Opinion
3:16-cv-00733-JR
10-02-2024
KIRK NYBERG and TRISHA SPRAYBERRY, on behalf of themselves and others similarly situated, Plaintiffs, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE
Plaintiffs Kirk Nyberg and Trisha Sprayberry bring this putative class action against defendant Portfolio Recovery Associates, LLC (“PRA”). PRA now moves to partially dismiss plaintiffs' first amended complaint (“FAC”) and strike certain class allegations. For the reasons stated below, PRA's motion should be granted.
BACKGROUND
Plaintiffs initiated this Fair Debt Collection Practices Act (“FDCPA”) case in April 2016. In particular, plaintiffs (who were Oregon residents at all relevant times) alleged they each obtained Capital One credit cards with underlying card holder agreements containing Virginia choice of law provisions. Plaintiffs subsequently defaulted on their accounts and PRA began collecting the debt. This lawsuit emanates from the fact that PRA then pursued “Account Stated” claims in state court more than three years after default, in violation of Virginia's statute of limitations. See Compl. ¶ 42 (doc. 1) (“PRA applies the Oregon six year limitation period to determine whether the collection lawsuits are timely filed rather than the shorter Virginia limitation”); see also id. at ¶ 48 (“[a]sserting an account stated theory of liability on a credit card debt that shifts the burden of proof that PRA would otherwise have if it claimed a breach of the cardholder agreement is a violation of [the FDCPA]”).
On April 10, 2017, this case was stayed to allow for the resolution of parallel federal and state proceedings - i.e., Nyberg v. Portfolio Recovery Assocs., LLC (“Nyberg I”) and Portfolio Recovery Assocs., LLC, v. Sanders (“Sanders”), respectively. On September 26, 2023, the parties notified the Court that the related litigation was resolved, and the stay was lifted.
On November 22, 2023, plaintiffs filed the FAC, realleging claims under the FDCPA and adding a claim under Oregon's Unfair Trade Practices Act (“UTPA”). Specifically, plaintiffs allege six counts pursuant to the FDCPA for: (1) “attempt[ing] to collect a debt by filing a collection lawsuit and asserting a sham claim for account stated that falsely alleges the consequence of a cardholder's failure to dispute the billing statements sent by a credit issuer”; (2) “[a]sserting an account-stated theory of liability . . . when the cardholder has a complete defense to that liability, such as the claim is barred by Virginia's three-year statute of limitations that a cardholder would assert against the only competent claim, which was for breach of the operative credit card agreement”; (3) “[a]sserting a sham account stated theory of liability to collect a credit card debt that fails [because] the success of the claim depends on PRA's ability to take advantage of the lack of legal acumen of the consumers it sues or their inability to obtain competent counsel to mount a defense”; (4) making “pre-litigation demands [claiming] the debt could be settled and that asserted the account had been transferred to the ‘litigation department' for payment and reporting on credit reports of a greater amount than demanded in the collection lawsuit”; (5) “attempt[ing] to use the failure of Nyberg to respond to a dunning letter sent by PRA that contained the notice of his right to dispute the debt pursuant to 15 U.S.C. § 1692g as an admission of liability on the debt in a judicial proceeding”; and (6) “attempt[ing] to include a right to attorney fees in the arbitration award.” FAC ¶¶ 134-40 (doc. 78).
On January 5, 2024, defendant filed the present motion to dismiss. Briefing was completed in regard to that motion on March 18, 2024.
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 the purposes for the 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). Regardless, bare assertions 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, 680-81 (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. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
PRA contends that “Count Two of Plaintiffs' [FDCPA claim] is barred by the decision in [Sanders],” such that dismissal with prejudice is warranted. Def.'s Partial Mot. Dismiss 1, 3, 15 (doc. 81). As a result, PRA maintains plaintiffs' proposed “‘Kimber' and ‘Account Stated' classes [are] overbroad and therefore improper, because they are comprised completely of class members who have no claims against PRA.” Id. at 1. Additionally, PRA argues plaintiffs' UTPA claim “is barred by Oregon's absolute litigation privilege, is time-barred, and fails as a matter of law because Plaintiffs did not incur an ascertainable loss.” Id.
The “Kimber Class” includes “all individuals with Oregon addresses, regarding whom the defendant sued or caused to be sent a letter, seeking to collect non-business Capital One Bank USA credit card debts, subject to cardholder agreements that contain a Virginia choice of law, and for which no payment has been made on the individual debts for over three years after default, and of which suit or demand was sent to the individuals during the period of April 28, 2015 or after.” FAC ¶ 146 (doc. 78). The “Account Stated Class” includes “all individuals with Oregon addresses, whom defendant sued, seeking to collect non-business Capital One Bank USA credit card debts, subject to cardholder agreements that contain a Virginia choice of law, and in which the collection lawsuit alleged that the individuals were liable to defendant under the theory of ‘Account Stated' and were served on the individuals during the period of April 28, 2015 or after.” Id. at ¶ 147.
I. FDCPA and Class Allegations
As denoted above, plaintiffs' count two proceeds from the premise that a breach of the underlying card holder agreement is the “only” claim available to PRA, which is time barred under the Virginia choice of law provision and corresponding three-year statute of limitations. FAC ¶ 135 (doc. 78).
Although plaintiffs make myriad arguments in opposition,it is clear from both Sanders and Nyberg I that dismissal of count two is warranted. Sanders arose out of a lawsuit filed by PRA “to recover a credit card debt” originally incurred to Capital One, which PRA pursued “under a common-law claim for an ‘account stated.'” Sanders, 366 Or. 355, 357, 462 P.3d 263 (2020). The plaintiff in Sanders asserted that PRA's “claim should be governed by Virginia law and that the claim was untimely under Virginia's three-year statute of limitations . . . [in fact] Sanders contended [his cardholder agreement with Capital One containing a Virginia choice of law provision] gave Virginia the only relevant connection to the claim” Id. at 359-60.
For instance, plaintiffs assert “PRA willfully misconstrues Count Two [which] alleges that PRA's account stated claim is a sham that PRA can never prove . . . It does not matter whether Oregon's limitation applies to the sham claim because it is a sham.” Pls.' Resp. to Partial Mot. Dismiss 1 (doc. 90). However, count two never uses the word “sham” (unlike some of plaintiffs' other FDCPA counts). FAC ¶ 135 (doc. 78). And the fact that Nyberg individually prevailed in related proceedings because there was “no evidence PRA owned the debt or the account was stated” does not mean count two states a viable claim or that “PRA [is pursuing] outlawed debt debt collection” in relation to all putative class members. Pls.' Resp. to Partial Mot. Dismiss 9 (doc. 90); see also Def.'s Reply to Partial Mot. Dismiss 2 (doc. 93) (“[t]he merits are irrelevant when resolving a motion to dismiss under Rule 12(b)(6)”). And plaintiffs' reliance on new legal theories first asserted via their response - i.e., that an “[i]mplied in law account stated is an equitable claim” subject to a two-year statute of limitations under Oregon law and, if PRA's claim is an equitable claim and contractual in nature, then it “is barred by the doctrine of concurrent remedies” - cannot cure the FAC's deficiencies. Pls.' Resp. to Partial Mot. Dismiss 10-12 (doc. 90); see also Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (when reviewing a Rule 12(b)(6) motion, “a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss”) (emphasis in original; citation omitted).
The trial court ruled against the plaintiff, agreeing with PRA that Oregon law governed its claim for account stated, which was timely under Oregon's six-year statute of limitations for claims sounding in contract. Id. at 360. The Oregon Court of Appeals affirmed that ruling (albeit on different grounds) but “reversed the grant of summary judgment to [PRA].” Id. at 360-61.
As framed by the Oregon Supreme Court, the issue on appeal was “how Oregon's choice-of-law principles resolve a conflict between competing state statutes of limitations when the relevant substantive law of the two states is the same.” Id. at 357. Although the Oregon Supreme Court disagreed with the Oregon Court of Appeals' construction of Oregon's statute for resolving conflict-of-law issues in contract disputes and took the opportunity to clarify how that statutory framework should be applied, it ultimately affirmed the intermediate court's decision that Oregon's six-year statute of limitations governed PRA's account stated claim. Id. at 361-75.
In so finding, the Oregon Supreme Court concluded that: Oregon's common law conflict-of-law principles applied “when there is no apparent conflict with the applicable Oregon law . . . to choose the state on whose law the claim is substantively based”; and “both Oregon and Virginia have a relevant connection with the transaction or the parties.” Id. at 362-65, 371 (citation and internal quotations omitted). That is, where the plaintiff “points to no difference between the account-stated law of Virginia and the account-stated law of Oregon that could create a conflict of consequence to the substance of [PRA's] claim . . . an Oregon court should do what comes naturally and apply Oregon law to resolve the substance of the account-stated claim.” Id. at 375 (citation and internal quotations omitted).
In Nyberg I, Nyberg alleged “that Defendant's state court collection action violated the FDCPA by asserting a claim for account stated rather than a claim for breach of the cardholder agreement between Plaintiff and Capital One.” Nyberg I, 2017 WL 1055962, *1 (D. Or. Mar. 20, 2017), aff'd, 2023 WL 4363119 (9th Cir. July 6, 2023). In granting PRA's summary judgment motion and denying Nyberg's, the Honorable Paul Papak stated:
I agree with Defendant that under the alleged facts here, Oregon courts would permit a debt collector to assert a claim for account stated . . . Plaintiff argues that the account stated claim is governed by Virginia law, which has a three-year statute of limitations for contract claims, rather than Oregon's six-year statute of
limitations. Plaintiff defaulted on his Account with Capital One on July 19, 2010, and Defendant filed the State Court Action on June 25, 2014.
I agree with Defendant that the choice of law provision in the cardholder agreement does not apply to the claim for account stated, which is not based on the cardholder agreement. An action for account stated is independent of the underlying agreement between the parties. Meridianal Co. v. Moeck, 121 Or. 133, 138, 253 P. 525, 526 (1927). Because Oregon substantive law applies to the claim for account stated, the Oregon statute of limitations applies. See Fields v. Legacy Health Sys., 413 F.3d 943, 951 (9th Cir. 2005) (interpreting Or. Rev. Stat.§ 12.430 on choice of law, holding that this court first determines which state's substantive law applies to the claim at issue, and then applies that state's statute of limitations to the claim) . . . I conclude that Defendant's complaint in the State Court Action did not violate FDCPA[.]Id. at *3-4.
In affirming Judge Papak's decision post-Sanders, the Ninth Circuit explained:
Nyberg's argument that the account-stated claim was legally baseless and therefore in violation of the FDCPA also fails. A claim for account stated was recognized in Oregon law at the time PRA filed its complaint. See, e.g., Sunshine Dairy v. Jolly Joan, 380 P.2d 637, 638 (Or. 1963); see also Portfolio Recovery Assocs., LLC v. Sanders, 462 P.3d 263, 275 (Or. 2020) (en banc) (subsequently confirming the viability of account-stated claims and citing cases) . . .
Nor was PRA's collection action time-barred. Cf. Kaiser v. Cascade Cap., LLC, 989 F.3d 1127, 1130 (9th Cir. 2021) (filing a lawsuit to collect debts that are outside the applicable statute of limitations violates the FDCPA). Because PRA's action was filed in Oregon while Nyberg's credit-card agreement was governed by Virginia law, we apply Oregon conflict-of-laws rules to determine whether the relevant Oregon or Virginia statute of limitations applied to the action. SeeSanders, 462 P.3d at 267, 274. Since both states have a relevant connection to the dispute and neither party has identified a substantive conflict between Virginia and Oregon laws governing claims for account stated, Oregon's statute of limitations applied to PRA's action. See Id. at 268-74. Nyberg does not contest that PRA filed its account-stated claim within Oregon's applicable statute of limitations period. Nyberg's argument that, under the concurrent remedy doctrine, Virginia's time bar on a breach-of-contract claim precludes an account-stated claim in Oregon is not persuasive.Nyberg I, 2023 WL 4363119 at *1-2.
In sum, both Sanders and Nyberg I confirmed that: (1) a claim for account stated can be asserted to recover an unpaid credit card obligation; (2) both Oregon and Virginia have a substantive connection to the dispute when the action is filed in Oregon (due to the plaintiffs' residence) but the underlying cardholder agreement has a Virginia choice of law provision; and (3) such a claim arises under Oregon substantive law and thus Oregon's six-year statute of limitations governs due to the absence of conflict between Virginia and Oregon's account stated laws.
In other words, plaintiffs' contention that this case is somehow different - insofar as “Virginia law is the only state with a substantive connection to the transaction because Capital One is domiciled there and because Virginia law regulates Capital One's credit card business” and “[b]eing sued by a debt buyer in Oregon is not a relevant connection to any issue concerning the debt” - is not borne out by either the FAC or relevant precedent.Pls.' Resp. to Partial Mot. Dismiss 4 (doc. 90). And, to the extent plaintiffs intimate Sanders was wrongly decided, they have not cited to any authority that allows a federal court to sit in direct review of a state court decision under the present circumstances. See, e.g., id. at 6-12; see also Reusser v. Wachovia Bank, NA, 525 F.3d 855, 859 (9th Cir. 2008) (Rooker-Feldman doctrine precludes recourse in federal court for an allegedly erroneous state court decision).
In support of this proposition, plaintiffs cite to paragraphs 27 and 28 of the FAC. Yet those paragraphs merely assert: “Capital One is a certified National Bank located in Virginia and regulated by Federal and Virginia law” and “Nyberg obtained his Capital One credit card around 2004. The cardholder agreement issued by Capital One to Nyberg contained a Virginia choice of law.” FAC ¶¶ 27-28 (doc. 78). Other portions of the FAC recognize Nyberg and Sprayberry as Oregon residents, and that PRA's collection actions were filed in Oregon state court. Id. at ¶¶ 5, 9, 19, 23. And, critically, the FAC does not allege any conflict between Virginia and Oregon's account stated laws.
As a result, plaintiffs' claim that PRA violated the FDCPA by suing for account stated rather than breach of contract, and for pursuing an allegedly time-barred obligation, fails as a matter of law. Indeed, plaintiffs do not allege that PRA filed its collection actions against them outside of Oregon's six-year statute of limitations. By extension, plaintiffs' proposed classes based on count two are equally deficient. Cf. Tomaszewski v. Circle K Stores Inc., 2021 WL 2661190, *2-3 (D. Ariz. Jan. 12, 2021) (granting the defendant's motion to strike class allegations “[w]here the complaint demonstrates that a class action cannot be maintained on the facts alleged”); see also Robey v. Shapiro, Marianos & Cejda, LLC, 434 F.3d 1208, 1213 (10th Cir. 2006) (affirming the dismissal of a putative class action complaint where the individually named plaintiff's claims failed to state a claim under Rule 12(b)(6)). PRA's motion is granted as to plaintiff's FDCPA count two and the “Kimber” and “Account Stated” classes.
II. UTPA Allegations
Plaintiffs allege the following “practices” violate UTPA: (1) “allowing Oregon licensed attorneys to sign the collection actions filed by PRA that allege account stated claims that assert the objectively false consequence of a cardholder's failure to dispute the account balance listed in the billing statement is that the cardholder and Capital One have agreed that sum is owed and that agreement is enforceable as a claim for account stated or that 15 U.S.C. § 1666 prescribed the time allowed by a cardholder to dispute the billing statement with the same consequence”; and (2) “filing collection actions that allege account stated claims that assert the objectively false consequence of a cardholder's failure to dispute the account balance listed in the billing statement is that the cardholder and Capital One have agreed that sum is owed and that agreement is enforceable as a claim for account stated or that 15 U.S.C. § 1666 prescribed the time allowed by a cardholder to dispute the billing statement with the same consequence.” FAC ¶¶ 141-42 (doc. 78).
“Oregon courts have long recognized, and enforced, an absolute privilege for statements in the course of or incident to judicial and quasi-judicial proceedings.” Mantia v. Hanson, 190 Or.App. 412, 417, 79 P.3d 404 (2003) (collecting cases). That is, parties and their attorneys have absolute privilege for all “conduct undertaken in connection with litigation.” Id. at 423. “The privilege is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” Troutman v. Erlandson, 286 Or. 3, 7, 593 P.2d 793 (1979) (en banc) (citation and internal quotations omitted). It thus attaches to “statements made in the proceeding itself,” including “statements in pleadings,” as well as to “statements made in advance of litigation.” Id. at 8; Wollam v. Brandt, 154 Or.App. 156, 163-64, 961 P.2d 219 (1998) (citation and internal quotations omitted).
For instance, in Graham, this District applied the privilege to UTPA claims brought against a bank and its law firm premised on judicial foreclosure proceedings. See Graham v. U.S. Bank, Nat'l Ass'n, 2015 WL 10322087, *16 (D. Or. Dec. 2, 2015), adopted by 2016 WL 393336 (D. Or. Feb. 1, 2016) (the defendants' post-judgment efforts to remove the plaintiffs from the foreclosed property “through judicial proceedings” were “within the scope of the litigation privilege”). In so holding, Graham noted that the privilege “protects against all tort claims” - including statutory torts such as the plaintiffs' UTPA claim - given “the policy rationale for the litigation privilege.” Id.; see also Chase v. Gordon, Aylworth & Tami, PC, 2020 WL 1644310, *6 (D. Or. Feb. 14), adopted by 2020 WL 3977608 (D. Or. July 14, 2020) (the litigation privilege applies to “any tort action”) (citation and internal quotations omitted).
Plaintiffs' UTPA claim in this case is based directly on the pleadings filed by or on behalf of PRA in Oregon state court. FAC ¶¶ 78, 141-42 (doc. 78). Significantly, plaintiffs do not dispute that their UTPA claim relates exclusively to conduct undertaken in connection with litigation. See Pls.' Resp. to Partial Mot. Dismiss 28-35 (doc. 90) (attempting to distinguish “speech or conduct involving transactions” - i.e., “commercial speech . . . has a long history of being regulated [and is] not considered protected speech” if “improper” or related to “legitimate claims”). Further, plaintiffs have not cited to any authority holding that statements made in a collection complaint are commercial speech and/or not subject to Oregon's litigation privilege, or that that applying the litigation privilege to bar a UTPA claim usurps the Legislature's authority to enact laws.
Plaintiffs are nonetheless correct that the privilege does not provide absolute immunity for the malicious or bad faith initiation of lawsuits. The rationale for these exceptions is that immunizing such conduct would not serve the purpose of the privilege. See, e.g., Mantia, 190 Or.App. at 429. Although plaintiffs maintain that PRA's enforcement actions were a “sham” or “objectively false,” they also concede they were in default under their cardholder agreements, such that it is not entirely clear from the FAC that PRA's motives fell within an exception. See Iqbal, 556 U.S. at 682 (an allegation is not plausible where there is an “obvious alternative explanation” for the alleged misconduct) (citation and internal quotations omitted); see also Duke v. Nachtigal, 2012 WL 195466, *7 (D. Or. Jan. 19, 2012) (granting summary judgment in favor of the defendant on a malicious prosecution claim where, even though the defendant's continued pursuit of a debt was “objectively unreasonable,” there was “no evidence that defendants were motivated by malice, or in other words had a primary purpose other than securing the delinquent funds owed”).
Even assuming PRA's alleged actions were not privileged, plaintiffs' UTPA claim still neglects to establish a requisite element - namely, an “ascertainable loss of money or property.” Hedrick v. Spear, 138 Or.App. 53, 57, 907 P.2d 1123, 1125 (1995); see also Pls.' Resp. to Partial Mot. Dismiss 37 (doc. 90) (acknowledging that “ORS 646.638(1) allows ‘a person that suffers an ascertainable loss of money or property' to bring a UTPA claim”). Although courts have yet to fully define the precise parameters of this term, they are in agreement that it describes only “determinable loss[es].” Clark v. Eddie Bauer LLC, 371 Or. 177, 185, 532 P.3d 880 (2023).
Stated differently, while the loss may be “so small that the common law likely would reject it as grounds for relief” or not subject to exact measurement, it must nonetheless be both economic in nature and “capable of being discovered, observed or established.” Id. (citations and internal quotations omitted); see also Pearson v. Philip Morris, Inc., 358 Or. 88, 117, 361 P.3d 3 (2015) (an “ascertainable loss” must “be objectively verifiable,” constitute “money or property, real or personal,” and “be a result of the unlawful trade practice”; “noneconomic losses cognizable in a civil action . . . will not satisfy a private UTPA plaintiff's burden”) (citation and internal quotations omitted).
Here, the only losses that plaintiffs identify are amorphous noneconomic losses - i.e., “being subjected to a sham collection action that attempted to enforce a fictional agreement and denied them the benefit of the bargain that they had agreed to as evidenced by the applicable cardholder agreement that governed their respective obligations to pay for their use of the credit issued by Capital One on their behalf” and the “loss of the original credit card transaction bargain which diminished [their] intangible contract rights, not least of which was [their] vested right not to be sued three years after [their] default” - which fail to meet this standard, especially considering the key holdings of Sanders and Nyberg I, as discussed in Section I. FAC ¶¶ 73-75, 103, 132 (doc. 78).
Even looking beyond the FAC, plaintiffs struggle to articulate how PRA's practices resulted in losses that are both economic and readily determinable. See Pls.' Resp. to Partial Mot. Dismiss 3738 (doc. 90) (“PRA's attempt to use the billing statements that Capital One sent to its cardholders pursuant to the requirements of their express agreement, Virginia law and federal law, to prove a different agreement that it fabricated out of misrepresentations about the nature of the transaction and state and federal law, that purported to state the account in a final sum that PRA claimed it could enforce independently of the agreement governing the transaction and which was subject to a longer statute of limitations denied Plaintiffs the benefit of the bargain they did agree to”); id. at 38 (“PRA's attempt to enforce a sham bargain was a loss of the original bargain. That loss increased Plaintiffs liability resulting from the original bargain because the natural consequence of contesting PRA's sham claim required them to expend resources defending the collection action”); id. at 39 (“[a] judgment for money damages that were not owed is a loss. Being hauled into court to defend a sham collection action is a loss”); id. at 40 (“[t]he loss of the statute of limitations defense was an ascertainable loss”).
Finally, to the extent plaintiffs maintain they “incurred liability for [attorney] fees and costs [which qualify] as an ascertainable loss,” their argument is unavailing. Pls.' Resp. to Partial Mot. Dismiss 39 (doc. 90). The FAC does not actually allege that Sprayberry incurred such liability, or that either plaintiff ended up paying such fees or costs. See, e.g., FAC ¶¶ 87, 109-10 (doc. 78); see also Pls.' Resp. to Partial Mot. Dismiss 39 (doc. 90) (“[p]laintiffs can amend to allege that PRA paid the fees and costs incurred by Plaintiffs which obviated their obligation to pay those fees”). In any event, merely “incurring liability” in this context does not constitute an “ascertainable loss.” Cf. Hedrick, 138 Or.App. at 57 (the defendant failed to demonstrate an ascertainable loss in a case surrounding allegedly excessive legal fees charged by the plaintiff where there “was no evidence . . . that defendant actually paid fees in excess of the amount agreed upon or owed, only that he was billed for more than he had agreed to pay”); see also Fleshman v. Wells Fargo Bank, NA, 27 F.Supp.3d 1127, 1141 (D. Or. 2014) (“expenses related to canceling credit cards, running credit reports, changing social security numbers, as well as attorney's fees were not ascertainable losses because they did not result directly from the alleged UTPA violations but instead were losses incurred to prevent a threatened ascertainable loss”) (emphasis in original; citation omitted).
The case cited by plaintiffs - Russell v. Ray Klein, Inc., 2019 WL 6137455 (D. Or. Nov. 19, 2019) - is distinguishable, as it concerned claims against a third-party assignee and its counsel for attorney fees added to the underlying debt via a garnishment. Stated differently, the central question in Russell was whether the plaintiff's allegation that the defendants “caused a likelihood of confusion and misunderstanding as to source, approval, and/or certification of the $45 attorney's fee by wrongly suggesting that the fee was authorized under Oregon law” stated a plausible claim (and it did). Id. at *1, *4-5 (citation and internal quotations and ellipses omitted). There is no analogous issue currently before this Court because, unlike in Russell, plaintiffs here do not identify any fee (determinable or otherwise) that was improperly collected as part of PRA's state court litigation. PRA's motion is granted as to plaintiffs' UTPA claim.
Despite the FAC's deficiencies, the Court declines to dismiss plaintiffs' counts/claims with prejudice. Plaintiffs have not yet had the opportunity to seek amendment in regard to their UTPA claim, such that the Court cannot conclude, at least at this stage in the proceedings, that its deficiencies are incurable as a matter of law.
RECOMMENDATION
For the reasons stated herein, PRA's Partial Motion to Dismiss (doc. 81) should be granted. Defendant's request for oral argument is denied as unnecessary. Any motion to amend the complaint must be filed within 14 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.