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Buser v. Asset Recovery Group, Inc.

United States District Court, D. Oregon

February 21, 2014

MISTY BUSER, Plaintiff,
v.
ASSET RECOVERY GROUP, INC., Defendant/Third-Party Plaintiff, JENNIFER O'NEAL, Third-Party Defendant.

Joshua R. Trigsted, Trigsted Law Group, P.C., 5200 SW Meadows Road, Suite 150, Lake Oswego, OR 97035. Attorney for Plaintiff and Third-Party Defendant.

Jeffery I. Hasson, Davenport & Hasson, LLP, 12707 NE Halsey Street, Portland, OR 97230. Attorney for Defendant and Third-Party Plaintiff.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Plaintiff Misty Buser ("Buser") filed the complaint in this action against Defendant Asset Recovery Group, Inc. ("Asset"), alleging violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. Specifically, Buser alleges that Asset communicated with a third party other than in a manner prescribed by 15 U.S.C. § 1692b, by calling Buser's phone number and disclosing that the call was about Buser's debt without adequately attempting to determine the identity of the person answering the phone. Compl. ¶ 9. Buser alleges that Jennifer O'Neal ("O'Neal") was the third party who answered Buser's phone. Id.

On November 20, 2013, Asset filed its Third-Party Complaint (Dkt. 7) against O'Neal for indemnification based on fraud, alleging O'Neal fraudulently represented to Asset that O'Neal was Buser. O'Neal now moves the Court to dismiss Asset's Third-Party Complaint on the grounds that: (1) the Court lacks subject matter jurisdiction over the claim; (2) the Third-Party Complaint fails to state a claim for which relief can be granted; and (3) the claim is not yet ripe. For the reasons that follow, the Court DENIES O'Neal's motion.

STANDARDS

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013). As such, a court is to presume "that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of "subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed.R.Civ.P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either "facial" or "factual." See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. "A jurisdictional challenge is factual where the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'" Pride v. Correa, 719 F.3d 1130, 1133 n.6 (2013) (quoting Safe Air for Everyone, 373 F.3d at 1039)). When a defendant factually challenges the plaintiff's assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A factual challenge can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency. Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996).

B. Motion to Dismiss for Failure to State a Claim

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Baca, 652 F.3d at 1216. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

DISCUSSION

A. Subject Matter ...


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