Fishman v. TransUnion LLC

Filing 14

ORDER granting 4 Defendant's Motion to Dismiss. Plaintiff shall file an amended Complaint within 21 days of the date of this Order. Clerk to enter dismissal with prejudice and enter judgment accordingly if Plaintiff fails to comply. Signed by Judge James A Teilborg on 6/20/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stanley Fishman,
Plaintiff,

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ORDER

v.
Trans Union Inc.,
Defendant.

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No. CV 11-2105-PHX-JAT

Pending before the Court is Defendant Trans Union LLC’s Motion to Dismiss
(Doc. 4). The Court now rules on the Motion.

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I.

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On September 30, 2011, Plaintiff pro se filed a Complaint in Maricopa County

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Superior Court against Trans Union Inc. On October 26, 2011, Defendant removed the

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case to this Court based on diversity jurisdiction. Thereafter, Defendant filed a Motion to

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Dismiss Plaintiff’s Complaint (Doc. 4). Plaintiff did not file a Response.

BACKGROUND

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II.

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To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must

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meet the requirements of Rule 8. Rule 8(a)(2) requires a Ashort and plain statement of the

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claim showing that the pleader is entitled to relief,@ so that the defendant has Afair notice

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of what the . . . claim is and the grounds upon which it rests.@ Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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LEGAL STANDARD

Although a complaint attacked for failure to state a claim does not need detailed

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factual allegations, the pleader=s obligation to provide the grounds for relief requires

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Amore than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do.@ Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The

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factual allegations of the complaint must be sufficient to raise a right to relief above a

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speculative level. Id.

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Rule 8=s pleading standard demands more than Aan unadorned, the-defendant-

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unlawfully-harmed-me accusation.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

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Twombly, 550 U.S. at 555). A complaint that offers nothing more than blanket assertions

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will not suffice. To survive a motion to dismiss, a complaint must contain sufficient
factual matter, which, if accepted as true, states a claim to relief that is Aplausible on its
face.@ Id. Facial plausibility exists if the pleader pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. Plausibility does not equal Aprobability,@ but plausibility requires more than
a sheer possibility that a defendant has acted unlawfully. Id. AWhere a complaint pleads
facts that are >merely consistent= with a defendant=s liability, it >stops short of the line
between possibility and plausibility of entitlement to relief.=@ Id. (quoting Twombly, 550
U.S. at 557).

Because Plaintiff is proceeding pro se, the Court must construe his

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Complaint liberally, even when evaluating it under the Iqbal standard. Johnson v. Lucent

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Technologies Inc., 653 F.3d 1000, 1011 (9th Cir. 2011).

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In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the

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facts alleged in a complaint in the light most favorable to the drafter of the complaint, and

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the Court must accept all well-pleaded factual allegations as true. Shwarz v. United

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States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept

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as true a legal conclusion couched as a factual allegation, Papasan, 478 U.S. at 286, or an

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allegation that contradicts facts that may be judicially noticed by the Court, Shwarz, 234

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F.3d at 435.

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III.

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Defendant moves to dismiss Plaintiff’s Complaint pursuant to Federal Rule of

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Civil Procedure 12(b)(6) because the Complaint fails to state facts sufficient to support a

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claim for relief. The sole facts alleged in Plaintiff’s Complaint are as follows:

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Due to the way [Defendant] does [its] practice I have sent [a]
letter asking them to remove all these claims. I have asked
them for proof. My signature showing that I punched all
these items they claim I owed money on but they have
refuse[d] to do anything but harm my credit with all the
compan[ies] I have applied [for] credit with.

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(Doc. 1-1).
Defendant construes this as alleging a Fair Credit Reporting Act claim and asserts

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ANALYSIS

that Plaintiff must allege the specific inaccurate information that was included on his
credit report. The Court agrees. To raise his right to relief above the speculative level,
Plaintiff must allege facts that would provide Defendants with the grounds for his claims.
For instance, if Plaintiff were attempting to assert a claim under the Fair Credit Reporting
Act, Plaintiff should include facts in his complaint, such as the inaccurate information on
his credit report, when Plaintiff discovered the inaccurate information was being
reported, specific details about his attempts to have such information removed from his
credit report, and specific details about the companies to which he applied for credit and
was denied. Essentially, Plaintiff must set forth the factual “grounds” on which his
claims rest. Because Plaintiff has failed to do so, the Court must grant Defendant’s
Motion to Dismiss. Further, because Plaintiff has failed to respond to Defendant’s
Motion to Dismiss, such non-response “may be deemed a consent to the denial or
granting of the motion and the Court may dispose of the motion summarily.” LRCiv
7.2(i).
IV.

LEAVE TO AMEND

Plaintiff has not requested leave to amend.

However, the Ninth Circuit has

instructed district courts to grant leave to amend when dismissing a case for failure to
state a claim, “unless the court determines that the pleading could not possibly be cured

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by the allegations of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)

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(quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Because the Court

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cannot find that Plaintiff’s Complaint could not be cured by allegations of other facts, the

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Court will give Plaintiff an opportunity to amend his Complaint.

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V.

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Based on the foregoing,

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IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 4) is granted.

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IT IS FURTHER ORDERED that Plaintiff shall file an amended Complaint

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within 21 days of the date of this Order. If Plaintiff does not file an amended Complaint,

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the Clerk of the Court shall dismiss this case with prejudice, without further notice, and

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enter judgment accordingly.

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CONCLUSION

Dated this 20th day of June, 2012.

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