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 a reply (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 up to a funding contract regulating the mortgage (the “contract”), Plaintiff ended up being obligated which will make planned re re payments to Defendant aided by the payment that is first on June 30, 2018. (Compl. ¶ 11. )
Plaintiff alleges that Defendant made phone telephone phone calls and delivered texting to his mobile phone wanting to gather in the loan just after the ongoing events entered the contract. (Compl. ¶ 13. ) Whenever responding to the phone telephone telephone calls, Plaintiff experienced a pause lasting a few moments and over and over repeatedly said “hello” before being linked to a real time agent. (Compl. ¶ 16. ) Plaintiff asked that Defendant stop calling him because re payments beneath the Agreement are not yet due. (Compl. ¶ 17. ) Notwithstanding Plaintiff’s demand, Defendant allegedly made at the very least thirty more phone telephone telephone calls to Plaintiff from multiple telephone numbers. (Compl. ¶ 18. )
In 2019, Plaintiff filed a Complaint alleging that Defendant willfully and knowingly violated the Telephone Consumer Protection Act (“TCPA”) february. (Compl. ¶ 28. ) Plaintiff alleges that Defendant utilized an automatic phone dialing system (“ATDS”) in order to make phone phone calls and deliver texting to Plaintiff’s cellular phone without Plaintiff’s permission. (Compl. ¶¶ 25-26. ) Within the grievance, Plaintiff also raises claims for deliberate infliction of psychological distress and breach of agreement (collectively the “state legislation claims”). (Compl. ¶¶ 31, 39. ) Defendant now moves to dismiss the TCPA reason for action online payday loans Iowa for failure to convey a claim, and also to the level that movement is provided, Defendant contends that the Court should decrease to hold jurisdiction on the state legislation claims and dismiss the balance therefore regarding the grievance. (Mot. At 1. )
Whenever analyzing a grievance 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 into the light many favorable into the 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 to the presumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and they are inadequate to beat a movement to dismiss for failure to mention 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 mention a claim could be according to either (1) having less a cognizable appropriate theory or (2) insufficient facts to guide a cognizable appropriate claim. Balistreri v. Pacifica Police Dep’t, 901 F. 2d 696, 699 (9th Cir. 1990). “While a grievance attacked by a Rule 12(b)(6) movement doesn’t have detailed factual allegations, a plaintiff’s responsibility to give the ‘grounds’ of their ‘entitlement to relief’ requires significantly more than labels and conclusions, and a recitation that is formulaic of aspects of a reason for action will likely not do. ” Twombly, 550 U.S. At 555 (citations omitted). The issue must therefore include “sufficient factual matter, 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 though it hits a savvy judge that real evidence of those facts is improbable, and that ‘recovery is extremely remote and not likely. ‘” Twombly, 550 U.S. At 556 Scheuer that is(quoting v, 416 U.S. 232, 236 (1974)).