Rosciano v. Experian et al

Filing 51

ORDER that Defendant Midland's Motion to Dismiss Plaintiff's Amended Complaint Under Rule 12(b)(6) (Doc. 47 ) is granted. The Clerk shall terminate this case as against Defendant Midland. See order for details. Signed by Judge Neil V. Wake on 4/1/15. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Rosciano,

No. CV-14-02102-PHX-NVW
Plaintiff,

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v.

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ORDER

Experian, et al.,

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Defendants.

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Before the court is Defendant Midland’s Motion to Dismiss Plaintiff’s Amended
Complaint Under Rule 12(b)(6) (Doc. 47). Plaintiff has not filed a response.

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The court previously granted Midland’s original motion to dismiss, finding that

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Plaintiff had failed to state a claim upon which relief can be granted as against Midland.

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(Doc. 39.)

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granted Plaintiff leave to amend his complaint. The First Amended Complaint (Doc. 43),

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filed February 17, 2015, fails to correct the defects in Plaintiff’s original Complaint (Doc.

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1). As they did in the original Complaint, Plaintiff’s first two causes of action still either

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rely on facts that Plaintiff has not pled or seek damages under statutory provisions

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inapplicable to a debt-collector defendant such as Midland. Alleging that the three

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defendants Plaintiff has named were acting “in concert” (Doc. 43 at 4) does not cure this

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deficiency, as the court has previously explained. (Doc. 39 at 4.) And even assuming T-

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Mobile violated the Fair Credit Reporting Act by reporting on his credit negatively,

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Because Plaintiff is proceeding in propria persona, however, the court

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Plaintiff has cited no authority for the view that Midland assumed responsibility for that

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conduct through its subsequent purchase of Plaintiff’s debt to T-Mobile.

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The First Amended Complaint adds a third cause of action alleging, in its entirety,

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“By reason of foregoing, defendant has caused plaintiff’s credit to be wrongly reported

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and slandered, all to his proximate cause and damages.” (Doc. 43 at 5.) It is not clear to

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whom the “defendant” in the third cause of action refers. But even if it refers to Midland,

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Plaintiff has failed to state a claim. To prevail on a cause of action for slander, a plaintiff

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must show that the defendant made a false and defamatory statement, that the statement

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was published to a third party, and that the defendant was at fault, which “may consist of

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knowledge of falsity, reckless disregard of truth or falsity, or negligence.” See Boswell v.

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Phx. Newspapers, 152 Ariz. 1, 3 & n.1, 730 P.2d 178, 180 & n.1 (Ct. App. 1985)

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(citations omitted). Here, the First Amended Complaint nowhere alleges that Midland

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made any statements about Plaintiff, much less false and defamatory statements that were

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published to a third party with fault. Plaintiff claims that “defendants reported [his

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failure to pay] upon his credit derogatively” and “[d]efendants . . . reported the event

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derogatorily notwithstanding the letter and facts of the matter.” (Doc. 43 at 3 (ellipsis in

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original).) But this kind of collective, unspecified pleading is insufficient to state a claim.

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And in any event, these allegations appear in Plaintiff’s first cause of action, which

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asserts violations of statutory provisions that cannot apply to Midland. Plaintiff has

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failed to state a claim upon which relief can be granted.

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IT IS THEREFORE ORDERED that Defendant Midland’s Motion to Dismiss

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Plaintiff’s Amended Complaint Under Rule 12(b)(6) (Doc. 47) is granted. The Clerk

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shall terminate this case as against Defendant Midland.

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Dated: April 1st, 2015.

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Neil V. Wake
United States District Judge

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