Ortiz v. Equifax Credit Information Solutions, Inc. et al

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/9/2018 GRANTING 2 Motion to Proceed IFP and DIMISSING 1 Complaint with leave to amend. Plaintiff is GRANTED 30 days from the date of this order to file an amended complaint. (Fabillaran, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RENE ORTIZ,

12

Plaintiff,

13
14
15

No. 2:17-cv-530-MCE-EFB PS

v.

ORDER

EQUIFAX CREDIT INFORMATION
SOLUTIONS, INC., RICHARD F.
SMITH,

16

Defendants.

17
18

Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Her

19

declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

20

Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

21

Determining that plaintiff may proceed in forma pauperis does not complete the required

22

inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

23

allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

24

which relief may be granted, or seeks monetary relief against an immune defendant. As discussed

25

below, plaintiff’s complaint fails to state a claim and must be dismissed.

26

/////

27
28

1

This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
1

1

Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

2

520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

3

fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

4

Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

5

(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

6

his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

7

a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

8

relief above the speculative level on the assumption that all of the complaint’s allegations are

9

true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

10

legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

11

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

12

Under this standard, the court must accept as true the allegations of the complaint in

13

question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

14

pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

15

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading

16

requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a

17

complaint to include “a short and plain statement of the claim showing that the pleader is entitled

18

to relief, in order to give the defendant fair notice of what the claim is and the grounds upon

19

which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

20

Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

21

those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

22

511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

23

confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

24

requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

25

“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

26

authorized by a federal statute that both regulates a specific subject matter and confers federal

27

jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

28

jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the
2

1

matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

2

Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

3

of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

4

subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

5

Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

6

Plaintiff brings this action against Equifax Credit Information Solutions (“Equifax”) and

7

its Chief Executive Officer, Richard F. Smith, alleging claims for violation of the Fair Credit

8

Reporting Act (“FCRA”). ECF No. 1. His complaint alleges that Equifax issued a consumer

9

credit report for plaintiff that included inaccurate information regarding an account with the

10

Social Security Administration. Id. at 6. Plaintiff notified Equifax that he disputed the

11

information provided on the credit report. Although Equifax subsequently informed the

12

“furnishers of information of plaintiff’s disputes,” the “information continued to be reported on

13

plaintiff’s credit report.” Id. Plaintiff alleges causes of action for willful and negligent

14

noncompliance with the FCRA based on defendants alleged failure to comply with 15 U.S.C.

15

§§ 1681e(b), 1681i, 1681g. Id.

16

The complaint’s allegations are too vague and conclusory to state a claim for violation of

17

the FCRA. “In order to make out a prima facie violation under § 1681e(b), a consumer must

18

present evidence tending to show that a credit reporting agency prepared a report containing

19

inaccurate information. The FCRA does not impose strict liability, however—an agency can

20

escape liability if it establishes that an inaccurate report was generated despite the agency’s

21

following reasonable procedures.” Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333

22

(9th Cir.1995) (citations omitted). 15 U.S.C. 1681i requires credit reporting agencies to

23

reinvestigate the completeness or accuracy of an item of information when notified of a dispute

24

by the consumer. 15 U.S.C. § 1681i (1)(A). Like section 1681e(b), section 1681i requires a

25

plaintiff to make a “prima facie showing of inaccurate reporting.” Dennis v. BEH-1, LLC, 520

26

F.3d 1066, 1069 (9th Cir. 2008). Under the FCRA, information can be inaccurate either “because

27

it is patently incorrect, or because it is misleading in such a way and to such an extent that it can

28

be expected to adversely affect credit decisions.” Gorman v. Wolpoff & Abramson, LLP, 584
3

1

F.3d 1147, 1163 (9th Cir. 2009); see Prianto v. Experian Info. Solutions, Inc., No. CV 13–03461–

2

TEH, 2014 WL 3381578, *3 (N.D. Cal. July 10, 2014) (“Thus, Plaintiff must allege facts

3

sufficient to state a claim that a CRA published a report containing patently inaccurate or

4

materially misleading information in order to state a prima facie case for relief under sections

5

1681e(b) and 1681i(1)(A).”).

6

Here, plaintiff merely provides her conclusion that defendants failed to comply with 15

7

U.S.C. §§ 1681e(b) and 1681i by reporting and failing to correct inaccurate information on her

8

credit report. Such conclusory allegations fail to provide defendant notice of the basis for her

9

claims, and therefore fail to state a claim for relief. Twombly, 550 U.S. at 562-563. Likewise,

10

plaintiff fails to state a claim for violation of the FCRA premised on a failure to comply with

11

§ 1681g. That section governs disclosures of information by consumer reporting agencies to

12

consumers, see 15 U.S.C. § 1681g, but the complaint is devoid of any allegations suggesting that

13

defendants failed to follow the disclosure procedures mandated by the FCRA.

14

Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff

15

is granted leave to file an amended complaint to allege, if she can, a cognizable legal theory

16

against a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v.

17

Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se

18

litigants an opportunity to amend to correct any deficiency in their complaints). Should plaintiff

19

choose to file an amended complaint, the amended complaint shall clearly set forth the allegations

20

against defendant and shall specify a basis for this court’s subject matter jurisdiction. Any

21

amended complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as

22

practicable to a single set of circumstances,” as required by Federal Rule of Civil Procedure

23

10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as

24

required by Eastern District of California Local Rules 130(b) and 130(c). Any amended

25

complaint shall also use clear headings to delineate each claim alleged and against which

26

defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts

27

that support each claim under each header.

28

/////
4

1

Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

2

make an amended complaint complete. Local Rule 220 requires that an amended complaint be

3

complete in itself. This is because, as a general rule, an amended complaint supersedes the

4

original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

5

plaintiff files an amended complaint, the original no longer serves any function in the case.

6

Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

7

alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

8

1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

9

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

10

comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

11

may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.

12

Accordingly, IT IS ORDERED that:

13

1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

14

2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

15

3. Plaintiff is granted thirty days from the date of service of this order to file an amended

16

complaint. The amended complaint must bear the docket number assigned to this case and must

17

be labeled “First Amended Complaint.” Failure to timely file an amended complaint in

18

accordance with this order will result in a recommendation this action be dismissed.

19

DATED: January 9, 2018.

20
21
22
23
24
25
26
27
28
5