United States District Court, D. Oregon, Portland Division
MICHAEL KAISER and MARGARET J. LOEWEN, on behalf of themselves and others similarly situated, Plaintiffs,
CASCADE CAPITAL, LLC, and GORDON AYLWORTH & TAMI, P.C., Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.
25, 2017, Magistrate Judge John V. Acosta issued his Findings
and Recommendation  (“F&R”), in which he
recommended that the Court (1) deny Defendants' Motion to
Dismiss  pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction and (2)
grant in part and deny in part Defendants' Motion
pursuant to Rule 12(b)(6) for failure to state a claim.
particular, the Magistrate Judge recommended the Court grant
Defendants' Rule 12(b)(6) Motion as to Plaintiff Margaret
J. Loewen's claims under the Fair Debt Collection
Practices Act (FDCPA) §§ 1692d, 1692e(5), 1692e(9),
and 1692f(1); as well as Loewen's common-law intentional
infliction of emotional distress (IIED) claim. The Magistrate
Judge further recommended the Court deny Defendants' Rule
12(b)(6) Motion as to Loewen's claims under the FDCPA
§§ 1692e, 1692e(2); 1692e(10); 1692f. Moreover, the
Magistrate Judge recommended the Court find that the FDCPA is
not unconstitutional, deny Defendants' Motion to Strike
paragraph 18 of First Amended Complaint (FAC), and grant
Defendants' Motion to Make More Definite and
28, 2017, Loewen filed Objections  to the Magistrate
Judge's F&R, and, on June 30, 2017, Defendants filed
their own Amended Objections  to the
F&R. Defendants responded  to Loewen's
Objections and, in turn, Loewen responded  to
September 14, 2017, this Court directed the parties to
clarify the record as to the relationship between the claims
of Plaintiffs Kaiser and Loewen and for the Magistrate Judge
to consider whether, in light of that clarification, this
Court should proceed on the litigation of the Loewen's
claims while Kaiser's claims were stayed pending
December 19, 2017, the Magistrate Judge issued an Amended
F&R  in which he memorialized the parties'
clarification of the record as to the relationship between
Plaintiffs' respective claims and recommended the Court
proceed to consider Loewen's claims, including the
original F&R . No. party filed any objection to the
Magistrate Judge's Amended F&R . After review of
the record the Court agrees with the Magistrate Judge's
findings and recommendations contained in the Amended
F&R, and, therefore, the Court ADOPTS the Magistrate
Judge's Amended F&R  and proceeds to
consideration of the original F&R  together with the
parties' Objections thereto.
reasons that follow, the Court ADOPTS in part and DECLINES TO
ADOPT in part the Magistrate Judge's F&R . The
Court GRANTS in part and DENIES in part Defendants'
Motion to Dismiss  for Failure to State a Claim. The
Court denies Defendants' Motion insofar as it is based on
Rule 12(b)(1). The Court grants in part Defendants'
Motion insofar as it seeks dismissal of Plaintiff's FAC
pursuant to Rule 12(b)(6), but denies in part Defendants'
Rule (12)(b)(6) Motion to the extent that it seeks dismissal
of Loewen's claims with prejudice. The Court DENIES
Defendants' Motion to Strike and GRANTS Defendants'
Motion to Make More Definite and Certain.
Court, therefore, DISMISSES Loewen's FAC  without
prejudice pursuant to Rule 12(b)(6) with leave to amend in
the event that Loewen can allege in good faith facts
sufficient to address the pleading deficiencies identified in
this Opinion and Order and in those portions of the F&R
that the Court adopts.
magistrate judge makes only recommendations to the Court, to
which any party may file written objections. The Court is not
bound by the recommendations of the magistrate judge, but
retains responsibility for making the final determination.
The Court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendations as to which an
objection is made. 28 U.S.C. § 636(b)(1)(C). However,
the Court is not required to review, de novo or
under any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the F&R to
which no objections are addressed. See Thomas v.
Arn, 474 U.S. 140, 149 (1985); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While
the level of scrutiny with which the Court is required to
review the F&R depends on whether or not objections have
been filed, in either case, the Court is free to accept,
reject, or modify any part of the F&R. 28 U.S.C. §
and Loewen each object to the Magistrate Judge's F&R
on several bases. Accordingly, the Court considers the
parties' objections in turn.
Article III Standing
object to the Magistrate Judge's finding that Loewen has
standing to bring her FDCPA claims under Article III of the
United States Constitution.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) for lack of standing, a plaintiff must
have “(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1547 (2016) as revised (May 24,
2016). Plaintiff bears the burden of proof and must
“‘clearly . . . allege facts demonstrating'
each element.” Id. (quoting Warth v.
Seldin, 422 U.S. 490, 518 (1975)). An injury in fact is
one that is (a) concrete and particularized and (b) actual or
imminent. Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992). For an injury to be particularized it
“‘must affect the plaintiff in a personal and
individual way.'” Spokeo, 136 S.Ct. at
1548 (quoting Lujan, 504 U.S. at 560 n.1).
parties' dispute centers on whether Loewen's injury
was sufficiently “concrete” to confer Article III
standing. “A ‘concrete' injury must be
‘de facto'; that is, it must actually
exist.” Id. “‘Concrete' is
not, however, necessarily synonymous with
‘tangible.'” Id. at 1549. “In
determining whether an intangible harm constitutes injury in
fact, both history and the judgment of Congress play
important roles.” Id. Because “Article
III standing requires a concrete injury even in the context
of a statutory violation, ” a “bare procedural
violation” does not meet Article III standing
requirements. Id. at 1549-50. A sufficiently strong
risk of harm, however, can satisfy the requirement of
Spokeo, the Supreme Court concluded the Ninth
Circuit erred when it did not analyze the concreteness
requirement separately from the particularity requirement.
Id. at 1545. Accordingly, the Supreme Court remanded
to the Ninth Circuit for further analysis of the standing
issues in light of the Supreme Court's further
explanation of the concreteness requirement. Id. at
remand, the Ninth Circuit explained “while [a
plaintiff] may not show an injury-in-fact merely by pointing
to a statutory cause of action, the Supreme Court also
recognized that some statutory violations, alone, do
establish concrete harm.” Robins v. Spokeo,
Inc., 867 F.3d 1108, 1113 (9th Cir. 2017) (emphasis in
original). The Ninth Circuit adopted the standard articulated
by the Second Circuit: “‘[A]n alleged procedural
violation [of a statute] can by itself manifest concrete
injury where Congress conferred the procedural right to
protect a plaintiff's concrete interests and where the
procedural violation presents a risk of real harm to that
concrete interest.'” Id. (quoting
Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir.
2016)). Pursuant to that standard, the Ninth Circuit assessed
the plaintiff's allegations under the following
framework: “(1) whether the statutory provisions at
issue were established to protect his concrete interests (as
opposed to purely procedural rights), and if so, (2) whether
the specific procedural violations alleged in this case
actually harm, or present a material risk of harm to, such
Magistrate Judge found “Congress elevated to the status
of a legally cognizable injury violation of a consumer's
‘right not to be the target of misleading debt
collection communications, '” but noted the
“misleading communication must be material.”
F&R , at 9 (quoting Tourgeman v. Collins Fin.
Servs., Inc., 755 F.3d 1109, 1116 (9th Cir. 2014)). The
Magistrate Judge found the allegations in this case met that
standard and, therefore, concluded Loewen had Article III
standing to pursue her FDCPA claims. Although the Court finds
the standard that the Magistrate Judge applied to be similar
to the standard the Ninth Circuit articulated in
Robins (which the Ninth Circuit issued after the
Magistrate Judge issued the original F&R), the Court
comments additionally only to make clear that Loewen's
allegations also meet the specific standard articulated in
factual allegations relevant to her FDCPA claims are
relatively straightforward. The Magistrate Judge summarized
those allegations as follows:
Loewen bought a car from McMullin Chevrolet Pontiac Inc.
(“McMullin”) on December 6, 2007. (First. Am.
Compl. (“FAC”), ECF No. 14, ¶ 16.) Loewen
signed a retail installment contract that stated McMullin
would sell the contract to Drive Financial Services.
(Id.) Sometime before January 31, 2010, Loewen
defaulted on the contract and the car was repossessed.
Cascade hired GAT to collect debts Cascade had previously
purchased. (FAC ¶ 15.) On August 3, 2015, GAT
sent Loewen a collection letter for payment of the remaining
$3, 325.16 of her retail installment contract. (FAC ¶
17.) GAT implied Cascade would file a lawsuit if Loewen did
not pay her debt. (Id.)
On October 29, 2015, Defendants filed a lawsuit against
Loewen in state court to collect on the debt. (FAC ¶
19). Loewen sought the help of a bankruptcy attorney because
she feared her government benefits would be taken away.
(Id.) The bankruptcy lawyer dissuaded Loewen from
filing bankruptcy because Loewen was “judgment
proof.” (Id.) The bankruptcy attorney
contacted Defendants on December 21, 2015. (Id.) On
February 25, 2016, Defendants dismissed the lawsuit against
Loewen subsequently sued Defendants claiming that
Defendants' filing of a time-barred lawsuit was a
violation of the FDCPA. (FAC ¶ 27-28.) Loewen further
claims that the filing of the lawsuit caused her anxiety.
(FAC ¶ 20). Loewen claims that Defendants production of
a “packet of papers” regarding the debt caused
her additional anxiety. (FAC ¶ 18.)
F&R , at 2-3. Loewen contends Defendants'
communications to her were materially misleading because the
statute of limitations had run on Loewen's debt and,
therefore, it was ...