt arises out of a transaction entered for 3 personal purposes. Plaintiff also fails to allege what statutory provision Defendant violated. Thus, 4 Plaintiff has failed to allege sufficient facts to state a claim under the FDCPA. 5 Plaintiff also alleges a claim under the Racketeer Influenced and Corrupt Organizations 6 Act (“RICO”). See id. at 1–2. “The elements of a civil RICO claim are as follows: (1) conduct 7 (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) 8 (5) causing injury to plaintiff’s business or property.” Living Designs, Inc. v. E.I. Dupont de 9 Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005). In the instant case, Plaintiff alleges that 10 Defendant, as a corporate entity, unlawfully threatened to take her primary home for profit. See 11 Docket No. 1-1 at 1–2. However, Plaintiff alleges no facts to show a pattern of racketeering 12 activity. As a result, Plaintiff has failed to allege sufficient facts to state a claim under RICO. 13 III. Conclusion 14 Accordingly, IT IS ORDERED that: 15 1. Plaintiff’s request to proceed in forma pauperis is hereby GRANTED. Plaintiff 16 shall not be required to pay the filing fee. 17 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 18 prepayment of any additional fees or costs or the giving of a security therefor. This 19 Order granting leave to proceed in forma pauperis shall not extend to the issuance 20 and/or service of subpoenas at government expense. 21 3. The Complaint is DISMISSED with leave to amend. Plaintiff will have until 22 November 30, 2020, to file an Amended Complaint, if the noted deficiencies can 23 be corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that 24 the Court cannot refer to a prior pleading (i.e., the original Complaint) in order to 25 make the Amended Complaint complete. This is because, as a general rule, an 26 Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) 27 requires that an Amended Complaint be complete in itself without reference to any 28 prior pleading. Once a plaintiff files an Amended Complaint, the original 1 Complaint no longer serves any function in the case. Therefore, in an Amended 2 Complaint, as in an original Complaint, each claim and the involvement of each 3 Defendant must be sufficiently alleged. 4 4. Failure to comply with this order will result in the recommended dismissal of 5 this case. 6 IT IS SO ORDERED. 7 Dated: October 30, 2020 A.

2 JInited Sta agistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28