Moore v. Exeter Finance Corp. et al

Filing 36

ORDER SUBMITTING 21 DEFENDANT EXETER'S MOTION TO DISMISS WITHOUT ORAL ARGUMENT; VACATING MOTION HEARING; AND DENYING 21 MOTION. Signed by Judge Beth Labson Freeman on 1/29/2018. (blflc1S, COURT STAFF) (Filed on 1/29/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SEELY MOORE,
Plaintiff,

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v.
EXETER FINANCE CORP., et al.,
Defendants.

Case No. 17-cv-04082-BLF
ORDER SUBMITTING DEFENDANT
EXETER’S MOTION TO DISMISS
WITHOUT ORAL ARGUMENT;
VACATING MOTION HEARING; AND
DENYING MOTION
[Re: ECF 21]

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United States District Court
Northern District of California

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Defendant Exeter Finance LLC moves to dismiss Plaintiff Seely Moore’s complaint under

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Federal Rule of Civil Procedure 12(b)(6). The complaint asserts claims against Exeter for

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violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the California

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Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code § 1785.25(a), based

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on Exeter’s allegedly inaccurate reporting of a debt as “charged off i.e. delinquent” after the debt

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was discharged in Plaintiff’s Chapter 7 bankruptcy. Compl. ¶¶ 50-51, 61- 72, ECF 1. Plaintiff has

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dismissed all FCRA claims against Exeter, however, leaving only a single CCRAA claim (Claim

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6) for evaluation under Rule 12(b)(6). See Order for Dismissal of FCRA Claim, ECF 35. The

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Court SUBMITS Exeter’s motion without oral argument and VACATES the hearing set for

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February 8, 2018. See Civ. L.R. 7-1(b). The motion is DENIED for the reasons discussed below.

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“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

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claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force

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v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted).

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While a complaint need not contain detailed factual allegations, it “must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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The CCRAA provides in relevant part that: “A person shall not furnish information on a
specific transaction or experience to any consumer credit reporting agency if the person knows or

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should know the information is incomplete or inaccurate.” Cal. Civ. Code § 1785.25(a). Plaintiff

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alleges that the Exeter debt was discharged in bankruptcy in December 2016; Exeter thereafter

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reported the debt as “charged off i.e. delinquent”; and Exeter knew or should have known such

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reporting was incomplete or inaccurate. Compl. ¶¶ 50-51, 61- 72, 129-34, ECF 1.

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Exeter does not challenge the legal sufficiency of Plaintiff’s CCRAA claim as alleged.

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Exeter instead disputes Plaintiff’s factual allegations, asserting that it did not report the debt as

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“charged off i.e. delinquent” post-discharge, but in fact reported the debt as discharged through

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Chapter 7 bankruptcy, the outstanding balance as $0, and the account as closed. Motion at 1-2,

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ECF 21-1. In support of its position, Exeter submits an automated credit dispute verification
(“ACDV”) which it transmitted to third party TransUnion LLC in April 2017. Collins Decl. ¶¶ 2-

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United States District Court
Northern District of California

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3 & Exh. A, ECF 21-2. Exeter asks the Court to consider the ACDV under the incorporation by

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reference doctrine, which permits a court to consider documents referenced in but not physically

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attached to the complaint. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

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Exeter argues that the incorporation by reference doctrine is implicated by paragraph 59 of

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the complaint, which alleges that “Plaintiff is informed and believes that each CRA received

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Plaintiff’s dispute letter and in response sent Plaintiff’s dispute to each DF via an ACDV through

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e-OSCAR.” Compl. ¶ 59, ECF 1. Because that paragraph does not refer to any particular ACDV,

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the Court is not persuaded that the ACDV submitted by Exeter may be considered in connection

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with the motion to dismiss. But even if the Court were to consider it, evidence of the manner in

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which Exeter reported the debt to one credit reporting agency, TransUnion, does not render

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implausible Plaintiff’s specific allegation that Exeter reported the debt improperly to a different

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credit reporting agency, Experian. See Compl. ¶ 61 (“Defendant Exeter reported to Experian that

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Plaintiff’s account, beginning in 68068 was charged off i.e. delinquent in April of 2017, nearly

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four months after Plaintiff received a chapter 7 discharge.”).

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Accordingly, Exeter’s motion to dismiss Plaintiff’s CCRAA claim (Claim 6) is DENIED.

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Dated: January 29, 2018

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BETH LABSON FREEMAN
United States District Judge
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