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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stanley Fishman, Plaintiff, 10 11 12 15 ORDER v. Trans Union Inc., Defendant. 13 14 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. 16 I. 17 On September 30, 2011, Plaintiff pro se filed a Complaint in Maricopa County 18 Superior Court against Trans Union Inc. On October 26, 2011, Defendant removed the 19 case to this Court based on diversity jurisdiction. Thereafter, Defendant filed a Motion to 20 Dismiss Plaintiff’s Complaint (Doc. 4). Plaintiff did not file a Response. BACKGROUND 21 II. 22 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 23 meet the requirements of Rule 8. Rule 8(a)(2) requires a Ashort and plain statement of the 24 claim showing that the pleader is entitled to relief,@ so that the defendant has Afair notice 25 of what the . . . claim is and the grounds upon which it rests.@ Bell Atl. Corp. v. Twombly, 26 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 27 28 LEGAL STANDARD Although a complaint attacked for failure to state a claim does not need detailed 1 factual allegations, the pleader=s obligation to provide the grounds for relief requires 2 Amore than labels and conclusions, and a formulaic recitation of the elements of a cause 3 of action will not do.@ Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The 4 factual allegations of the complaint must be sufficient to raise a right to relief above a 5 speculative level. Id. 6 Rule 8=s pleading standard demands more than Aan unadorned, the-defendant- 7 unlawfully-harmed-me accusation.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 8 Twombly, 550 U.S. at 555). A complaint that offers nothing more than blanket assertions 9 10 11 12 13 14 15 16 17 18 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 19 Complaint liberally, even when evaluating it under the Iqbal standard. Johnson v. Lucent 20 Technologies Inc., 653 F.3d 1000, 1011 (9th Cir. 2011). 21 In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the 22 facts alleged in a complaint in the light most favorable to the drafter of the complaint, and 23 the Court must accept all well-pleaded factual allegations as true. Shwarz v. United 24 States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept 25 as true a legal conclusion couched as a factual allegation, Papasan, 478 U.S. at 286, or an 26 allegation that contradicts facts that may be judicially noticed by the Court, Shwarz, 234 27 F.3d at 435. 28 -2- 1 III. 2 Defendant moves to dismiss Plaintiff’s Complaint pursuant to Federal Rule of 3 Civil Procedure 12(b)(6) because the Complaint fails to state facts sufficient to support a 4 claim for relief. The sole facts alleged in Plaintiff’s Complaint are as follows: 5 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. 6 7 8 9 (Doc. 1-1). Defendant construes this as alleging a Fair Credit Reporting Act claim and asserts 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 -3- 1 by the allegations of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 2 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Because the Court 3 cannot find that Plaintiff’s Complaint could not be cured by allegations of other facts, the 4 Court will give Plaintiff an opportunity to amend his Complaint. 5 V. 6 Based on the foregoing, 7 IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 4) is granted. 8 IT IS FURTHER ORDERED that Plaintiff shall file an amended Complaint 9 within 21 days of the date of this Order. If Plaintiff does not file an amended Complaint, 10 the Clerk of the Court shall dismiss this case with prejudice, without further notice, and 11 enter judgment accordingly. 12 CONCLUSION Dated this 20th day of June, 2012. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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