United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING DEFEDANT'S
MOTION TO DISMISS
STEWART UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Motion to Dismiss filed by
The Law Offices of Kirk A. Cullimore, L.L.C. (the
“Defendant”). Plaintiff has failed to respond to
Defendant's Motion to Dismiss. For the reasons discussed
below, the Court will grant the Motion.
Willey Home Furnishings (“R.C. Willey”), through
Defendant, filed a Complaint against Plaintiff in the Utah
Third District Court on January 29, 2012. Judgment for R.C.
Willey was entered on February 7, 2013, and Plaintiff,
proceeding pro se, appealed. Plaintiff argued that
he did not receive notice of R.C.Willey's motion for
summary judgment. The Utah Court of Appeals remanded the case
to allow Plaintiff to respond to the motion for summary
remand, Judge Barlow, the judge overseeing the action,
entered a default judgment against Plaintiff on November 3,
2014, for his failure to appear at a pretrial conference.
Plaintiff appealed; however, the Utah Court of Appeals
affirmed the lower court.
Plaintiff filed a Complaint in this Court against Defendant
and Judge Barlow. The Complaint against Judge Barlow was
dismissed under the doctrine of judicial immunity and the
provisions of 42 U.S.C. § 1983. The Court allowed
Plaintiff an opportunity to amend his Complaint against the
Law Offices of Kirk A. Cullimore.
Amended Complaint alleges two causes of action: (1) false or
misleading representations under 15 U.S.C. § 1692e(10);
and (2) unfair practices under 15 U.S.C. § 1692f.
Defendant responded with a Motion to Dismiss the Amended
Complaint. Plaintiff failed to respond to the Motion.
MOTION TO DISMISS STANDARD
Motion to Dismiss is appropriate when there is a failure to
state a claim. “A court must accept as true all
well-pleaded facts as distinguished from conclusory
allegations, and those facts must be viewed in the light most
favorable to the nonmoving party.” The Complaint
must include “enough facts to state a claim to relief
that is plausible on its face” and does not suffice if it
“tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Count I: False or Misleading Representation Under 15 U.S.C.
1692e(10) states that a debt collector may not use “any
false representation or deceptive means to collect or attempt
to collect any debt or to obtain information concerning a
consumer.” Plaintiff alleges that Defendant twice
mailed court documents to him at an incorrect address.
Plaintiff claims, without offering any factual support, that
“Cullimore had full knowledge of the correct mailing
address Plaintiff provided in Nevada, but with the intent to
deprive the Plaintiff the opportunity to contest the attorney
fee affidavit and judgment, he knowingly sent it to the wrong
actions taken by Defendant do not violate 15 U.S.C. §
1692e(10) because mailing a court order to an incorrect
address does not constitute “false representation or
deceptive means” under the statute. Therefore, the
Court will grant ...