Sean McCullough, Plaintiff, v. Optimum Title Loans LLC, Defendant.
Honorable John J. Tuchi United States Of America District Judge
(Doc. 17, Mot. ), to which Sean that is plaintiff McCullough an answer (Doc. 18, Resp. ), and Defendant filed an answer (Doc. 20, Answer).
May 1, 2018, Plaintiff obtained that loan from Defendant for $10,000. (Doc. 1, Compl. ¶ 9. ) Pursuant to a funding contract regulating the mortgage (the “Agreement”), Plaintiff had been obligated in order to make planned re re payments to Defendant aided by the very first repayment due on June 30, 2018. (Compl. ¶ 11. )
Plaintiff alleges that Defendant made phone telephone phone calls and delivered texting to their cellular phone trying to gather regarding the loan just after the ongoing events entered the contract. (Compl. ¶ 13. ) Whenever responding to the phone telephone calls, Plaintiff experienced a pause enduring a few moments and over over and over repeatedly said “hello” before being attached to a representative that is live. (Compl. ¶ 16. ) Plaintiff asked that Defendant stop calling him because re payments beneath the Agreement weren’t yet press the site due. (Compl. ¶ 17. ) Notwithstanding Plaintiff’s request, Defendant allegedly made at the very least thirty more telephone calls to Plaintiff from multiple telephone numbers. (Compl. ¶ 18. )
In February 2019, Plaintiff filed a problem alleging that Defendant willfully and knowingly violated the phone customer Protection Act (“TCPA”). (Compl. ¶ 28. ) Plaintiff alleges that Defendant utilized a telephone that is automatic system (“ATDS”) to produce phone calls and deliver texting to Plaintiff’s mobile phone without Plaintiff’s consent. (Compl. ¶¶ 25-26. ) Into the problem, Plaintiff also raises claims for deliberate infliction of psychological stress and breach of agreement (collectively the “state legislation claims”). (Compl. ¶¶ 31, 39. ) Defendant now moves to dismiss the TCPA reason for action for failure to convey a claim, also to the degree that motion is issued, Defendant contends that the Court should decrease to hold jurisdiction throughout the state legislation claims and therefore dismiss the total amount for the problem. (Mot. At 1. )
II. LEGAL STANDARD
Whenever analyzing a problem for failure to mention a claim for relief under Federal Rule of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as real and construed within the light most favorable to your nonmoving celebration. Cousins v. Lockyer, 568 F. 3d 1063, 1067 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief this is certainly plausible on its face. ” Bell Atl. Corp. V. Twombly, 550 U.S. 544, 570 (2007). Legal conclusions couched as factual allegations aren’t eligible for the presumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and so are inadequate to beat a motion to dismiss for failure to convey a claim. In re Cutera Sec. Litig., 610 F. 3d 1103, 1108 (9th Cir. 2010).
A dismissal under Rule 12(b)(6) for failure to convey a claim may be according to either (1) having less a cognizable legal theory or (2) insufficient facts to aid a cognizable claim that is legal. Balistreri v. Pacifica Police Dep’t, 901 F. 2d 696, 699 (9th Cir. 1990). “While a problem assaulted with a Rule 12(b)(6) movement doesn’t need detailed factual allegations, a plaintiff’s responsibility to present the ‘grounds’ of their ‘entitlement to relief’ requires significantly more than labels and conclusions, and a formulaic recitation associated with the components of a reason behind action will likely not do. ” Twombly, 550 U.S. At 555 (citations omitted). The grievance must hence include “sufficient matter that is factual accepted as real, to ‘state a claim to relief that is plausible on its face. ‘” Ashcroft, 556 U.S. At 678 (quoting Twombly, 550 U.S. At 570). “A well-pleaded complaint may continue even when it hits a savvy judge that real proof those facts is improbable, and that ‘recovery is extremely remote and not likely. ‘” Twombly, 550 U.S. At 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).