United States District Court, D. Oregon
CARLTON CHASE, ERIC MACCARTNEY, and LUANNE MUELLER, individually and on behalf of others, Plaintiffs,
GORDON, AYLWORTH & TAMI, P.C. and VISION INVESTIGATIVE SERVICE, Defendants.
Michael Fuller, OlsenDaines, Kelly D. Jones, and Matthew
Sutton, Of Attorneys for Plaintiffs.
Xu, Xin Xu Law Group, and Matthew R. Aylworth, Daniel N.
Gordon, P.C., Of Attorneys for Defendants.
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
Carlton Chase (“Chase”), Eric MacCartney
(“MacCarthy”), and Luanne Mueller
(“Mueller, ”) (collectively,
“Plaintiffs”) bring this putative class action
against Defendants Gordon, Aylworth & Tami, P.C.
(“GAT”) and Vision Investigative Services
“Defendants”). GAT is an Oregon law firm, and
Vision is a wholly owned subsidiary of GAT. Plaintiffs allege
that GAT violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, and
Oregon's Unlawful Trade Practices Act
(“UTPA”), Or. Rev. Stat. §§
646.605-656. Plaintiffs also allege against both Defendants a
claim for common law unjust enrichment. Defendants have moved
to dismiss all claims asserted by Plaintiffs under Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure
and to dismiss Plaintiffs' state law claims (both
statutory and common law) under Oregon's anti-SLAPP
statute, Or. Rev. Stat. § 31.150. ECF 19. United States
Magistrate Judge John Acosta issued Findings and
Recommendations, recommending that this Court dismiss all
claims based on both the Rooker-Feldman doctrine and
issue preclusion and declining to address Defendants'
anti-SLAPP arguments. ECF 37. Plaintiffs timely objected,
requiring this Court to give this matter de novo
review. Defendants timely responded, and the Court
heard oral argument. For the reasons stated below, the Court
declines to adopt Judge Acosta's Findings and
Recommendations and denies Defendants' motion to dismiss
under Rules 12(b)(1) and 12(b)(6). This case is returned to
Judge Acosta, who may consider Defendants' anti-SLAPP
arguments asserted against Plaintiffs' state law claims.
Motion to Dismiss for Lack of Subject Matter
courts are courts of limited jurisdiction. Gunn v.
Minton, 568 U.S. 251, 256 (2013) (quotation marks
omitted). 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); see
also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir.
2015) (noting that when a court lacks subject-matter
jurisdiction, meaning it lacks the statutory or
constitutional power to adjudicate a case, the court must
dismiss the complaint, even sua sponte if
motion to dismiss for lack of subject matter jurisdiction
brought under Rule 12(b)(1) 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 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 (9th Cir. 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) (citation and quotation marks
Motion to Dismiss for Failure to State a Claim
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). The court must draw all reasonable
inferences from the factual allegations in favor of the
plaintiff. Newcal Indus. 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).
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.” Starr, 652 F.3d at 1216. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Mashiri v. Epstein Grinnell & Howell, 845 F.3d
984, 988 (9th Cir. 2017) (quotation marks omitted).
a law firm based in Eugene, Oregon. Among its other clients,
GAT represents creditors in debt collection lawsuits. In
2017, GAT filed three separate lawsuits in Oregon state court
against Chase, MacCartney, and Mueller, the named Plaintiffs
in this case. GAT filed these state court collection actions
on behalf of its client Midland Funding LLC
(“Midland”). In the state court actions, Midland,
as the state court plaintiff, sought to collect on delinquent
accounts owed by Chase, MacCarthy, and Mueller. The
Plaintiffs here, who were the defendants in the state court
collection actions, each received service of a state court
summons and complaint. Each state court complaint alleged
that the named defendant owed certain money to a creditor and
that Midland purchased the defendant's relevant account
or accounts from that creditor. In each state complaint,
Midland sought the amount of the debt owed plus “costs
and disbursements incurred herein.”
a wholly owned subsidiary of GAT, served the defendants in
the state collection actions (the named Plaintiffs here) by
certified mail, return receipt requested, restricted
delivery. The defendants in the state collection actions
declined to appear in the state lawsuits, and the state court
entered default judgments against them. After each entry of
default, GAT filed a Statement of Costs with the relevant
state court, but GAT did not serve those defendants with
copies of the Statement of Costs. In each Statement of Costs,
GAT requested, in addition to the filing fee, a fee of $45
for “Service Fees (expedited service).” Further,
each Statement of Costs contained the following affirmative
representation by GAT: “Expedited Service was
necessary and the service fees set forth below
[$45.00] reflect the actual costs of the
service.” (Emphasis added.) The relevant state court
allowed the requested costs, and each state court defendant
(the named Plaintiffs here) ultimately paid in full the
judgments against them, including the $45 fee for expedited
service. Plaintiffs in this action contend that expedited
service was not necessary, that $45 was not the actual cost
of service, and that the fact that Vision was a wholly owned
subsidiary of GAT was not disclosed.
GAT and Vision, argue in their motion to dismiss that they
already “litigated” the service fee issue in
state court when the state court judge (or, perhaps, a clerk
of the court) approved the Statement of Costs. Defendants
further argue that when the named Plaintiffs here, Chase,
MacCarthy, and Mueller, failed to appear in state court, they
waived their rights to receive notice of the Statement of
Costs as well as their rights to object in state court to the
requested service fees. Thus, according to GAT and Vision,
this Court lacks jurisdiction under the
Rooker-Feldman doctrine and, further, issue
preclusion bars Plaintiffs' claims.
The Rooker-F ...