United States District Court, D. Oregon
Michael Fuller, Olsen Daines, PC, Portland, Oregon, Attorney for plaintiff.
James M. Barrett, Daniel L. Boyer, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Portland, Oregon,
Bonnie L. Martin, admitted pro hac vice Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, Indiana. Attorneys for defendant.
OPINION AND ORDER
ANN AIKEN, Chief Judge.
Plaintiff Jeffrey Lee Hunt filed a second amended complaint ("SAC") against defendant Sallie Mae, Inc., alleging a violation of the Oregon Unlawful Debt Collection Practices Act ("OUDCPA"), Or. Rev. Stat. §§ 646.639-646.656, and a common law claim for invasion of privacy based on an intrusion upon seclusion. Defendant moves to dismiss under Fed.R.Civ.P. 12(b) (6). For the reasons discussed below, defendant's motion is granted and this case is dismissed.
On May 6, 2010, plaintiff executed a Federal Direct Stafford/Ford Loan Application and Master Promissory Note (the "Promissory Note") for student loans under the William D. Ford Federal Direct Loan Program. Def.'s Mem. in Supp. of Mot. Dismiss 2. Under the terms of the Promissory Note, plaintiff agreed to repay the loans, plus interest and other charges and fees. Id . Defendant is the loan servicer for plaintiff's loans.
Beginning sometime in 2011, plaintiff stopped making his student loan payments to defendant and defaulted on his loans. SAC ¶¶ 9-10. Plaintiff hired an attorney to represent him with regard to his student loan debt and provided notice to defendant of the representation. Id. at ¶¶ 11-12. Plaintiff alleges defendant then began to harass him by calling, writing, and emailing him multiple times a day attempting to collect on the loans. Id. at ¶¶ 13-14. Plaintiff alleges he repeatedly told defendant it was harassing him and requested defendant stop contacting him directly, but defendant continued. Id. at ¶¶9116-17.
On March 22, 2013, plaintiff filed this action. Id. at ¶ 24. Plaintiff alleges after defendant received notice of this lawsuit, it continued to harass him and also contacted his mother and a relative in attempt to collect from him. Id. at ¶¶ 25-30. On May 10, 2013, plaintiff filed an amended complaint. Id. at ¶ 31. Plaintiff alleges defendant continued to harass him and also contacted his son and daughter multiple times in further attempts to collect on the loans. Id. at ¶¶ 32-33. On June 24, 2013, plaintiff filed a motion for preliminary injunction which this Court denied as moot, accepting defendant's representation that it had ceased all contact with plaintiff. This Court, however, granted plaintiff leave to file a renewed motion for preliminary injunction, should defendant reinitiate contact with plaintiff or his family during this case.
On December 2, 2013, plaintiff filed his SAC alleging a violation of the OUDCPA and a common law claim for invasion of privacy based on an intrusion upon seclusion. Id. at TT 41-52. Defendant moves to dismiss plaintiff's SAC on the grounds that both of plaintiff's claims are preempted. Def.'s Mot. Dismiss 2.
STANDARD OF REVIEW
Where the plaintiff "fails to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011).
The Higher Education Act ("HEA") of 1965, 20 U.S.C. §§ 1001-1155, was passed "to keep the college door open to all students of ability, regardless of socioeconomic background." Chae v. SLM Corp. , 593 F.3d 936, 938 (9th Cir. 2010) (internal quotation omitted). The HEA established the Guaranteed Student Loan ("GSL") program, 20 U.S.C. §§ 1071-1084-4, later renamed the Federal Family Education Loan Program ("FFELP"). Id. at 938 ...