Nichols v. Byrd

• Decision Date: 13 June 2006
• Docket Number: No. 3:05-CV-0485-ECR-VPC.,3:05-CV-0485-ECR-VPC.
• Citation: 435 F.Supp.2d 1101
• Parties: Robert NICHOLS and Kristina Nichols, Plaintiffs, v. William J. BYRD, Defendant.
• Court: U.S. District Court — District of Nevada

435 F.Supp.2d 1101

Robert NICHOLS and Kristina Nichols, Plaintiffs, v. William J. BYRD, Defendant.

No. 3:05-CV-0485-ECR-VPC.

United States District Court, D. Nevada.

June 13, 2006.

Kristina and Robert Nichols, Roderic A. Carucci, Carucci & Thomas, Thomas R. Brooksbank, Brooksbank & Associates, Reno, NV, for Plaintiffs.

William J. Byrd, Jack G. Angaran and Whitney J. Selert, Georgeson, Thompson & Angaran, Chtd., Reno, NV, for Defendant.

ORDER

EDWARD C. REED, JR., District Judge.

I. Procedural Background

On August 31, 2005, Plaintiffs Robert and Kristina Nichols ("Plaintiffs" or "the Nichols") filed a Complaint (# 2) alleging violations of the Fair Debt Collection Practices Act ("FDCPA") and Nevada law by Defendant William J. Byrd ("Defendant" or "Byrd"). On October 11, 2005, Defendant filed a Motion to Dismiss (# 6), which Plaintiffs opposed (# 8) on October 21, 2005. Defendant replied (# 9) to the Opposition (# 8) on October 31, 2005.

For the reasons stated below, Defendant's motion will be GRANTED.

II. Factual Background

On July 31, 2003, Plaintiffs submitted thirty days notice of their intent to vacate an apartment located at 6060 Silver Lake Road in Reno, which they had been renting from ERGS Property Management ("ERGS"). The Nichols state they moved into a new home in Storey County, Nevada, directly after vacating the apartment in early September. On October 3, 2003, ERGS issued a bill for damage and unpaid rent in the amount of $498.53. When the bill was not paid, ERGS assigned the debt to Collection Services of Nevada ("CSN"). On November 6, 2003, CSN sent a computer-generated validation notice¹ to the Silver Lake Road address. The Nichols claim to have never received this notice and Defendant claims it was not returned to CSN. Plaintiffs claim that they did receive subsequent documents from CSN, including verification of the debt, and Plaintiffs communicated with CSN regarding these documents, but Plaintiffs do not specify the address to which the documents were sent. (Pls.' Opp'n (# 8) 3; Def.'s Mot. (# 6), Exh. G 2, Exh. J.) Defendant's exhibits indicate that CSN sent a notice regarding a potential lawsuit to 47 Av. De La Argent in Sparks² on May 14, 2004, and a letter verifying the debt to the same address on May 17, 2004. These documents appear to match the description of the documents Plaintiffs claim to have received.

CSN hired Defendant Byrd to initiate litigation against Plaintiffs. Defendant filed a complaint on December 10, 2004, in the Justice Court of Sparks Township. Defendant states that he determined Plaintiffs' last known address was in Sparks by reviewing CSN's investigation of Plaintiffs' last known address and U.S. Postal Service change of address forms.

Plaintiffs' Complaint (# 2) alleges that Defendant Byrd violated two provisions of the FDCPA, resulting in damages to Plaintiffs. First, they allege Defendant violated 15 U.S.C. § 1692g by failing to provide a validation notice within five days of his initial communication with Plaintiffs regarding the debt. Second, Plaintiffs allege that Defendant violated 15 U.S.C. § 1692i by filing the lawsuit in the wrong court.

III. Discussion

A.Fed.R.Civ.P. 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) will only be granted if "it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir.1996). On a motion to dismiss, "we presum[e] that general allegations embrace those specific facts that are necessary to support the claim." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (alteration in original). Moreover, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party." In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir.1996) (citation omitted).

Although courts generally assume the facts alleged are true, courts do not "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Accordingly, "[c]onclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss." In re Stac Elecs., 89 F.3d at 1403 (citation omitted).

Review on a motion pursuant to Fed. R.Civ.P. 12(b)(6) is normally limited to the complaint itself. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). If the district court relies on materials outside the pleadings in making its ruling, it must treat the motion to dismiss as one for summary judgment and give the nonmoving party an opportunity to respond. Fed.R.Civ.P. 12(b); see United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). A party represented by counsel has constructive notice that a motion to dismiss may be treated as a motion for summary judgment where exhibits outside the pleadings have been submitted. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency, 611 F.Supp. 110, 113 n. 7 (D.Nev.1985) (citing Grove, Riddle, & Riddle v. Mead School Dist., 753 F.2d 1528, 1532-33 (9th Cir.1985)) aff'd in part, vacated in part, reed in part on other grounds by 911 F.2d 1331 (9th Cir.1990).

Here, Defendant has attached and referred to exhibits to his motion (# 6), and Plaintiffs have responded to those arguments and attached exhibits of their own, thus indicating notice of potential treatment as a motion for summary judgment. While the exhibits offered by Plaintiffs only support their legal arguments rather than any factual bases, Plaintiffs do not challenge the validity of Defendant's documents, nor do they offer any basis to demonstrate that they were unable to offer evidence to contradict Defendant's evidence, other than a vague reference to discovery not having been completed. Therefore, we will treat Defendant's motion (# 6) as one for summary judgment.

Summary Judgment Standard

Summary judgment allows courts to avoid unnecessary trials where no material factual dispute exists. Nw. Motorcycle Ass'n v. U.S. Dep't. of Agric., 18 F.3d 1468, 1471 (9th Cir.1994). The court must view the evidence and the inferences arising therefrom "in the light most favorable to the nonmoving party," Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996), and should award summary judgment where no genuine issues of material fact remain in dispute and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Judgment as a matter of law is appropriate where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party. Fed.R.Civ.P. 50(a).

The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing that there exists a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the parties may submit evidence in an inadmissible form — namely, depositions, admissions, interrogatory answers, and affidavits — only evidence which might be admissible at trial may be considered by a trial court in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c); Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181 (9th Cir.1988).

In deciding whether to grant summary judgment, a court must take three necessary steps: (1) it must determine whether a fact is material; (2) it must determine whether there exists a genuine issue for the trier of fact, as determined by the documents submitted to the court; and (3) it must consider that evidence in light of the appropriate standard of proof. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Summary Judgment is not proper if material factual issues exist for trial. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir.1999). "As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputes over irrelevant or unnecessary facts should not be considered. Id. Where there is a complete failure of proof on an essential element of the nonmoving party's case, all other facts become immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Summary judgment is not a disfavored procedural shortcut, but rather an integral part of the federal rules as a whole. Id.

1. 15 U.S.C. § 1692g — Validation Notices

Plaintiffs allege that Defendant violated FDCPA § 1692g by failing to provide a validation notice prior to his filing the lawsuit in December of 2004. Section 1692g(a) provides in pertinent part:

[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written [validation] notice containing [certain pieces of information pertaining to the debt and the debtor's rights].

Plaintiffs argue that the summons they received was Defendant's "initial communication" according to § 1692g and, therefore, Defendant was required by the statute to provide a validation notice. It is undisputed by the parties that CSN, which had hired Defendant to pursue the lawsuit, had sent a validation notice within five days of its initial communication in November of 2003.³ Thus, the main...