Martinez v. Universal Background Screening Incorporated

Filing 50

IT IS ORDERED DENYING Guardian's Motion to Dismiss Count 4 39 . (See attached PDF for details). Signed by Senior Judge Frederick J Martone on 6/24/13.(JAMA)

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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 Darlene T. Martinez, 10 Plaintiff, 11 vs. 12 13 14 15 Universal Background Screening, Inc., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-02183-PHX-FJM ORDER 16 17 The court has before it defendant Guardian Investigation and Document Services, 18 Inc.’s motion to dismiss count 4 of the second amended complaint (doc. 39), plaintiff’s 19 response (doc. 43), and Guardian’s reply (doc. 48). 20 I 21 Plaintiff Darlene Martinez alleges that she was denied employment with Scottsdale 22 Healthcare Corporation because Universal Background Screening, Inc. (“UBS”) incorrectly 23 reported that in 2009 she was convicted of felony possession of dangerous drugs and 24 sentenced to ten months in jail and four years probation. The information actually related 25 to a different person named Darlene Ramirez. The false information was allegedly provided 26 to UBS by Guardian Investigation and Document Services, Inc. (“Guardian”). 27 On September 14, 2012, plaintiff filed her original Complaint against UBS only, 28 asserting claims under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x, and the 1 Arizona Consumer Reporting Agencies and Fair Credit Reporting Act, A.R.S. §§ 44-1691- 2 1698.01 (“Arizona Fair Credit Reporting Act”). On February 25, 2013, we granted 3 plaintiff’s motion for leave to amend her complaint to add Guardian and Scottsdale 4 Healthcare as defendants (doc. 23). Defendant Guardian now moves to dismiss Count 4 of 5 the Second Amended Complaint, arguing that the claim is barred by the statute of limitations. 6 7 II 8 Plaintiff alleges in Count 4 that Guardian negligently or willfully violated § 44-1965 9 of the Arizona Fair Credit Reporting Act when it failed to perform a reasonable investigation 10 of plaintiff’s disputes and “verified” to UBS that the false information was correct. The 11 parties agree that the applicable statute of limitations is A.R.S. § 12-541(5), which imposes 12 a one-year filing deadline. 13 Guardian contends that plaintiff’s claim accrued no later than May 16, 2011, the last 14 date that plaintiff disputed the incorrect report. Therefore, according to Guardian, the statute 15 of limitations ran on plaintiff’s state law cause of action no later than May 16, 2012, almost 16 a year before plaintiff first named Guardian as a defendant on February 27, 2013. 17 “A district court may dismiss a claim ‘[i]f the running of the statute [of limitations] 18 is apparent on the face of the complaint.’ ” Cervantes v. Countrywide Home Loans, Inc., 656 19 F.3d 1034, 1045 (9th Cir. 2011) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 20 (9th Cir. 1980)). A complaint cannot be dismissed “unless it appears beyond doubt that the 21 plaintiff can prove no set of facts that would establish the timeliness of the claim.” 22 Hernandez v. City of El Monte, 138 F.3d 393, 402 (9th Cir. 1998) (citation omitted). 23 Under Arizona law, a cause of action accrues and the statute of limitations begins to 24 run when “the plaintiff knows or with reasonable diligence should know the facts 25 underlying” the defendant’s wrongful conduct that caused an injury. Doe v. Roe, 191 Ariz. 26 313, 322, 955 P.2d 951, 960 (1998). “Ordinarily, a cause of action accrues when ‘the 27 plaintiff knows or should have known of both the what and who elements of causation.’” 28 Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 535, 278 P.3d 310, 313 (Ct. App. 2012) -2- 1 (emphasis in original). Therefore, plaintiff’s state law cause of action against Guardian did 2 not accrue until plaintiff knew, or with reasonable diligence should have known, that 3 Guardian supplied UBS with the false information. 4 Although the Second Amended Complaint alleges that, on or about April 12, 2011, 5 plaintiff first learned that UBS had reported the false information, SAC ¶ 22, the complaint 6 is silent as to when plaintiff discovered that Guardian had supplied UBS with the false 7 information. 8 discover who had supplied UBS with the false information until December 24, 2012, after 9 UBS responded to her discovery requests. Within two months of this discovery, plaintiff 10 amended her complaint to assert claims against Guardian. Guardian does not dispute the date 11 that plaintiff first learned of its identity. Instead, it argues that plaintiff failed to exercise 12 reasonable diligence in identifying Guardian as a potential defendant. Plaintiff asserts in her response to the motion to dismiss that she did not 13 A claim may be dismissed on the ground that it is barred by the statute of limitations 14 only when “the face of the complaint establishe[s] facts that foreclose[ ] any showing of 15 reasonable diligence.” Von Saher v. Norton Simon Museum of Art, 592 F.3d 954, 969 (9th 16 Cir. 2010). Because a determination on equitable tolling “often depends on matters outside 17 the pleadings, it is not generally amenable to resolution on a Rule 12(b)(6) motion.” 18 Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (citation omitted). 19 It is not apparent from the face of the Second Amended Complaint that plaintiff’s 20 claim against Guardian under the Arizona Fair Credit Reporting Act is time barred. Because 21 it does not appear beyond doubt that plaintiff can prove no set of facts that would establish 22 the timeliness of her claim, the motion to dismiss on statute of limitations grounds is denied. 23 III 24 IT IS ORDERED DENYING Guardian’s motion to dismiss Count 4 (doc. 39). 25 DATED this 24th day of June, 2013. 26 27 28 -3-

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