1 2 3 4 5 6 7 10 11 PRAKASH NARAYAN, No. 2:19-cv-00466-TLN-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 COUNTY OF SACRAMENTO, et al., AND ORDER 15 Defendants. (ECF Nos. 54, 65, 66) 16 17 Presently before the court is defendant City of Sacramento’s (the City) motion to dismiss 18 brought pursuant to Rule 12(b)(6). (ECF No. 54.) Plaintiff filed a motion for an extension of 19 time to file an opposition, which the court granted in part, allowing plaintiff until February 26, 20 2020, to file his opposition. (ECF Nos. 62, 63.) Plaintiff did not file an opposition by this 21 deadline, but on March 18, 2020 filed a motion to electronically file another motion for an 22 extension of time. (ECF Nos. 65, 66.) For the following reasons, the court RECOMMENDS 23 GRANTING defendant’s motion and dismissing plaintiff’s complaint against the City. The court 24 also DENIES plaintiff’s motions to file electronically and for another extension. 26 Pro se plaintiff Prakash Narayan filed the present suit against Wells Fargo, Sacramento 27 County, the City, and related entities. (ECF No. 12.) Although somewhat vague, plaintiff’s First 28 Amended Complaint alleges that the City violated the Fair Debt Collect Practices Act (FDCPA) 1 by attempting to collect allegedly invalid utilities debt from him. (See id. at 1-2.) Plaintiff also 2 includes in his complaint two unnumbered counts: public corruption and tampering. (Id. at 5, 8.) 3 The count of public corruption, as against the City, appears to be premised on allegations of 4 discriminatory treatment when Narayan was a City employee. (Id. at 5-6.) Plaintiff’s tampering 5 cause of action does not appear to be asserted against the City, as it contains no factual allegations 6 against that defendant. (See id. at 8-9.) 7 The City moves to dismiss plaintiff’s compliant against it for failure to state a claim upon 8 which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 54.) 10 Legal standard 11 In considering a motion to dismiss for failure to state a claim upon which relief can be 12 granted, the court must accept as true the allegations of the complaint in question, Erickson v. 13 Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the 14 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678. 24 In ruling on a motion to dismiss pursuant to Rule 12(b), the court “may generally consider 25 only allegations contained in the pleadings, exhibits attached to the complaint, and matters 26 properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 27 895, 899 (9th Cir. 2007). Defendant has requested this court take judicial notice of certain 28 documents. (ECF No. 54-2.) That request is granted. 1 Plaintiff’s FDCPA causes of action do not state a claim against the City. 2 Plaintiff alleges five counts premised on the FDCPA. Each cause of action lists a separate 3 provision of the FDCPA. (ECF No. 12 at 1-4.) 4 Congress passed the FDCPA in 1977 with the stated purposes of eliminating “abusive 5 debt collection practices,” ensuring “that those debt collectors who refrain from using abusive 6 debt collection practices are not competitively disadvantaged,” and promoting “consistent State 7 action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). In furtherance 8 of these purposes, the FDCPA bans a variety of debt-collection practices and allows individuals 9 to sue offending debt collectors. 10 “Debt collector” as used in the FDCPA,
11 means any person who uses any instrumentality of interstate commerce or the 12 mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed 13 or due or asserted to be owed or due another.
14 15 U.S.C. § 1692(a)(6) (emphasis added). 15 Plaintiff’s complaint alleges that the City violated five FDCPA provisions. (ECF No. 12.) 16 Four of these provisions prohibit “debt collectors” from certain activities. See 15 U.S.C. § 1692f 17 (“A debt collector may not use unfair or unconscionable means to collect or attempt to collect any 18 debt”); 15 U.S.C. § 1692e (“A debt collector may not use any false, deceptive, or misleading 19 representation or means in connection with the collection of any debt”); 15 U.S.C. § 1692d (“A 20 debt collector may not engage in any conduct the natural consequence of which is to harass, 21 oppress, or abuse any person in connection with the collection of a debt”); 15 U.S.C. § 1692g 22 (creating requirements for debt collectors to follow when validating debts). 23 Courts have consistently held that creditors, even assignees from the original creditor, are 24 not “debt collectors” under the FDCPA. Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1209 25 (9th Cir. 2013) (affirming dismissal, in part, because plaintiff’s “complaint makes no factual 26 allegations from which we could plausibly infer that Wells Fargo regularly collects debts owed to 27 someone other than Wells Fargo”); De Dios v. Int’l Realty & Investments, 641 F.3d 1071, 1074 28 1 (9th Cir. 2011) (“[T]he person who originated the debt, such as a creditor to whom the debt was 2 originally owed, is not considered a debt collector”); Rowe v. Educ. Credit Mgmt. Corp., 559 3 F.3d 1028, 1031 (9th Cir. 2009) (“[A] ‘creditor’ is not a ‘debt collector’ under the FDCPA.”). 4 Plaintiff’s complaint fails to plead sufficient facts to establish that the City was acting as a 5 “debt collector” for any relevant time. While, presumably, the debt he is contesting is the City’s 6 utility invoices, plaintiff’s complaint does not allege any inappropriate means of collecting this 7 obligation beyond “threadbare recitals.” (See generally ECF No. 12.) Plaintiff therefore entirely 8 fails to assert facts that would allow him to recover premised on the five provisions of the 9 FDCPA he cites.
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1 2 3 4 5 6 7 10 11 PRAKASH NARAYAN, No. 2:19-cv-00466-TLN-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 COUNTY OF SACRAMENTO, et al., AND ORDER 15 Defendants. (ECF Nos. 54, 65, 66) 16 17 Presently before the court is defendant City of Sacramento’s (the City) motion to dismiss 18 brought pursuant to Rule 12(b)(6). (ECF No. 54.) Plaintiff filed a motion for an extension of 19 time to file an opposition, which the court granted in part, allowing plaintiff until February 26, 20 2020, to file his opposition. (ECF Nos. 62, 63.) Plaintiff did not file an opposition by this 21 deadline, but on March 18, 2020 filed a motion to electronically file another motion for an 22 extension of time. (ECF Nos. 65, 66.) For the following reasons, the court RECOMMENDS 23 GRANTING defendant’s motion and dismissing plaintiff’s complaint against the City. The court 24 also DENIES plaintiff’s motions to file electronically and for another extension. 26 Pro se plaintiff Prakash Narayan filed the present suit against Wells Fargo, Sacramento 27 County, the City, and related entities. (ECF No. 12.) Although somewhat vague, plaintiff’s First 28 Amended Complaint alleges that the City violated the Fair Debt Collect Practices Act (FDCPA) 1 by attempting to collect allegedly invalid utilities debt from him. (See id. at 1-2.) Plaintiff also 2 includes in his complaint two unnumbered counts: public corruption and tampering. (Id. at 5, 8.) 3 The count of public corruption, as against the City, appears to be premised on allegations of 4 discriminatory treatment when Narayan was a City employee. (Id. at 5-6.) Plaintiff’s tampering 5 cause of action does not appear to be asserted against the City, as it contains no factual allegations 6 against that defendant. (See id. at 8-9.) 7 The City moves to dismiss plaintiff’s compliant against it for failure to state a claim upon 8 which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 54.) 10 Legal standard 11 In considering a motion to dismiss for failure to state a claim upon which relief can be 12 granted, the court must accept as true the allegations of the complaint in question, Erickson v. 13 Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the 14 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 23 at 678. 24 In ruling on a motion to dismiss pursuant to Rule 12(b), the court “may generally consider 25 only allegations contained in the pleadings, exhibits attached to the complaint, and matters 26 properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 27 895, 899 (9th Cir. 2007). Defendant has requested this court take judicial notice of certain 28 documents. (ECF No. 54-2.) That request is granted. 1 Plaintiff’s FDCPA causes of action do not state a claim against the City. 2 Plaintiff alleges five counts premised on the FDCPA. Each cause of action lists a separate 3 provision of the FDCPA. (ECF No. 12 at 1-4.) 4 Congress passed the FDCPA in 1977 with the stated purposes of eliminating “abusive 5 debt collection practices,” ensuring “that those debt collectors who refrain from using abusive 6 debt collection practices are not competitively disadvantaged,” and promoting “consistent State 7 action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). In furtherance 8 of these purposes, the FDCPA bans a variety of debt-collection practices and allows individuals 9 to sue offending debt collectors. 10 “Debt collector” as used in the FDCPA,
11 means any person who uses any instrumentality of interstate commerce or the 12 mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed 13 or due or asserted to be owed or due another.
14 15 U.S.C. § 1692(a)(6) (emphasis added). 15 Plaintiff’s complaint alleges that the City violated five FDCPA provisions. (ECF No. 12.) 16 Four of these provisions prohibit “debt collectors” from certain activities. See 15 U.S.C. § 1692f 17 (“A debt collector may not use unfair or unconscionable means to collect or attempt to collect any 18 debt”); 15 U.S.C. § 1692e (“A debt collector may not use any false, deceptive, or misleading 19 representation or means in connection with the collection of any debt”); 15 U.S.C. § 1692d (“A 20 debt collector may not engage in any conduct the natural consequence of which is to harass, 21 oppress, or abuse any person in connection with the collection of a debt”); 15 U.S.C. § 1692g 22 (creating requirements for debt collectors to follow when validating debts). 23 Courts have consistently held that creditors, even assignees from the original creditor, are 24 not “debt collectors” under the FDCPA. Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1209 25 (9th Cir. 2013) (affirming dismissal, in part, because plaintiff’s “complaint makes no factual 26 allegations from which we could plausibly infer that Wells Fargo regularly collects debts owed to 27 someone other than Wells Fargo”); De Dios v. Int’l Realty & Investments, 641 F.3d 1071, 1074 28 1 (9th Cir. 2011) (“[T]he person who originated the debt, such as a creditor to whom the debt was 2 originally owed, is not considered a debt collector”); Rowe v. Educ. Credit Mgmt. Corp., 559 3 F.3d 1028, 1031 (9th Cir. 2009) (“[A] ‘creditor’ is not a ‘debt collector’ under the FDCPA.”). 4 Plaintiff’s complaint fails to plead sufficient facts to establish that the City was acting as a 5 “debt collector” for any relevant time. While, presumably, the debt he is contesting is the City’s 6 utility invoices, plaintiff’s complaint does not allege any inappropriate means of collecting this 7 obligation beyond “threadbare recitals.” (See generally ECF No. 12.) Plaintiff therefore entirely 8 fails to assert facts that would allow him to recover premised on the five provisions of the 9 FDCPA he cites. 10 Additionally, even if such overt actions were pleaded, based on plaintiff’s complaint it is 11 apparent that the City was the creditor for the utility bills in question. (See ECF No. 12 at 2 12 (“Defendant City of Sacramento at some point provided utility bill . . . to Defendant County of 13 Sacramento.”).) Thus, based on plaintiff’s complaint the City was owed the debt in question in 14 this matter, and the above statutes do not apply to it. See Rowe, 559 F.3d at 1031. Finally, the 15 City is not a “business the principal purpose of which” is the collection of debts, meaning it is not 16 a “debt collector” under the FDCPA. See 15 U.S.C. § 1692(a)(6).1 17 Accordingly, plaintiff’s claims against the City premised on the FDCPA fail to state a 18 claim and should therefore be dismissed. 19 Plaintiff’s tampering and corruption causes of action do not state claims against the City. 20 In addition to plaintiff’s numbered causes of action premised on the FDCPA, the 21 complaint also contains two headings entitled “public corruption” and “t[a]mpering with public 22 records.” (ECF No. 12 at 5, 8.) 23 Plaintiff’s public corruption cause of action, as against the City, generally alleges 24 discrimination by the City against plaintiff when plaintiff was a City employee. (ECF No. 12 at 25
1 Plaintiff’s final FDCPA claim, “furnishing certain deceptive forms” would not apply to the City 26 for similar reasons. That statute makes it unlawful to “furnish any form knowing that such form 27 would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection[.]” 15 U.S.C. § 1692j. As the City was the creditor in 28 this situation, this provision has no application. 1 5-6.) However, plaintiff does not include in his complaint that he filed a discrimination lawsuit in 2 2005, which resulted in a jury verdict against him. (ECF No. 54-2). Nor does plaintiff address 3 that this is not his first attempt to collaterally attack that judgment. (Id.) Based on these prior 4 suits, plaintiff’s allegations against the City in his “public corruption” count are barred by res 5 judicata. 6 Res judicata, or claim preclusion, applies when “the earlier suit . . . (1) involved the same 7 ‘claim’ or cause of action as the later suit, (2) reached a final judgment on the merits, and (3) 8 involved identical parties or privies.” Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 9 (9th Cir. 2005) (quoting Sidhu v. Flecto Co., 279 F.3d 896, 900 (9th Cir.2002)). 10 Applying these elements to the current case: (1) plaintiff’s prior suits allege the same or 11 essentially identical discriminatory actions by the City as he currently alleges; (2) both earlier 12 suits reached a final judgment on the merits; and (3) both prior suits named the City or a party in 13 privity with the City.2 14 Accordingly, to the extent that plaintiff’s public corruption cause of action can be viewed 15 against the City, plaintiff has failed to state a claim for which relief can be granted. 16 Regarding plaintiff’s second unnumbered count, tampering with public records, plaintiff 17 does not include any mention of the City in this section. (See ECF No. 12 at 8-9.) However, to 18 the extent that this cause of action implicates the City, the undersigned finds plaintiff has failed to 19 state any facts that would entitle him to relief. 20 Neither of plaintiff’s unnumbered causes of action state a claim against the City that 21 would entitle plaintiff to relief. Accordingly, the undersigned recommends dismissing these 22 causes of action as against the City. 23 Plaintiff’s miscellaneous motions are denied. 24 Finally, plaintiff filed a motion to electronically file in this matter and a motion for an 25 extension of time to file an opposition to the City’s motion to dismiss. (ECF Nos. 65, 66.) 26 27 2 Plaintiff’s first collateral attack on the jury verdict asserted claims against the Attorney who 28 represented the City at trial. 1 Generally, “any person appearing pro se may not utilize electronic filing except with the 2 | permission of the assigned Judge or Magistrate Judge.” E.D. Cal. L.R. 133(b)(2) (emphasis in 3 | original). The court finds no reason in the present case to deviate from this general rule. At the 4 | current stage of litigation plaintiff's motion (ECF No. 65) is therefore DENIED. 5 Regarding plaintiff's motion for an extension of time to file an opposition to the City’s 6 | motion to dismiss (ECF No. 66), that motion is also DENIED. The court previously granted, in 7 | part, plaintiff's motion for an extension of time. (ECF No. 63.) Instead of granting plaintiffs 8 | request for more than four additional months to file an opposition, the court gave plaintiff two 9 | additional weeks. (d.) Plaintiff still failed to file a timely opposition, however. Contrary to 10 | plaintiff's assertions, the prior order granting him an extension clearly refers to his motion for an 11 | extension, and clearly states when his opposition was due. (See id.) The court therefore DENIES 12 | plaintiff's motion for an additional extension. 13 | CONCLUSION 14 Accordingly, it is hereby ORDERED that plaintiff's motion to electronically file (ECF 15 | No. 65) and plaintiff's motion for an extension of time (ECF No. 66) are DENIED. 16 Additionally, it is hereby RECOMMENDED that: 17 1. The City’s motion to dismiss be GRANTED (ECF No. 54); and 18 2. Plaintiffs claims against the City be dismissed WITH PREJUDICE. 19 These findings and recommendations are submitted to the United States District Judge 20 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 21 | after being served with these findings and recommendations, any party may file written 22 | objections with the court and serve a copy on all parties. Such a document should be captioned 23 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 24 | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 25 | Yist, 951 F.2d 1153 (9th Cir. 1991). 26 | Dated: March 23, 2020 dp. Al bie 7 CAROLYN K. DELANEY 28 | 16. nara. 466 UNITED STATES MAGISTRATE JUDGE