Tatro v. Sterling Jewelers Inc. et al
Filing
120
ORDER granting Defendants First Premier Bank and Bill Me Later's Motions to dismiss (Doc. Nos. 74 , 75 ) and denying Defendant Bill Me Later's Motion to dismiss (Doc. Nos. 88 ). Signed by Judge John A. Houston on 12/17/2018. (All non-registered users served via U.S. Mail Service)(jpp)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
SOUTHERN DISTRICT OF CALIFORNIA
9
10
MICHAEL P. TATRO,
Case No.: 17cv1305-JAH (MSB)
Plaintiff,
11
12
v.
13
ORDER GRANTING DEFENDANTS
FIRST PREMIER BANK AND BILL
ME LATER’S MOTIONS TO
DISMISS (Doc. Nos. 74, 75) AND
DENYING DEFENDANT BILL ME
LATER’S MOTION TO DISMISS
(Doc. No. 88)
STERLING JEWELERS, INC., a
Delaware corporation; T-MOBILE,
U.S.A., INC.; a Delaware corporation;
MACY’S RETAIL HOLDINGS, INC., a
New York corporation; TARGET
CORPORATE SERVICES, INC., a
Minnesota corporation; RAC
ACCEPTANCE, LLC, a Delaware
Limited Liability Company; VERIZON
NEW ENGLAND, INC., a New York
corporation; DFS SERVICES, INC., a
Delaware Limited Liability Company,
APPLE INC., a California corporation;
FDS BANK, FSB, A Federal Savings
Bank; SONY ELECTRONICS, INC.,
California corporation; VERIZON
WIRELESS, LLC, A Delaware Limited
Liability Company; NEXTEL
COMMUNICATIONS OF THE MIDATLANTIC., a Delaware corporation;
BILL ME LATER, INC., a Delaware
corporation; DIRECTV, LLC, a California
Limited Liability Company, TD BANK,
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
17cv1305-JAH (MSB)
1
15
USA, NA, a National Banking
Association; CREDIT ONE BANK, NA, a
National Banking Association; FIRST
PREMIER BANK, a National Banking
Association; CAPITAL ONE BANK,
USA, NA. a National Banking
Association; SYNCRONY BANK;
BANK OF AMERICA CORPORATION;
PNC FINANCIAL SERVICES, GROUP,
INC.; MIDLAND CREDIT
MANAGEMENT, INC., a Kansas
corporation; THE NORTHLAND
GROUP, INC., a Minnesota corporation;
WELLS FARGO CARD SERVICES,
INC., a Iowa corporation, WELLS
FARGO BANK, NA, a National Banking
Association; CONSUMERINFO.COM,
INC., a California corporation; CAPITAL
ONE AUTO FINANCE, a Texas
corporation; G.E. CAPITAL
FINANCIAL, TRANS UNION
INTERACTIVE, a California company,
16
Defendants.
2
3
4
5
6
7
8
9
10
11
12
13
14
17
18
INTRODUCTION
19
Pending before the Court is Defendant First Premier Bank’s (“First Premier Bank”)
20
motion to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(2) of the Federal Rules of
21
Civil Procedure. Doc. No. 74. Also pending before the Court is Defendant Bill Me Later’s
22
motions to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of
23
Civil Procedure. Doc. Nos. 75, 88. The motions are fully briefed and unopposed. The
24
Court construes Bill Me Later’s second motion to dismiss (Doc. No. 88) as duplicative of
25
Bill Me Later’s first motion to dismiss (Doc. No. 75). After careful review of the pleadings,
26
and for the reasons set forth below, the Court GRANTS First Premier Bank’s motion to
27
dismiss (Doc. No. 74); GRANTS Bill Me Later’s first motion to dismiss (Doc. No. 75);
28
and DENIES Bill Me Later’s second motion to dismiss (Doc. No. 88) as moot.
2
17cv1305-JAH (MSB)
1
BACKGROUND
2
On June 26, 2017, Plaintiff filed a complaint against all named defendants, alleging
3
they mishandled his financial information. See Doc. No. 1. Plaintiff alleges federal claims
4
under the Fair Credit Reporting Act (“FCRA”) and Fair Debt Collection Practices Act
5
(“FDCPA”). Id. Plaintiff also alleges Rhode Island state law claims. Id. Specifically,
6
Plaintiff makes the following claims: (1) Willful, wanton, and reckless disregard; (2)
7
Violations of the Fair Credit Reporting Act (“FRCA”); (3) Violations of Rhode Island’s
8
Impersonation and Identity Fraud Act; and (4) Intrusion on Plaintiff’s Rhode Island state
9
law right to privacy. Id. On March 13, 2018, First Premier Bank filed a motion to dismiss
10
pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for a lack of personal
11
jurisdiction. Doc. No. 74. On the same day, March 13, 2018, Bill Me Later filed a motion
12
to dismiss pursuant to Rule 12(b)(6) of Federal Rules of Civil Procedure for failure to state
13
a claim. Doc. No. 75. On April 23, 2018, Plaintiff filed a document requesting additional
14
time to respond to Defendants’ motions to dismiss. Doc. No. 78. Plaintiff filed what the
15
Court construes to be a motion to stay proceedings on the same day, April 23, 2018. Doc.
16
No. 79. On May 2, 2018, this Court GRANTED Plaintiff’s motion to stay proceedings and
17
stayed proceedings until July 1, 2018. On July 25, 2018, Bill Me Later filed what the Court
18
construes to be an identical motion to dismiss (Doc. No. 88) to the motion filed on March
19
13, 2018 (Doc. No. 75).
20
The Ninth Circuit has held that a district court may properly grant a motion to
21
dismiss as unopposed pursuant to a local rule where the local rule permits, but does not
22
require, the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52,
23
53 (9th Cir. 1995). Civil Local Rule 7.1.f.3.c provides that “[i]f an opposing party fails to
24
file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may
25
constitute a consent to the granting of a motion or other request for ruling by the court.”
26
Although the Court may grant Defendants’ motions to dismiss as unopposed, in the
27
interests of justice, the Court addresses the merits below.
28
//
3
17cv1305-JAH (MSB)
1
2
3
DISCUSSION
I.
Legal Standard
a. Rule 12(b)(2)
4
Under Rule 12(b)(2), a court may dismiss a case for lack of jurisdiction over the
5
person. The Ninth Circuit has established a two prong test for determining if the Court’s
6
assertion of personal jurisdiction is proper. Jurisdiction must comport with: (1) the state
7
long-arm statute, and (2) the constitutional requirement of due process. Mattel, Inc., v.
8
Greiner & Hausser GMBH, 354 F.3d 857, 863 (9th Cir. 2003) (quoting Ziegler v. Indian
9
River County, 64 F.3d 470, 473 (9th Cir. 1995)).
10
As to the first prong, California’s long arm statute provides that “a court of this state
11
may exercise jurisdiction on any basis not inconsistent with the Constitution of this State
12
or of the United States.” Cal. Civ. Proc. Code § 410.10. Because California law allows the
13
exercise of jurisdiction to the same extent as due process under the United States
14
Constitution, the only question is whether the exercise of jurisdiction over the defendant is
15
constitutional. See Mattel, 354 F.3d at 863. Under a due process analysis, the Court may
16
only exercise jurisdiction in accord with “traditional notions of fair play and substantial
17
justice,” thus the nonresident defendant is required to have “certain minimum contacts”
18
with the forum state in order for jurisdiction to be proper. Id. (quoting International Shoe
19
Co. v. Washington, 326 U.S. 310, 316 (1945)).
20
Personal jurisdiction may be found where the defendant’s activities subject him to
21
either general or specific jurisdiction. General jurisdiction exists where a nonresident
22
defendant’s activities within a state are “substantial” or “continuous and systematic.” Data
23
Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977).
24
In the absence of general jurisdiction, a nonresident defendant may still be sued in the
25
forum if specific jurisdiction exists. Id. The Ninth Circuit has established a three part test
26
to determine whether there is specific jurisdiction over a defendant:
27
28
‘Specific’ jurisdiction exists if (1) the defendant has performed some act or
consummated some transaction within the forum or otherwise purposefully availed
4
17cv1305-JAH (MSB)
1
2
himself of the privilege of conducting activities in the forum, (2) the claim arises out
of or results from the defendant’s forum-related activities, and (3) the exercise of
jurisdiction is reasonable.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Mattel, 354 F.3d at 863 (quoting Bancroft & Masters v. Augusta Nat’l Inc., 223 F.3d 1082,
1086 (9th Cir. 2000)).
b. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule
12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter
Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319,
326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a
dispositive issue of law.”). Alternatively, a complaint may be dismissed where it presents
a cognizable legal theory yet fails to plead essential facts under that theory. Robertson,
749 F.2d at 534. While a plaintiff need not give “detailed factual allegations,” he must
plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially
plausible when the factual allegations permit “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. In other words, “the
nonconclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret Service,
572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a plausible
claim for relief will ... be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950.
When ruling on a motion to dismiss, the Court may consider the facts alleged in the
complaint, documents attached to the complaint, documents relied upon but not attached
5
17cv1305-JAH (MSB)
1
to the complaint when authenticity is not contested, and matters of which the Court takes
2
judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court
3
determines that a complaint fails to state a claim, the court should grant leave to amend
4
unless it determines that the pleading could not possibly be cured by the allegation of other
5
facts.
6
II.
Analysis
7
First Premier Bank argues that this Court does not have general jurisdiction because
8
First Premier Bank is not headquartered or incorporated in California. Doc. No. 74 at pgs.
9
4-5. First Premier Bank also contends that this Court does not have specific jurisdiction
10
because First Premier Bank does not have any connections to California. Id. at pgs. 5-6.
11
Bill Me Later argues that there is no such cause of action as “willful, wanton, and
12
reckless disregard.” Doc. 75-1 at pg. 9. Bill Me Later contends that even if this cause of
13
action was interpreted as an FCRA claim, it is still duplicative of the second cause of action.
14
Id. Bill Me Later argues that Plaintiff fails to allege facts to state a claim under the FCRA.
15
Id. at pgs. 9-10. Bill Me Later asserts Plaintiff fails to show that Bill Me Later engaged in
16
any ‘willful’ wrongdoing. Id. at pgs. 10-11. Bill Me Later contends that Plaintiff does not
17
have standing under Rhode Island law, and Rhode Island law is irrelevant in this case. Id.
18
at pgs. 11-12. Bill Me Later asserts that Plaintiff’s allegations are legal conclusions and
19
insufficient. Id. at pg. 12. Bill Me Later argues that Plaintiff’s Rhode Island claims are
20
untimely. Id. at pgs. 12-13.
21
The Court will first address First Premier Banks’ motion to dismiss for lack of
22
jurisdiction. The Court will then address Bill Me Later’s motions to dismiss for failure to
23
state a claim.
24
a. Personal Jurisdiction
25
Plaintiff bears the burden of making a prima facie showing that jurisdiction is proper.
26
Mattel, 354 F.3d at 862 (citing Harris Rutsky, 328 F.3d at 1128). “To make that showing,
27
[a plaintiff] need only demonstrate facts that, if true, would support jurisdiction over the
28
[d]efendants.” Id. The Court finds that Plaintiff does not make a prima facie showing that
6
17cv1305-JAH (MSB)
1
this Court has personal jurisdiction over First Premier Bank. First Premier Bank is not
2
headquartered or incorporated in California. See Doc. No. 74 at pgs. 4-5. Further, Plaintiff
3
does not show that First Premier Bank has sufficient contacts with the state of California.
4
“‘Conflicts between the facts contained in the parties’ affidavits must be resolved in
5
[plaintiff’s] favor for purposes of deciding whether a prima facie case for personal
6
jurisdiction exists.’” AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.
7
1996); see also Doe v. Unocal Corp.,, 922 (9th Cir. 2001). The Court finds here, there is
8
no conflict of facts, but rather Plaintiff has not alleged facts to make a prima facie showing
9
that jurisdiction is proper. Thus, the Court GRANTS First Premier Bank’s motion to
10
dismiss (Doc. No. 74).
11
b. Failure to State a Claim
12
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the
13
truth of all factual allegations and must construe all inferences from them in the light most
14
favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002);
15
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). This Court follows
16
Ninth Circuit rule in noting that legal conclusions need not be taken as true merely because
17
they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200
18
(9th Cir. 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The
19
Court finds while Plaintiff asserts that he was a customer of Bill Me Later, Plaintiff does
20
not plead sufficient facts to suggest Bill Me Later engaged in any wrongdoing. Plaintiff
21
asserts that he was not involved in the credit transactions when the alleged wrongdoing
22
occurred, but Plaintiff does not adequately plead Bill Me Later’s wrongdoing in those
23
credit transactions. Plaintiff does not offer any facts in support of his claims against Bill
24
Me Later. The Court finds Plaintiff fails to “raise a right to relief above the speculative
25
level.” See Twombly, 550 U.S. at 545. Thus, the Court GRANTS Bill Me Later’s motion
26
to dismiss (Doc. No. 75). Accordingly, the Court DENIES Bill Me Later’s second motion
27
to dismiss (Doc. No. 88) as moot because it is duplicative.
28
//
7
17cv1305-JAH (MSB)
1
CONCLUSION
2
Based on the foregoing reasons, IT IS HEREBY ORDERED THAT Defendant
3
First Premier Bank and Defendant Bill Me Later’s motions to dismiss (Doc. Nos. 74, 75)
4
are GRANTED. Plaintiff’s complaint against Defendants First Premier Bank and Bill Me
5
Later is DISMISSED without prejudice. Defendant Bill Me Later’s second motion to
6
dismiss (Doc. No. 88) is DENIED as moot.
7
8
IT IS SO ORDERED.
9
10
DATED: December 17, 2018
11
12
13
_________________________________
JOHN A. HOUSTON
United States District Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
17cv1305-JAH (MSB)
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?