United States District Court, D. Idaho
CHRISTOPHER JOHNSON, for himself and behalf of others all similarly situated, Plaintiff,
CACH, LLC and MANDARICH LAW GROUP, LLP, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
Court has before it a Motion to Dismiss (Dkt. 11) filed by
defendants CACH, LLC and Mandarich Law Group, LLP.
Alternatively, the Defendants seek to compel arbitration of
the dispute. For the reasons discussed below, the Motion is
granted in part, and the Court will order arbitration for all
claims and parties.
Johnson originally filed this action in Idaho state court for
himself and on behalf of all others similarly situated. This
case was removed to federal court on August 22, 2016. (Dkt.
30, 2008, Plaintiff entered into a credit card agreement with
Bank of America (the “Agreement”). (Dkt. 13 at
3). Bank of America is, according to Plaintiff, a corporation
incorporated in the state of Delaware. Id. The
Agreement contained language stating that the Agreement was
entered into in Delaware and that the credit from Bank of
America to Plaintiff was extended from Delaware. Id.
The Agreement also contained a choice of law provision
stating that the Agreement was to be governed by the laws of
Delaware. Id. At the time the Agreement was entered
into, Plaintiff resided in Tennessee. Id.
ultimately charged $8, 989.28 to the Bank of America credit
card. Id. On June 30, 2012, Bank of America sent
Plaintiff a “final statement of the balance.”
Id. No further charges were made after the final
statement. Id. No payments were made on the credit
card after May 3, 2012. Id. at 4. It is apparently
undisputed that Plaintiff breached the Agreement with Bank of
America by “failing to make periodic payments.”
24, 2012, Bank of America assigned the right to collect
Plaintiff's debt to CACH. Id. CACH commenced
legal action against Plaintiff to collect the debt on October
7, 2015 in Idaho state court. Id. The parties
settled the original lawsuit, and the case was dismissed.
Id. at 5.
filed the present action against Defendants alleging general
claims for relief. (Dkt. 1-1 at 5). First, Plaintiff alleges
that Defendants violated the Fair Debt Collection Practices
Act (the “FDCPA”), 15 U.S.C. § 1692 et
seq, because Defendants allegedly filed the original
action outside of the controlling statute of limitations and
that the Defendants “acted with malice or otherwise
with willful or reckless disregard for Plaintiff's legal
rights . . . .” Id. at 7. Plaintiff also
alleges a violation of the North Carolina Debt Collections
Act (the “NCDCA”), N.C. Gen. Stat. §§
75-50, because proposed class members may have entered into a
credit card agreement with Bank of America that contained a
choice of law provision for North Carolina and that the
alleged conduct was coercive, fraudulent, and misleading
under the NCDCA. Id. Finally, Plaintiff brings a
claim of “malicious prosecution” for prosecuting
outside of the Idaho statute of limitations. Id.
argue in the Motion that all claims should be dismissed.
(Dkt. 11-1). Alternatively, Defendants request that if the
Court declines to grant Defendants' Motion in full that
the Court compel arbitration. Id. at 10.
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964
(2007). While a complaint attacked by a Rule 12(b)(6) motion
to dismiss “does not need detailed factual allegations,
” it must set forth “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Id. at 570. 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. Id. at 556. 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.
Id. Where a complaint pleads facts that are
“merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.' ” Id. at 557.
Supreme Court identified two “working principles”
that underlie Twombly in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). First, the court need not accept as
true, legal conclusions that are couched as factual
allegations. Id. Rule 8 does not “unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 678-79. Second, to
survive a motion to dismiss, a complaint must state a
plausible claim for relief. Id. at 679.
“Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id.
too much in the complaint may also be fatal to a plaintiff.
Dismissal may be appropriate when the plaintiff has included
sufficient allegations disclosing some absolute defense or
bar to recovery. See Weisbuch v. County of L.A., 119
F.3d 778, 783, n. 1 (9th Cir. 1997) (stating that “[i]f
the pleadings establish facts compelling a decision one way,
that is as good as if depositions and other . . . evidence on
summary judgment establishes the identical facts”).
dismissal without leave to amend is improper unless it is
beyond doubt that the complaint “could not be saved by
any amendment.” Harris v. Amgen, Inc., 573
F.3d 728, 737 (9th Cir. 2009) (issued 2 months after
Iqbal). The Ninth Circuit has held that “in
dismissals for failure to state a claim, a district court
should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other
facts.” Cook, Perkiss and Liehe, Inc. v. Northern
California Collection Service, Inc.,911 F.2d 242, 247
(9th Cir. 1990). The issue is not whether plaintiff will
prevail but whether ...