1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Bruce Wilcox and Connie Wilcox, Case No.: 2:20-cv-01545-JAD-NJK
4 Plaintiffs Order Granting in Part Motion to Dismiss 5 v. with Leave to Amend
6 Portfolio Recovery Associates, LLC, [ECF No. 55]
7 Defendant
8 Pro se plaintiffs Bruce and Connie Wilcox sued Portfolio Recovery Associates, LLC in 9 state court in response to a now-dismissed debt-collection action initiated by Portfolio. Portfolio 10 removed the case to federal court and moved to dismiss. In September, I granted that motion, 11 dismissing with prejudice the Wilcoxes’ fraud, theft, and state-law-based claims and dismissing 12 with leave to amend their claims for defamation and violations of the Federal Debt Collection 13 Practices Act (FDCPA). Portfolio now moves to dismiss the Wilcoxes’ amended complaint, and 14 I grant that motion in part. I dismiss the Wilcoxes’ FDCPA claim as insufficiently pled, but I 15 again grant them limited leave to amend because it appears based on their response to the motion 16 to dismiss that they could plead a set of facts to sustain their claim, but those factual details must 17 appear in their next amended complaint. But I find that the Wilcoxes have sufficiently pled their 18 defamation claim, so I deny the motion as to that claim. 19 20 21 22 23 1 Discussion1 2 I. Motion-to-dismiss standard 3 Federal pleading standards require a plaintiff’s complaint to include enough factual detail 4 to “state a claim to relief that is plausible on its face.”2 This “demands more than an unadorned,
5 the-defendant-unlawfully-harmed-me accusation”;3 plaintiffs must make direct or inferential 6 factual allegations about “all the material elements necessary to sustain recovery under some 7 viable legal theory.”4 “Malice, intent, knowledge, and other conditions of a person’s mind may 8 be alleged generally.”5 A complaint that fails to meet this standard must be dismissed.6 9 But federal courts must also interpret all pleadings “so as to do justice,”7 and the 10 Supreme Court has consistently held that pro se pleadings are “to be liberally construed.”8 A pro 11 se complaint, “however inartfully pleaded, must be held to less stringent standards than formal 12 pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears 13 beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which 14
15 1 The parties are familiar with the material facts of this case, so I do not repeat them here. See ECF No. 52. 16 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Hal Roach Studios, Inc. v. Richard 17 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (noting that facts outside the complaint may not be considered at the dismissal stage unless they are “properly submitted as [exhibits 18 incorporated within] the complaint”). 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 19 4 Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 20 (7th Cir. 1984)); see also Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp., 905 F.3d 597, 602 (9th Cir. 2018) (“Uncontroverted allegations in the complaint must be taken as true, and factual 21 disputes are construed in the plaintiff’s favor.”). 5 Fed. R. Civ. P. 9(b). 22 6 Twombly, 550 U.S. at 570. 23 7 Fed. R. Civ. P. 8(e). 8 Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted). 1 would entitle [them] to relief.”9 If the court grants a motion to dismiss for failure to state a 2 claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint 3 cannot be cured by amendment.10 4 II. The Wilcoxes’ FDCPA claim must be dismissed.
5 The Wilcoxes claim that Portfolio violated the FDCPA while attempting to collect on an 6 allegedly fraudulent debt. The FDCPA “prohibits debt collectors from making false or 7 misleading representations and from engaging in various abusive and unfair practices” and 8 creates a private right of action to enforce its provisions.11 To prevail on a claim under the 9 FDCPA, a plaintiff must show that: (1) the defendant is a “debt collector”12 (2) who violated any 10 FDCPA provision13 and (3) the alleged debt arose out of a transaction with a primarily personal 11 purpose.14 Any private claim under the statute must be brought within one year of the 12 violation.15 13 Portfolio moves to dismiss the Wilcoxes’ FDCPA claim on two primary grounds: (1) 14 most, if not all, of the allegations of FDCPA violations are barred by the one-year statute of
15 limitations and (2) even if the claim were timely, the Wilcoxes have failed to sufficiently plead 16 facts to show a statutory violation.16 The Supreme Court has held that courts must strictly 17
18 9 Id. (cleaned up). 10 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 19 11 Heintz v. Jenkins, 541 U.S. 291, 292 (1995) (cleaned up); see 15 U.S.C. § 1692k. 20 12 15 U.S.C. § 1692a(6). 21 13 Id. at § 1692k. 14 Id. at § 1692a(5). 22 15 Id. at § 1692k(d). 23 16 See ECF No. 55. Portfolio also attempts to rebuff the Wilcoxes’ attempt to seek injunctive relief for the FDCPA violations they allege. Id. at 4 n.1. Although the Wilcoxes style their request for injunctive relief as a separate claim, I construe it as an additional prayer for relief, not 1 enforce the FDCPA’s statute of limitations.17 The Wilcoxes initially filed this case in state court 2 on March 11, 2020,18 so any FDCPA claims based on violations occurring before March 11, 3 2019, are time barred. Because most, but not all, of their claims rely on Portfolio’s actions 4 before 2019, I grant in part the motion and dismiss those claims with prejudice. But it is unclear
5 whether any of Portfolio’s collection efforts and allegedly unlawful harassment of the Wilcoxes 6 took place within the limitations period, so I dismiss any remaining portion of their FDCPA 7 claim without prejudice and with leave to amend. 8 III. The Wilcoxes state a colorable claim for defamation. 9 In Nevada, proving defamation requires establishing (1) “a false and defamatory 10 statement of fact by the defendant concerning the plaintiff[s],” (2) “an unprivileged publication 11 to a third person,” (3) “fault, amounting to at least negligence,” and (4) “actual or presumed 12 damages.”19 The Wilcoxes allege that Portfolio “reckless[ly and] deliberate[ly]” “provided false 13 information” to the three major credit bureaus, damaging their creditworthiness and reputation 14 and resulting in actual damages in the form of, among other things, denied home loans and
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Bruce Wilcox and Connie Wilcox, Case No.: 2:20-cv-01545-JAD-NJK
4 Plaintiffs Order Granting in Part Motion to Dismiss 5 v. with Leave to Amend
6 Portfolio Recovery Associates, LLC, [ECF No. 55]
7 Defendant
8 Pro se plaintiffs Bruce and Connie Wilcox sued Portfolio Recovery Associates, LLC in 9 state court in response to a now-dismissed debt-collection action initiated by Portfolio. Portfolio 10 removed the case to federal court and moved to dismiss. In September, I granted that motion, 11 dismissing with prejudice the Wilcoxes’ fraud, theft, and state-law-based claims and dismissing 12 with leave to amend their claims for defamation and violations of the Federal Debt Collection 13 Practices Act (FDCPA). Portfolio now moves to dismiss the Wilcoxes’ amended complaint, and 14 I grant that motion in part. I dismiss the Wilcoxes’ FDCPA claim as insufficiently pled, but I 15 again grant them limited leave to amend because it appears based on their response to the motion 16 to dismiss that they could plead a set of facts to sustain their claim, but those factual details must 17 appear in their next amended complaint. But I find that the Wilcoxes have sufficiently pled their 18 defamation claim, so I deny the motion as to that claim. 19 20 21 22 23 1 Discussion1 2 I. Motion-to-dismiss standard 3 Federal pleading standards require a plaintiff’s complaint to include enough factual detail 4 to “state a claim to relief that is plausible on its face.”2 This “demands more than an unadorned,
5 the-defendant-unlawfully-harmed-me accusation”;3 plaintiffs must make direct or inferential 6 factual allegations about “all the material elements necessary to sustain recovery under some 7 viable legal theory.”4 “Malice, intent, knowledge, and other conditions of a person’s mind may 8 be alleged generally.”5 A complaint that fails to meet this standard must be dismissed.6 9 But federal courts must also interpret all pleadings “so as to do justice,”7 and the 10 Supreme Court has consistently held that pro se pleadings are “to be liberally construed.”8 A pro 11 se complaint, “however inartfully pleaded, must be held to less stringent standards than formal 12 pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears 13 beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which 14
15 1 The parties are familiar with the material facts of this case, so I do not repeat them here. See ECF No. 52. 16 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Hal Roach Studios, Inc. v. Richard 17 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (noting that facts outside the complaint may not be considered at the dismissal stage unless they are “properly submitted as [exhibits 18 incorporated within] the complaint”). 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 19 4 Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 20 (7th Cir. 1984)); see also Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp., 905 F.3d 597, 602 (9th Cir. 2018) (“Uncontroverted allegations in the complaint must be taken as true, and factual 21 disputes are construed in the plaintiff’s favor.”). 5 Fed. R. Civ. P. 9(b). 22 6 Twombly, 550 U.S. at 570. 23 7 Fed. R. Civ. P. 8(e). 8 Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted). 1 would entitle [them] to relief.”9 If the court grants a motion to dismiss for failure to state a 2 claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint 3 cannot be cured by amendment.10 4 II. The Wilcoxes’ FDCPA claim must be dismissed.
5 The Wilcoxes claim that Portfolio violated the FDCPA while attempting to collect on an 6 allegedly fraudulent debt. The FDCPA “prohibits debt collectors from making false or 7 misleading representations and from engaging in various abusive and unfair practices” and 8 creates a private right of action to enforce its provisions.11 To prevail on a claim under the 9 FDCPA, a plaintiff must show that: (1) the defendant is a “debt collector”12 (2) who violated any 10 FDCPA provision13 and (3) the alleged debt arose out of a transaction with a primarily personal 11 purpose.14 Any private claim under the statute must be brought within one year of the 12 violation.15 13 Portfolio moves to dismiss the Wilcoxes’ FDCPA claim on two primary grounds: (1) 14 most, if not all, of the allegations of FDCPA violations are barred by the one-year statute of
15 limitations and (2) even if the claim were timely, the Wilcoxes have failed to sufficiently plead 16 facts to show a statutory violation.16 The Supreme Court has held that courts must strictly 17
18 9 Id. (cleaned up). 10 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 19 11 Heintz v. Jenkins, 541 U.S. 291, 292 (1995) (cleaned up); see 15 U.S.C. § 1692k. 20 12 15 U.S.C. § 1692a(6). 21 13 Id. at § 1692k. 14 Id. at § 1692a(5). 22 15 Id. at § 1692k(d). 23 16 See ECF No. 55. Portfolio also attempts to rebuff the Wilcoxes’ attempt to seek injunctive relief for the FDCPA violations they allege. Id. at 4 n.1. Although the Wilcoxes style their request for injunctive relief as a separate claim, I construe it as an additional prayer for relief, not 1 enforce the FDCPA’s statute of limitations.17 The Wilcoxes initially filed this case in state court 2 on March 11, 2020,18 so any FDCPA claims based on violations occurring before March 11, 3 2019, are time barred. Because most, but not all, of their claims rely on Portfolio’s actions 4 before 2019, I grant in part the motion and dismiss those claims with prejudice. But it is unclear
5 whether any of Portfolio’s collection efforts and allegedly unlawful harassment of the Wilcoxes 6 took place within the limitations period, so I dismiss any remaining portion of their FDCPA 7 claim without prejudice and with leave to amend. 8 III. The Wilcoxes state a colorable claim for defamation. 9 In Nevada, proving defamation requires establishing (1) “a false and defamatory 10 statement of fact by the defendant concerning the plaintiff[s],” (2) “an unprivileged publication 11 to a third person,” (3) “fault, amounting to at least negligence,” and (4) “actual or presumed 12 damages.”19 The Wilcoxes allege that Portfolio “reckless[ly and] deliberate[ly]” “provided false 13 information” to the three major credit bureaus, damaging their creditworthiness and reputation 14 and resulting in actual damages in the form of, among other things, denied home loans and
15 credit-limit increases.20 Portfolio only contests whether the first-amended complaint establishes 16 the first element of defamation.21 Although the Wilcoxes did not plead the exact statements 17 Portfolio made, they allege that on a “date unknown,” Portfolio intentionally or recklessly 18 19
its own claim. So they did not run afoul of my last order by including such a request in their 20 first-amended complaint. 21 17 Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019); see 15 U.S.C. § 1692k(d). 18 ECF No. 1-1. 22 19 Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005). 23 20 ECF No. 53 at ¶¶ 28–30, 52–54. 21 ECF No. 55 at 5–6. 1 informed the credit bureaus that they had defaulted on a debt they did not owe.22 Liberally 2 construing the complaint, I find that these allegations are sufficient for their claim to survive 3 dismissal at this early stage in the proceedings, so I deny the motion to dismiss this claim. 4 IV. Leave to amend
5 I grant the Wilcoxes leave to amend their FDCPA claim. If the Wilcoxes choose to 6 amend their complaint, they are advised that a second-amended complaint fully replaces their 7 first-amended complaint, so the second-amended complaint must be complete in itself, and every 8 element of every claim—including the not-dismissed defamation claim—must be supported by 9 specific facts.23 All the details underlying both of their claims must be incorporated into their 10 second-amended complaint, as that document is all that the court will consider in determining 11 whether they’ve pled plausible claims. The Wilcoxes should not wait to include those details or 12 attach exhibits in response to a future motion to dismiss because the court cannot consider them 13 at that point. They must file the amended complaint on this court’s approved form; it must be 14 filed by June 24, 2022; and it must be entitled “Second Amended Complaint.” The Wilcoxes
15 may not amend the complaint to add unrelated claims against other defendants, replead claims 16 that were previously dismissed with prejudice, or include new claims based on events that have 17 taken place since the original complaint was filed. 18 . . . 19 20 21 22 22 Id. at ¶ 28. 23 23 See Hal Roach Studios, 896 F.2d at 1546 (holding that “an amended pleading supersedes the original”). Conclusion 2 IT IS THEREFORE ORDERED that defendant Portfolio Recovery Associates, LLC’s motion to dismiss [ECF No. 55] is GRANTED in part and DENIED in part. The Wilcoxes’ 4! claim for violations of the FDCPA is DISMISSED in part without prejudice and in part without prejudice and with leave to amend as stated in this order. The Wilcoxes have until 6|| June 24, 2022, to file an amended complaint if they can cure the deficiencies identified in this order. If they do not file an amended complaint by June 24, 2022, this case will proceed on 8|| their defamation claim only. 9 The Clerk of the Court is directed to SEND the plaintiffs the court’s form pro se 10|| complaint for a civil case. 1]
US. DistrictNudge J wane A, Posey 13 Jurie3, 2022 14 15 16 17 18 19 20 21 22 23