Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00853-IEG-AJB

Document 4

Filed 08/04/2008

Page 1 of 3

Harvey M. Moore, Bar No. 101128 The Moore Law Group, 2 A Professional Corporation 3710 S. Susan St., Ste 210 3 P.O. Box 25145 Santa Ana, CA 92799-5145 4 (800) 506-2652 5 Attorneys for Defendant SALLIE MAE, INC. 6
7
8

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

9
10 11 12
13

ANNISA MAYER, Plaintiff, vs. SALLIE MAE, Defendant.

Case No. 08 CV 0853IEG AJB DEFENDANT SALLIE MAE, INC'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR DAMAGES PURSUANT TO FED. R. CIV. P. 12(b)(6) [NO ORAL ARGUMENT PURSUANT TO LOCAL RULE] Hearing Date: Time: Courtroom: October 14,2008 10:30 a.m. One

14 15 16 17 18

19 TO THE HONORABLE IRMA E. GONZALES, JUDGE PRESIDING, PLAINTIFF ANNISA 20 MAYER AND HER ATTORNEYS OF RECORD: 21 22 23 San Diego, California 92101, Defendant Sallie Mae, Inc. ("Sallie Mae"), will and does hereby 24 25 26 27 28 move this Court for an Order dismissing Plaintiff Annisa Mayer's ("Mayer") Complaint for Damages against Defendant Sallie Mae. Defendant Sallie Mae requests that this Court grant its Motion to Dismiss Plaintiff Mayer's Complaint for Damages pursuant to Fed.R.Civ.P. 12(b)(6), and dismiss the claims filed
1
Notice of Motion and Motion to Dismiss Case No. 08 CV 0853IEG AJB

PLEASE TAKE NOTICE that on October 14, 2008 at 10:30 a.m., or as soon thereafter as counsel may be heard in courtroom one of the above-entitled Court, located at 940 Front Street,

Case 3:08-cv-00853-IEG-AJB

Document 4

Filed 08/04/2008

Page 2 of 3

by Plaintiff Mayer on the grounds that:

2

3
4


1.

Plaintiff Mayer's First Count, alleging that Defendant Sallie Mae has violated the

Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. ("FDCPA"), and is therefore liable to Plaintiff Mayer for damages, fails to set forth a claim upon which relief can be granted because Defendant Sallie Mae is not a "debt collector" within the meaning of the FDCPA.

5
6

7


2.

Plaintiff Mayer's Second Count, alleging that Defendant Sallie Mae has violated


8
the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788 - 1788.32 ("California
9


Rosenthal AcC), and is therefore liable to Plaintiff Mayer for damages. fails to set forth a claim
upon which relief can be granted because the alleged actions of the Sallie Mae, if true, are
absolutely privileged pursuant to Cal. Civ. Code § 47(b). Rusheen v. Cohen, 37 Cal.4th 1048,
1058.

10 11
12


13

14

3.

Count II fails to state a claim upon which relief can be granted because Plaintiff

15 resided in Los Angeles County at the time the Loans were made and the Loans were made in Los 16
Angeles County. 17
18
19
20 pleadings and papers on file herein and upon such other matters as may be presented to this Court 21
22
at or before the hearing on the Motion. 23
24
25 26
27
28

2

Notice of Motion and Motion to Dismiss Case No. 08 CV 08531EG AJB


Defendant Sallie Mae's Motion is based on this Notice of Motion and Motion , the accompanying Memorandum of Points and Authorities and Declaration of James M. Austin, the

No oral argument will be heard in this matter, unless requested by the Court.

Case 3:08-cv-00853-IEG-AJB

Document 4

Filed 08/04/2008

Page 3 of 3

Dated: August 4, 2008
')

The Moore La~, APC
~ ...

...

3
4
5 6
7
8

9


~.

c.-_

By:

\ Harvey ~; Moore A~6r Defendant

10 11
12
13
14
15 16
17
18
19
20 21
22
23
24
25 26
27
28

3

Notice of Motion and Motion to Dismiss Case No. 08 CV 0853lEG AJB