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Kost v. Scott Lowery Law Office PC

United States District Court, D. Arizona

July 10, 2014

Michael Kost, Plaintiff,
v.
Scott Lowery Law Office PC, et al., Defendants.

ORDER

DIANE J. HUMETEWA, District Judge.

Defendants Scott Lowery Law Office, P.C. ("SLLO") and CACH, LLC ("Cach") have filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Doc. 14.) The motion is fully briefed and no party has requested oral argument. The Court will deny the Defendants' motion.

I. Background.

SLLO contacted Plaintiff by phone on August 2, 2013 and August 14, 2013, claiming to have been retained by Cach to collect a $19, 687.66 debt owed by Plaintiff. Doc. 1, ¶¶ 17-18. Plaintiff also received collection notices in the mail. Id., ¶ 21. Soon thereafter, Plaintiff sent SLLO a letter that included a written dispute, a validation of debt request, and a demand to cease all future telephone communications. Id., ¶ 19. The United States Postal Service confirmed that this correspondence was received on August 20, 2013. Id. Nevertheless, on August 21, 2013, SLLO contacted Plaintiff's parents by phone and spoke to Plaintiff's elderly father. Id., ¶ 20. SLLO's agent informed Plaintiff's father that Plaintiff was in trouble, that this trouble might affect Plaintiff's father, and that Plaintiff needed to contact SLLO immediately. Id. Plaintiff's father feared that Plaintiff's personal information had been compromised. As a result, he panicked and drove fifty miles to see his son. Id.

On August 28, 2013, Plaintiff received a letter from SLLO repeating claims that had already been asserted in a previous collection notice. Id., ¶ 21. On September 6, 2013, SLLO again contacted Plaintiff by phone in an attempt to collect the debt. Id., ¶ 22. Plaintiff asked the agent why SLLO was refusing to honor Plaintiff's request to cease all telephone communications contained in the August 20, 2013 letter. Id. The agent acknowledged receipt of the letter, but stated that no request to cease telephone communication had been documented. Id. As a result, Plaintiff sent a second letter to SLLO demanding a stop to all future telephone communication. Id., ¶ 23. The United States Postal Service confirmed receipt of the second letter on September 9, 2013. Id.

Plaintiff received correspondence from SLLO on November 26, 2013 containing the following documents: duplicate copies of documents already provided on September 3, 2013; a bill of sale between Bank of America and Cach; and two un-itemized Bank of America credit card statements from October 2011 and February 2012.

Plaintiff instituted this action on January 27, 2014, asserting 25 claims, including violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et. seq., the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, the Colorado Fair Debt Collection Practices Act ("CFDCPA"), C.R.S. § 12-14-101, et. seq., and the Arizona Collection Agency statute ("ACA"), A.R.S. § 32-1001, et. seq.

Plaintiff's complaint alleges that Phillip Scott Lowery is a licensed attorney (Doc. 1, ¶ 13) and that SLLO is a valid Colorado corporation (Doc. 1, ¶ 7).

II. Legal Standard.

In resolving a motion for judgment on the pleadings, the Court inquires whether the complaint at issue contains "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, 678 (2009) (internal quotation marks and citation omitted); Cafasso v. General Dynamics C4 Sys., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (finding Iqbal applies to Rule 12(c) motions because Rule 12(b)(6) and Rule 12(c) motions are functionally equivalent). The Court may find a claim plausible when a plaintiff pleads sufficient facts to allow the Court to draw a reasonable inference of misconduct, but the Court is not required "to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).

III. Analysis.

A. Federal Claims.

Defendants argue that Plaintiff's federal claims should be dismissed because "Defendants have offered the Plaintiff full relief in response to his allegations, thereby mooting his claims and extinguishing any interest he has in the litigation." Doc. 14 at 1, 6-7. Plaintiff argues that Defendants' Rule 68 offer of judgment did not offer him all of the relief sought in his complaint. Doc. 15 at 10. Plaintiff disputes Defendants' assertion that "it is undisputed that [Plaintiff] could not be awarded more than the amount offered to him by the Defendants." Doc. 14 at 7. Because a Rule 68 offer of judgment cannot moot a case in the Ninth Circuit, the parties' dispute about whether Defendants offered Plaintiff all of the relief he sought in the complaint is immaterial.

Defendants cite no authority for their argument that an unaccepted Rule 68 offer renders Plaintiff's claim moot. Many courts have addressed Defendants' argument and a clear majority of circuits have accepted it. See Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 371 (4th Cir. 2012); Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1243 (10th Cir. 2011); O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 574 (6th Cir. 2009); Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 (5th Cir. 2008); Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004); Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991). The Ninth Circuit, however, has unambiguously rejected Defendants' argument and held that an unaccepted Rule 68 offer that would have fully satisfied a plaintiff's claim does not render that claim moot. Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 953-55 (9th Cir. 2013). Thus, ...


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