Judge Mueller didn’t actually channel the late-George Carlin. But, in Probasco v. IQ Data Intern., 2011 WL 1807429 (E.D. Cal. 2011), Judge Mueller held that Iqbal/Twombly require a Plaintiff to plead the profane or inappropriate language allegedly used by a debt collector.
Before a debt collector’s language falls within the prohibition against harassment, it must be “akin to profanity or obscenity,” including “name-calling, racial or ethnic slurs, and other derogatory remarks.” Kelemen v. Professional Collection Systems, 2011 WL 31396, at *3 (M.D.Fla.) (quoting Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985)). Here, plaintiff’s summary allegations make it impossible to determine whether the language used was “profane and abusive.” Fenn v. CIR, 2011 WL 850131, at *3 (E.D.Cal. 2011) (complaint tracking only the statutory language failed to state a claim). Plaintiff’s claims under 15 U.S.C. § 1692d(2) and California Civil Code § 1788.11(a) are not sufficiently pled. See Cal. Civ.Code § 1788 .17 (incorporating FDCPA).
However, Judge Mueller allowed the Plaintiff’s bare-bones telephonic harassment claim to pass the pleading stage:
Plaintiff alleges that “the Defendants caused a phone to ring repeatedly and engaged the Plaintiff in telephone conversations, with the intent to annoy and harass …. “ and communicated with the Plaintiff with such frequency as to be considered harassment….” Compl. 20, 30 (“engaged the Plaintiff in continuous conversations … ), 31. Under both federal and state law, “[w]hether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.” Arteaga, 733 F.Supp.2d at 1229; Joseph v. J.J. MacIntyre Companies, L.L.C., 238 F.Supp.2d 1158, 1167 (N.D.Cal.2002). Defendant relies largely on Krapf v. Nationwide Credit Inc., 2010 WL 2025323 (C.D.Cal.2010), and other cases that resolve motions for summary judgment, in support of its argument that the complaint fails to state a claim. In Krapf, the court denied the debt collector’s motion for summary judgment when plaintiff estimated that the defendant called him four to eight times a day. Id. at *2. In Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301, 1305 (M.D.Fla.2010), the court granted the debt collector’s motion for summary judgment, finding that even though defendant had made numerous calls, the calls were made in an attempt to find plaintiff’s daughter who was the debtor, and defendant never spoke with plaintiff. Finally, in Saltzman v. I.C. System, Inc., 2009 WL 3190359, at *7 (E.D.Mich.2009), the court found the debt collector was entitled to summary judgment because the disparity between the number of calls placed by defendant and the much lower number of successful conversations suggested difficulty reaching plaintiff rather harassment. In contrast, in Brown v. Hosto & Buchan, the court denied a motion to dismiss a complaint alleging that the defen-dant called plaintiff seventeen times in one month. 748 F.Supp.2d at 852–54. In this case, plaintiff’s claim that defendant called her numerous times per day and engaged her in continuous conversations, though abbreviated, provides sufficient detail for the court to determine that the claim is plausible on its face.