Finley v. CapitalOne et al
Filing
93
ORDER by Judge Yvonne Gonzalez Rogers granting 87 Defendant Capital One Bank (USA), N.A.'s Motion to Dismiss. Plaintiff's claims are therefore dismissed with prejudice. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 7/7/2017)
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
6
LATONYA R. FINLEY,
Case No. 16-cv-01392-YGR
Plaintiff,
7
ORDER GRANTING DEFENDANT CAPITAL
ONE BANK (USA), N.A.’S MOTION TO
DISMISS
v.
8
9
CAPITAL ONE, ET AL.,
Re: Dkt. Nos. 87, 89
Defendants.
10
United States District Court
Northern District of California
11
12
Plaintiff LaTonya R. Finley brings this action against defendant Capital One Bank (USA),
13
N.A. (“Capitol One”).1 Plaintiff filed her initial complaint on September 22, 2016. (Dkt. No. 1.)
14
Capitol One moved for judgment on the pleadings on December 23, 2016, (Dkt. No. 65), and the
15
Court granted defendant’s motion on April 14, 2017. (Dkt. No. 85, “Order Granting MJOP”.) The
16
Court dismissed with prejudice plaintiff’s state law claims but granted plaintiff leave to amend her
17
claim under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq.2 In granting
18
plaintiff leave to amend, the Court specifically instructed plaintiff that to state a claim under the
19
FCRA plaintiff must allege “what inaccurate information Capital One furnished” to a credit
20
reporting agency (“CRA”), “facts indicating that the CRA notified [Capitol One] of the dispute
21
over the inaccurate information”, and “why [Capitol One’s] investigation of the [alleged
22
inaccurate information] was unreasonable.” (Id. ¶¶ 3–5.)
23
Plaintiff filed a three-page amended complaint on April 26, 2017, alleging one count under
24
1
25
26
In her initial complaint, plaintiff also asserted claims against Equifax, TransUnion LLC,
and Experian Information Solutions, Inc. Plaintiff has since reached settlements and dismissed
each. (Dkt. Nos. 47, 57 and 83.)
2
27
28
15 U.S.C. § 1681s-2(b) is the FCRA’s only section that allows for a private right of
action against furnishers. See Giovanni v. Bank of Am., Nat. Ass'n, No. C 12-02530 LB, 2013 WL
1663335, at *5 (N.D. Cal. Apr. 17, 2013).
1
the FCRA. (Dkt. No. 86, First Amended Complaint (“FAC”).) Plaintiff alleges generally that
2
Capital One, as a furnisher of information to CRAs, reported “derogatory information about
3
plaintiff.” (Id. ¶ 5.) Plaintiff also contends that Capital One “failed to conduct an investigation of
4
plaintiff [sic] written dispute and provide the results of an investigation to plaintiff within the 30
5
days period as required by 15 U.S.C. § 1681s-2.” (Id. ¶ 10.)
6
Capital One now moves to dismiss the FAC. (Dkt. No. 87.) Plaintiff filed her opposition
brief on May 30, 2017.3 (Dkt. No. 88.) Capitol One filed its reply brief on June 2, 2017.4 (Dkt.
8
No. 90.) Having carefully considered the papers and for the reasons discussed below, the Court
9
concludes that plaintiff has failed to state a claim under the FCRA. Accordingly, the Court
10
GRANTS Capital One’s motion to dismiss. Because plaintiff was previously provided with
11
United States District Court
Northern District of California
7
specific guidance on what was required to state a claim under the FCRA and could not so plead,
12
the Court finds that further amendment would be futile and a waste of judicial and party resources.
13
See Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (holding that a district court does not
14
15
16
17
18
19
20
21
22
23
24
25
26
27
3
Plaintiff has submitted documents for judicial notice in connection with her opposition to
defendant’s motion to dismiss. (Dkt. No. 89.) These documents include credit card statements,
receipts, a car rental agreement, and a letter from plaintiff to defendant challenging reporting on
plaintiff’s account. Defendant argues that the judicial notice of these documents is inappropriate
pursuant to Federal Rule of Evidence 201 because the documents (i) are not “generally known
within the trial court’s territorial jurisdiction” and (ii) cannot be “accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” (Dkt. No. 91.)
Defendants further argue that one of the documents at issue “appears to be fabricated.” (Id. at 1.)
The Court finds that the documents at issue do not satisfy Rule 201. The documents at issue are
not facts that can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned. Therefore, plaintiff’s request for judicial notice is DENIED.
4
Defendant also requests that the Court strike plaintiff’s opposition brief as untimely on
the grounds that the opposition was allegedly filed on May 30, 2017, five days after plaintiff’s
opposition was due pursuant to Local Rule 7-3(a). The Court declines. Plaintiff is pro se and not
authorized to file on the Court’s electronic case filing system. Plaintiff’s opposition brief is dated
May 24, 2017, one day before the opposition was due. However, the filing was not stamped until
six days later. The Court notes there is some ambiguity as to when the opposition was actually
mailed, as the original envelope is unavailable. Because the Court is granting defendant’s motion
to dismiss with prejudice, defendant’s request to strike plaintiff’s opposition as untimely is
DENIED. The Court will thus consider plaintiff’s opposition and address below the argument made
therein.
28
2
1
err in denying leave to amend where the amendment would be futile or where the amended
2
complaint would be subject to dismissal). Therefore plaintiff’s FAC is DISMISSED WITH
3
PREJUDICE.
4
5
I. FACTUAL ALLEGATIONS
Plaintiff’s claim arises from alleged violations of the FCRA. In her three-page amended
6
complaint, plaintiff avers that Capitol One reported “derogatory information about plaintiff” and
7
“furnished false or misleading representations . . .” to one or more CRAs. (FAC ¶ 5.) Finley
8
further alleges that she “disputed the inaccuracy of the derogatory information.”5 (Id. ¶ 6.)
9
10
United States District Court
Northern District of California
11
12
Finally, plaintiff avers that defendant “failed to complete an investigation” of plaintiff’s written
dispute. (Id. ¶ 10.)
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in
the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). “Dismissal can be
13
based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a
14
15
16
17
cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
All allegations of material fact are taken as true and construed in the light most favorable to the
plaintiff. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). To survive a
motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
18
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
19
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
20
21
III. DISCUSSION
Capital One asserts that plaintiff fails to state a claim under the FCRA. To state such a
22
claim against a “furnisher”—i.e., Capital One—a plaintiff must plead, with enough facts, that (1)
23
the furnisher provided inaccurate information to a CRA; (2) a CRA notified the furnisher of the
24
dispute; and (3) the furnisher failed to conduct a reasonable investigation into the accuracy of the
25
26
27
28
5
Plaintiff instructs the Court to “[s]ee attachment” regarding this allegation, but her
pleading apparently includes no such attachment. Regardless, for the purposes of this motion to
dismiss, the Court accepts as true plaintiff’s allegation that plaintiff notified Capitol One that she
disputed in writing the inaccuracy of the allegedly derogatory information.
3
1
disputed information. Hernandez v. Wells Fargo Home Mortg., No. 2:14-CV-1500 JCM VCF,
2
2015 WL 1204985, at *2 (D. Nev. Mar. 16, 2015) (citing Middleton v. Plus Four, Inc., No. 2:13-
3
CV-01421-GMN-GW, 2014 WL 910351, at *3 (D. Nev. Mar. 7, 2014)); see also Gorman v.
4
Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154–61 (9th Cir. 2009). Finally, a plaintiff must
5
allege facts that show that the defendant furnisher acted either willfully or negligently. See
6
Gorman, 584 F.3d at 1154. The Court addresses each of the four requirements below.6
1. Furnisher Must Provide Inaccurate Information to CRA
7
8
First, to state a claim against a furnisher under section 1681s-2(b) of the FCRA, a plaintiff
must allege that an “actual inaccuracy exists” on her credit report. Keller v. Experian Info. Sols.,
10
Inc., No. 16-CV-04643-LHK, 2017 WL 130285, at *5 (N.D. Cal. Jan. 13, 2017) (citing Carvalho
11
United States District Court
Northern District of California
9
v. Equifax Info. Servs., LLC, 629 F.3d 876, 890 (9th Cir. 2010)). “Thus, even if a furnisher . . .
12
fails to conduct a reasonable investigation . . . . if a plaintiff cannot establish that a credit report
13
contained an actual inaccuracy, then the plaintiff’s claims fail.” Id. (internal quotation marks
14
omitted).
15
Here, the FAC does not identify what inaccurate information Capital One furnished to the
16
CRAs Equifax, TransUnion, and Experian. Plaintiff simply alleges that Capitol One reported
17
“derogatory information” including “false or misleading representations of debt.” (FAC ¶¶ 5, 11.)
18
This is not sufficient. As the Court stated in its Order Granting MJOP, plaintiff must allege the
19
inaccurate information which Capital One provided to a CRA. Finley has not done so, and for that
20
reason alone defendant’s motion to dismiss is GRANTED. However, the Court proceeds to discuss
21
the other deficiencies of the FAC with regard to the remaining elements of the FCRA.
22
//
23
6
24
25
26
27
Plaintiff relies on Federal Rule of Civil Procedure 8(a) to argue that “these or any other
missing ingredients are [not], in fact, required in the plaintiff’s compliant.” Fed. R. Civ. P. 8(a)
(stating that a complaint should contain “a short and plain statement of the claim showing that the
pleader is entitled to relief). Plaintiff does not persuade. As discussed below, Finley’s complaint
wholly fails to alleged sufficient facts to “show[]that [Finley] is entitled to relief,” Id., let alone
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v, 556 U.S. at 678 (quoting Bell Atl. Corp., 550 U.S. at 557).
28
4
2. CRA Must Notify Furnisher of the Dispute
1
2
The second element of a claim under the FCRA requires plaintiff to allege facts indicating
3
that the CRA notified the furnisher of the dispute over the inaccurate information. See 15 U.S.C. §
4
1681s-2. Under section 1681s-2, a furnisher’s responsibilities are not triggered unless the furnisher
5
receives “notice . . . of a dispute with regard to the completeness or accuracy of any information
6
provided by [the furnisher] to a [CRA] . . . .” (Id.)
7
Here, plaintiff does not allege that any CRAs notified Capital One of plaintiff's dispute. To
8
the contrary, Finley alleges that she notified Capitol One of the dispute.” (FAC ¶ 7.) This is not
9
sufficient.
3. Furnisher Must Fail to Conduct a Reasonable Investigation
11
United States District Court
Northern District of California
10
Third, a plaintiff must allege that the furnisher failed to conduct a reasonable investigation
12
after being notified of the alleged inaccuracy by a CRA. See Gorman, 584 F.3d at 1156 (holding
13
that a furnisher’s investigation pursuant to section 1681s-2(b)(1)(A) may not be unreasonable).
14
Furthermore, a plaintiff must allege that the furnisher’s investigation was indeed unreasonable.
15
See, e.g., Abbot v. Experian Info. Sols., Inc., 179 F. Supp. 3d 940, 945 (N.D. Cal. 2016)
16
(“Plaintiff’s conclusory allegation that [the furnisher] ‘failed to conduct a reasonable
17
[investigation]’ is insufficient to plausibly allege that [the furnisher] conducted an unreasonable
18
investigation in violation of the FCRA . . . .”).
19
Here, plaintiff simply alleges that “Capital One . . . failed to complete an investigation” of
20
plaintiff’s dispute. Again, this is not enough because plaintiff fails to plead that the investigation
21
followed notification by a CRA. Further, plaintiff must allege why the investigation was
22
unreasonable. Similarly, plaintiff’s bare allegation that it did not provide the results of the
23
investigation within 30 days is not sufficient. An investigation is not unreasonable simply because
24
its conclusion is unfavorable to the consumer, “even if that conclusion turns out to be inaccurate.”
25
Gorman, 584 F.3d at 1161. The Court finds that plaintiff has not alleged any grounds supporting
26
an inference that the investigation was unreasonable. Plaintiff has therefore not alleged this
27
element.
28
//
5
4. Furnisher Must Act Willfully or Negligently
1
2
Fourth, a plaintiff must allege facts supporting a plausible inference that the furnisher acted
3
willfully or negligently with respect to any purported FCRA violation. Id. at 1154 (“The FCRA
4
expressly creates a private right of action for willful or negligent noncompliance with its
5
requirements.”). Here, plaintiff does not allege any facts that give rise to a plausible inference that
6
Capitol One acted willfully or negligently. Therefore the claim fails for this reason as well.
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
For the foregoing reasons, plaintiff fails to state a claim under the FCRA. Defendant’s
motion is GRANTED on these grounds.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Capital One’s motion to dismiss.
Plaintiff’s claims are therefore DISMISSED WITH PREJUDICE.
This Order terminates Docket Nos. 87 and 89. As all other defendants have been
dismissed, the Clerk shall close the file.
IT IS SO ORDERED.
Dated: July 7, 2017
16
17
18
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?