Shupe v. Capital One Bank USA NA

MOTION to Dismiss Counts/Claims : Count III Defendant Capital One Bank

D. Ariz.March 27, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {0005076.0021/00757453.DOCX / } D O L L A M IR & E L E Y L LP WADE M. BURGESON, SBA #015650 ENGELMAN BERGER, P.C. 3636 NORTH CENTRAL AVENUE, SUITE 700 PHOENIX, ARIZONA 85012 _____________ Ph: (602) 271-9090 Fax: (602) 222-4999 Email: wmb@eblawyers.com _____________ Attorneys for Defendant CAPITAL ONE BANK (USA), N.A. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RICHARD SHUPE, Plaintiff, v. CAPITAL ONE BANK USA, N.A., Defendant. Case No. 4:16-cv-00571-JGZ DEFENDANT CAPITAL ONE BANK (USA), N.A.’S PARTIAL MOTION TO DISMISS Defendant Capital One Bank (USA), N.A. (“Capital One”) moves pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for an order dismissing Count III of the Second Amended Complaint filed by Plaintiff Richard Shupe (“Plaintiff”). Count III of the Second Amended Complaint is subject to dismissal because it fails to state a claim on which relief can be granted. WHEREFORE, Capital One respectfully requests that the Court grant its motion and dismiss Count III of Plaintiff’s Second Amended Complaint with prejudice. This Motion is supported by the following memorandum of points and authorities, as well as the papers and pleadings already on file, all of which are incorporated by reference. MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION Plaintiff Richard Shupe brings this action over collection calls he alleges that Capital One placed to his cellular telephone in an attempt to collect unpaid debt owed by Plaintiff’s wife. Plaintiff initially alleged eight claims against Capital One, and Capital One brought a Case 4:16-cv-00571-JGZ Document 23 Filed 03/27/17 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {0005076.0021/00757453.DOCX / } 2 EN G EL M A N B ER G ER , P .C . 36 36 N or th C en tra l A ve nu e, S ui te 7 00 Ph oe ni x, A riz on a 85 01 2 motion to dismiss. The Court granted Capital One’s motion, and Plaintiff filed the Second Amended Complaint (“SAC”). Of the claims the Court dismissed, Plaintiff only realleges his claim for negligence. However, the claim still suffers from the same flaws as in the First Amended Complaint, and it fails for the same reasons. Specifically, Capital One’s motion demonstrated, and the Court’s order agreed, that Plaintiff’s First Amended Complaint had not alleged adequately a duty of care owed by Capital One to Plaintiff to give rise to a claim of negligence. Plaintiff did not (and could not) allege that he was a customer of Capital One, and he did not set forth any factual allegations of any other relationship with Capital One. The SAC does not remedy this shortcoming. Although Plaintiff’s recitation of his third cause of action for negligence now contains more legal conclusions, it does not contain any additional factual allegations. Because Plaintiff has not alleged adequately any relationship between himself and Capital One that gives rise to a duty of care, Plaintiff has failed to allege adequately this claim and it should be dismissed. Moreover, because Plaintiff already had one opportunity to cure this deficiency and was unable to do so, Capital One respectfully requests that this claim be dismissed with prejudice.1 II. SUMMARY OF ALLEGATIONS As it must on a motion to dismiss, defendant Capital One takes the factual allegations (although not the legal conclusions) in Plaintiff’s Amended Complaint as true. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014) (“While we do accept all of the factual allegations in the complaint as true . . . we do not accept legal conclusions in the complaint as true, even if cast in the form of factual allegations.” (citation and quotation omitted)). Plaintiff’s spouse applied for a credit card from Capital One. (See Second Amended Complaint (“SAC”), at 2: 18-24.)2 At application, the spouse provided Plaintiff’s cellular 1 Capital One does not admit that Counts I, II, or III of the Amended Complaint have merit, but it does not include them in this challenge under Federal Rule of Civil Procedure 12. Case 4:16-cv-00571-JGZ Document 23 Filed 03/27/17 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {0005076.0021/00757453.DOCX / } 3 EN G EL M A N B ER G ER , P .C . 36 36 N or th C en tra l A ve nu e, S ui te 7 00 Ph oe ni x, A riz on a 85 01 2 telephone number ending in -6400. (See id.) Later, upon receipt of a statement that included an unauthorized charge, Plaintiff’s spouse disputed the charge with Capital One in writing. (See id.) According to the allegations, Plaintiff’s spouse received no response, and instead Capital One began placing calls to Plaintiff’s cellular telephone. (See id.) Plaintiff alleges he answered the first call and informed Capital One that: (1) he was not Capital One’s customer, (2) the phone number was on the Do Not Call Registry, (3) the telephone was a prepaid cell phone, (4) Plaintiff’s wife was disabled and future calls would allegedly cause “physical trauma” to her; and (5) Capital One should stop calls to this phone. (See Am. Compl., at 3:1-7.) Plaintiff also followed up on this call with a written cease and desist letter. (Id., at 3:8-10.) Nonetheless, calls continued. (See id., at 3:14-15.) Based on these allegations, Plaintiff alleges four causes of action: Count I—violation of the Telephone Consumer Protection Act (“TCPA”); Count II—violation 64 C.F.R. § 1200, the regulations implementing the TCPA; Count III—gross negligence; Count IV— invasion of privacy. III. LEGAL STANDARD A. Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Fed. R. Civ. Pro. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). “To survive a motion to dismiss [brought pursuant to Federal Rule of Civil Procedure 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quotation omitted). This plausibility standard requires that Plaintiff “plead[] factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 2 Despite the Court’s order to do so, Plaintiff failed to allege his claims in “discrete paragraphs, each of which is numbered in consecutive order,” in his Amended Complaint. (Dkt. 8.) For ease, Capital One cites the respective page and line number(s) of the SAC. Case 4:16-cv-00571-JGZ Document 23 Filed 03/27/17 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {0005076.0021/00757453.DOCX / } 4 EN G EL M A N B ER G ER , P .C . 36 36 N or th C en tra l A ve nu e, S ui te 7 00 Ph oe ni x, A riz on a 85 01 2 In deciding a motion to dismiss for failure to state a claim, the court’s review is limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). The court accepts all factual allegations pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995). Despite the deference the court must pay to the plaintiff’s allegations, a court does not assume that “the [plaintiff] can prove facts which [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Furthermore, the court is “not bound to accept as true a legal conclusion couched as a factual allegation,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 129 S. Ct. at 1949–50. Indeed, a court is not required to credit conclusory legal allegations cast in the form of factual allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). In other words, a Rule 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Under this standard, Count III fails as a matter of law and should be dismissed. IV. LEGAL ARGUMENT A. Count III Alleging Negligence Fails as a Matter of Law Because Plaintiff Is Not Capital One’s Customer and Capital One Owes Him No Duty. Plaintiff attempts to revive his negligence claim by alleging that Capital One owed and breached a duty of care to comply with the Telephone Consumer Protection Act. (See SAC, 7:1-18.) This effort fails to identify a relationship between Plaintiff and Capital One sufficient to give rise to a duty of care. Case 4:16-cv-00571-JGZ Document 23 Filed 03/27/17 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {0005076.0021/00757453.DOCX / } 5 EN G EL M A N B ER G ER , P .C . 36 36 N or th C en tra l A ve nu e, S ui te 7 00 Ph oe ni x, A riz on a 85 01 2 Under Arizona law, a plaintiff must prove four elements to establish negligence: “(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, , 230 (Ariz. 2007). “The question of duty . . . is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff.” Bloxham v. Glock Inc., 53 P.3d 196, 199 (Ariz. App. 2002) (quoting Markowitz v. Arizona Parks Bd., 706 P.2d 364, 368 (Ariz. 1985)). “Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant.” Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 307 P.3d 1025, 1028 (Ariz. App. 2013) (citations omitted). “The existence of duty is a threshold issue that is usually decided by the trial court as a matter of law, subject to our de novo review.” Bloxham, 53 P.3d at 199 (quoting Republic Nat’l Bank v. Pima County, 25 P.3d 1, ¶ 11 (Ariz. App. 2001)). The court decides the legal question of whether a duty exists. Gipson, 150 P.3d at 230. Here, the answer to that question is no. The SAC contains no allegations indicating that Plaintiff is a customer of Capital One or that he has any other relationship with Capital One. (See generally, SAC.) Without such a relationship, Capital One owes Plaintiff no duty of care. Specifically, Arizona has “rejected the argument that banks owe a duty to non- customers.” Gilbert Tuscany Lender, LLC, 2307 P.3d at 1028. Because Plaintiff admittedly is not Capital One’s customer, no duty exists, and Plaintiff’s negligence claim fails as a matter of law and should be dismissed. V. CONCLUSION For the foregoing reasons, Capital One respectfully requests that its motion to dismiss be granted in its entirety and Count III of Plaintiff’s Second Amended Complaint be dismissed. Moreover, as Plaintiff has already had one opportunity to cure the deficiencies of this claim and he was unable to do so, Capital One respectfully requests that the Court dismiss the cause of action with prejudice. Case 4:16-cv-00571-JGZ Document 23 Filed 03/27/17 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {0005076.0021/00757453.DOCX / } 6 EN G EL M A N B ER G ER , P .C . 36 36 N or th C en tra l A ve nu e, S ui te 7 00 Ph oe ni x, A riz on a 85 01 2 DATED this 27th day of March 2017. ENGELMAN BERGER, P.C. By /s/ SBA #015650 Wade M. Burgeson Attorneys for Capital One Bank (USA), N.A. CERTIFICATE OF SERVICE I hereby certify that on the 27th day of March, 2017, I electronically transmitted the foregoing Defendant Capital One Bank (USA), N.A.’s Partial Motion to Dismiss to the U.S. District Court Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Richard Shupe 3657 S. Double Echo Rd. Tucson, AZ 85735 mmm9088@gmail.com /s/ Lisa G. Morgan Case 4:16-cv-00571-JGZ Document 23 Filed 03/27/17 Page 6 of 6