Privacy Suit Violates ‘Claim Splitting’ Doctrine, Says Motion to Dismiss

Plaintiff Cynthia Lepur fails to state a claim against student loan servicer Educational Credit Management Corp. (ECMC) "upon which relief can be granted," because her class action “violates the doctrines of claim splitting and claim preclusion,” said ECMC’s motion to dismiss Wednesday (docket 3:23-cv-00014) to U.S. District Court for Southern California in San Diego. ECMC alternatively is seeking to strike Lepur’s class-action allegations.

Lepur alleges ECMS recorded its phone conversations with her without her consent, in violation of the California Invasion of Privacy Act (see 2301050046). The phone calls Lepur placed to an ECMC representative in February 2015 involved “personal financial affairs” that she had “not openly discussed with others,” said her complaint.

Lepur “judicially estopped herself” from pursuing ECMC in this case, and her complaint “represents an improper attempt to step in and save an already-failed class action which contradicts binding case law and the first-to-file rule,” said ECMC. Lepur’s case is the most recent in a string of five “duplicative class actions” filed against ECMC, “based on the same alleged facts,” it said.

Lepur’s “contingency lawsuit” is her attempt to “nullify the adverse outcome” in Reyes (Mahboob) v. ECMC, and any adverse ruling she believes might be issued in the other cases, said ECMC. Reyes was litigated for more than seven years, and was first certified as a class action and then vacated on appeal, it said. The case was ultimately dismissed on the merits, as affirmed by the 9th U.S. Circuit Court of Appeals Oct. 24, ECMC said.

Lepur claimed to not only be a putative member of the once-certified Reyes class, but she's also currently prosecuting one of the other four “successive class actions,” said ECMC. “The instant duplicative case should therefore be dismissed for improper claim splitting and/or claim preclusion,” it said. To “knowingly manipulate” the courts in this manner “violates the doctrine of judicial estoppel,” it said.

Lepur isn't entitled to “limitless bites at the apple,” and her case should be dismissed under the first-to-file rule, said ECMC. Putative class members from a dismissed class action “have no right under controlling law to file a lawsuit seeking to represent the same class of persons previously dismissed” by another court, it said. That’s exactly what Leput “seeks to do here,” it said.