In Breidenbach v. Experian, 2013 WL 1010565 (S.D.Cal. 2013), Judge Curiel found that an otherwise exempt creditor cannot be brought under the FDCPA by a theory of vicarious liability.
AES argues Plaintiff’s FDCPA claim against AES fails because AES is not a “debt collector” under the FDCPA and because AES cannot be held vicariously liable for the acts of WWR, NES, or MRS. ¶ In opposition, Plaintiff does not address AES’s argument that AES is not a “debt collector” under the FDCPA. Instead, Plaintiff argues AES may be held vicariously liable for employing debt collectors to collect a debt that is not owed. Plaintiff asserts that, under general agency principles, a creditor such as AES is liable for the actions of debt collectors like WWR, NES, and MRS if the creditor exercised control over the debt collector’s activities. Plaintiff argues she has sufficiently alleged that AES exercised such control. ¶ In reply, AES asserts that Plaintiff “concedes that AES is not a ‘debt collector’ for FDCPA purposes.” AES then argues that Plaintiff has failed properly allege a claim for vicarious liability because original creditors cannot be vicariously liable for a debt collector’s violations of the FDCPA. AES asserts that, even if that were not the case, Plaintiff has not alleged facts demonstrating that AES directed WWR, NES, or MRS to collect the alleged debt. AES notes that none of Plaintiff’s citations to her FAC actually support Plaintiff’s claim that AES controlled the actions of WWR, NES, or MRS. ¶ General principles of agency form the basis of vicarious liability under the FDCPA. See Clark v. Capital Credit & Collection Serv., Inc., 460 F.3d 1162, 1173 (9th Cir.2006). Thus, to be vicariously liable for another’s violation of the FDCPA, the “principal” must exercise control over the conduct or activities of its “agent.” Id. Several circuit courts have held, however, that—because the FDCPA only imposes liability on debt collectors—vicarious liability may only be imposed if both the principal and the agent are debt collector as defined by the FDCPA. See Police v. Nat’l Tax Funding, L.P., 225 F.3d 379, 404 (3d Cir.2000) (concluding a company may be held vicariously liable for acts of agent because company and agent were debt collectors); see also Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir.1996) (declining to impose vicarious liability on non-debt collectors); see also Fox v. Citicorp Credit Serv., Inc., 15 F.3d 1507 (9th Cir.1994) (imposing vicarious liability on company for acts of its attorney where company was also a debt collector); see also Oei v. N. Star Capital Acquisitions, LLC, 486 F.Supp.2d 1089, 1097 (C.D.Cal.2006) (“Vicarious liability under the [ FDCPA] has similarly been restricted to principals who themselves are statutory ‘debt collectors.’ ”). ¶ Here, Plaintiff’s FDCPA claim against AES rests on a theory of vicarious liability as it must given the rule that creditors are generally excluded from the definition of “debt collector” under the FDCPA. See 15 U.S.C. § 1692a(6). Plaintiff, however, does not allege that AES is itself a debt collector as required to impose vicarious liability; thus, Plaintiff’s FDCPA claim against AES must be dismissed. Accordingly, because Plaintiff cannot allege that AES is a “debt collector,” AES’s motion to dismiss Plaintiff’s FDCPA claim is GRANTED WITHOUT LEAVE TO AMEND.