Katz et al v. American Express Company

Filing 86

ORDER (1) GRANTING DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.'S MOTION TO DISMISS "FINAL AMENDED COMPLAINT," DOC. NO. 70 ; (2) GRANTING IN PART AND DENYING IN PART DEFENDANT EQUIFAX, INC.'S SUBSTANTIVE JOINDER IN DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.'S MOTION TO DISMISS; DOC. NO. 81 ; AND (3) GRANTING DEFENDANT AMERICAN EXPRESS TRAVEL RELATED SERVICE 'S MOTION TO DISMISS "FINAL AMENDED COMPLAINT," DOC. NO. 68 . Signed by JUDGE J. MICHAEL SEABRIGHT on 11/18/2014. Excerpt of conclusion: "Plaintiffs are granted leave to file a Third Am ended Complaint by December 16, 2014. If Plaintiffs choose not to file a Third Amended Complaint by December 16, 2014, this action will proceed on Plaintiffs' FCRA claim against Transunion and Equifax (to the extent based on Equifax's fail ure to respond to Plaintiffs' complaint regarding the AMEX charge)." [Written Order follows hearing on motions held on November 17, 2014. Minutes of hearing: doc. no. 84 ] (afc)CERTI FICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

NORMAN KATZ AND ROSEANN )
MANNING (FORMERLY KATZ), )
)
Plaintiffs,
)
)
vs.
)
)
AMERICAN EXPRESS COMPANY, )
EXPERIAN CORP., EQUIFAX,
)
INC., and TRANS UNION CORP. )
)
Defendants.
)
)
)
)
)
)
_____________________________ )

CIV. NO. 14-00084 JMS-RLP
ORDER (1) GRANTING DEFENDANT
EXPERIAN INFORMATION
SOLUTIONS, INC.’S MOTION TO
DISMISS “FINAL AMENDED
COMPLAINT,” DOC. NO. 70;
(2) GRANTING IN PART AND
DENYING IN PART DEFENDANT
EQUIFAX, INC.’S SUBSTANTIVE
JOINDER IN DEFENDANT
EXPERIAN INFORMATION
SOLUTIONS, INC.’S MOTION TO
DISMISS; DOC. NO. 81; AND (3)
GRANTING DEFENDANT
AMERICAN EXPRESS TRAVEL
RELATED SERVICE’S MOTION TO
DISMISS “FINAL AMENDED
COMPLAINT,” DOC. NO. 68

ORDER (1) GRANTING DEFENDANT EXPERIAN INFORMATION
SOLUTIONS, INC.’S MOTION TO DISMISS “FINAL AMENDED
COMPLAINT,” DOC. NO. 70; (2) GRANTING IN PART AND DENYING
IN PART DEFENDANT EQUIFAX, INC.’S SUBSTANTIVE JOINDER IN
DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S
MOTION TO DISMISS; DOC. NO. 81; AND (3) GRANTING DEFENDANT
AMERICAN EXPRESS TRAVEL RELATED SERVICE’S MOTION TO
DISMISS “FINAL AMENDED COMPLAINT,” DOC. NO. 68
I. INTRODUCTION
In this action, Plaintiffs Norman Katz and Roseann Manning (f/k/a
Roseann Katz) (collectively “Plaintiffs”), proceeding pro se, allege violations of

the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et. seq., and the Truth
in Lending Act (“TILA”), 15 U.S.C. § 1602, et seq., against American Express
Company (“AMEX”), Experian Corp. (“Experian”),1 Equifax, Inc. (“Equifax”),
and Trans Union Corp. (“Trans Union”) (collectively “Defendants”). Plaintiffs
contend that AMEX violated FCRA and/or TILA by (1) failing to report to the
credit reporting agency (“CRA”) Defendants Experian, Equifax, and Trans Union
(collectively, “CRA Defendants”) that Plaintiffs, in their individual capacities,
made payments on a corporate credit card; (2) failing to disclose that personal
payments on a corporate credit card are not reported on individual credit reports,
and (3) providing false and/or incomplete information to CRA Defendants
regarding a debt on their credit card. Plaintiffs also allege that all CRA
Defendants violated FCRA by failing to respond to Plaintiffs’ requests to correct
their credit reports and failed to perform a full investigation regarding Plaintiffs’
credit history.
On June 17, 2014, the court dismissed with leave to amend Plaintiffs’
claims against the CRA Defendants. Doc. No. 49 (“June 17, 2014 Order”). On
August 20, 2014, the court dismissed with leave to amend Plaintiffs’ claims

1

AMEX asserts that its name is “American Express Travel Related Services,” and
Experian asserts that its name is Experian Information Solutions, Inc. The court refers to these
companies as AMEX and Experian respectively.
2

against AMEX. Doc. No. 66 (“Aug. 20, 2014 Order”). As a result, Plaintiffs filed
an amended pleading entitled “Final Amended Complaint,” which the court
construes as the Second Amended Complaint (“SAC”).
Currently before the court are Motions to Dismiss brought by
Experian (substantively joined by Equifax, Doc. No. 81) and AMEX. Experian
and Equifax argue that the SAC should be dismissed for failure to comply with
Federal Rule of Civil Procedure 10(b), and Experian, Equifax, and AMEX all
argue that the SAC should be dismissed for failure to state a claim upon which
relief may be granted. Based on the following, the court (1) GRANTS Experian’s
Motion to Dismiss; (2) GRANTS in part and DENIES in part Equifax’s
substantive joinder; and (3) GRANTS AMEX’s Motion to Dismiss, all with leave
to amend. Plaintiffs may file a Third Amended Complaint by December 16, 2014.
II. BACKGROUND
A.

Factual Background
The SAC provides a winding narrative of allegations, provided in

sections entitled “Introduction,” “Facts” (with subsections for each Defendant),
“Law and Analysis,” and “Conclusion.” The SAC warns in its Introduction that
these allegations “should be understood to be just examples of possible other
violations and misdeeds that may be introduced in evidence or found out in the
3

discovery process.” Doc. No. 67, SAC at 1. The Introduction further outlines a
number of different concepts -- that (1) Defendants ignored Plaintiffs’ letters
disputing that Roseann Manning should be held personally liable for a debt on the
corporate credit card for Plaintiffs’ business Second Equity Concepts Limited
(“SECL”) id. at 2; (2) FCRA should not exempt CRAs from state libel laws, id. at
3; (3) the algorithm used by CRAs to measure individual credit is inadequate,
misleading, fraudulent, and a denial of due process, id. at 3-7; and (4) the CRAs
“are an oligopoly or ‘street corner’ business that by economic necessity mimic
each other reinforcing monopolistic practices prohibited under the Sherman and
Clayton antitrust acts.” Id. at 7. Despite this sweeping Introduction and reference
to a number of possible theories for Plaintiffs’ claims, the specific allegations of
the SAC as to each Defendant neither address all of these concepts, nor fully
explain the particular issues in dispute. The court first outlines the particular
allegations as to each Defendant, and then addresses the “Law and Analysis”
section of the SAC.
1.

Allegations as to Each Defendant
a.

Experian

The SAC alleges that Experian misled Plaintiffs as to Experian’s true
name by failing to file a “Form 15” with the SEC. Id. at 7. As a result, Plaintiffs
4

“corresponded with Experian at the P.O. Box address provided for this purpose
only to have [their] correspondence ignored[.]” Id. The SAC does not describe
when Plaintiffs communicated with Experian at this address, or the content of their
communications.
The SAC further asserts that Plaintiffs hired Lexington Law in
February 2014 to write Experian on Plaintiffs’ behalf “inquiring and complaining
about DSNB MACY’S and BBY/CBNA information shown on [Roseann
Manning’s] credit report.” Id. at 8. The SAC does not describe this “DSNB
MACY’S and BBY/CBNA information,” or explain the basis of Plaintiffs’
complaint with it. The SAC does allege, however, that Plaintiffs received no
response. Id.
According to the SAC, Experian also “made no due diligence effort to
ascertain that the [AMEX] claim of $6,441.25 did not just spring from thin air,”
especially where “[t]here was no credit history or relationship reported.” Id.
According to Plaintiffs, AMEX should have explained its relationship with
Roseann Manning and provided some of her credit history, and Experian should
not have limited itself to AMEX’s reported information. Id. at 9. Although later
allegations as to other Defendants suggest that Plaintiffs’ complaint regarding the
AMEX claim is that it was listed as a personal debt of Roseann Manning and not

5

SECL, see id. at 15, the SAC does not assert when Plaintiffs contacted Experian
and/or what they disputed with Experian as to this claim.
Finally, the SAC asserts that “much of the negative reporting about
the Plaintiffs deals with medical bills associated with their severely handicapped
daughter,” for which Plaintiffs are not responsible under California law. Id. at 10.
Medical providers billed Plaintiffs for this medical care and reported their claims
to the CRAs when they did not receive payment. Id. at 10-11. According to the
SAC, “Norman Katz complained to the defendant CRA[s] but received no relief.”
Id. at 11. These “unfair reporting practices” allegedly caused Norman Katz to
“suffer[] in his business because of a lack of financing.” Id. The SAC does not
explain whether these medical bills are part of any of the complaints above
regarding “DSNB MACY’S and BBY/CBNA information” through Lexington
Law and/or the AMEX claim, whether Plaintiffs made these complaints to
Experian in particular, and/or when such complaints were made.
b.

Equifax

As to Equifax, the SAC alleges that on or about March 22, 2014,
Lexington Law sent a challenge to Equifax regarding two items on Roseann
Manning’s credit report -- “American Express $6,441.25,” and “Pacific
Collections/D B.” Id. at 12-13. Equifax has not responded. Id. at 13.
6

The SAC further alleges that Equifax “participated in the false
disclosure about Norman Katz with respect to his liability to pay the patient’s
share of his daughter’s medical costs” as described above for Experian. Id.
c.

AMEX

As to AMEX, the SAC alleges that AMEX sent Roseann Manning
several mailings for her to apply for a Corporate Credit Card for Plaintiffs’
business SECL, and that she obtained a card in 1994. Id. at 13. Because SECL
did not have any revenues and no bank account, all payments on this credit card
were made through Plaintiffs’ personal joint checking account. Id.
In 2010, Plaintiffs applied for a mortgage loan and learned that none
of their payments was reported on their credit reports. Id. at 13-14. Plaintiffs had
purchased “almost everything” using this credit card and made timely payments of
$5,000 to $12,000 per month for the previous sixteen years, yet they had no
positive credit from these payments. Id. at 14. AMEX never told Plaintiffs that
their personal payments would not count as positive credit on their personal credit
reports, and never refused to accept these personal payments. Id. Further, at some
point between 1994 and 2010, AMEX issued new cards to replace the Corporate
Gold Card where the word “Corporate” was changed to “Business.” Id. Plaintiffs
assert that “they never signed a new contract that differentiated between the old
7

corporate credit card terms and conditions and the new business credit card terms
and conditions.” Id.
AMEX also “recently” reported to the CRAs that Roseann Manning
owed AMEX a debt of $6,441.25 as a personal liability. Id. at 15. This negative
reporting has prevented Roseann Manning from being able to purchase a new
automobile even though she would otherwise qualify with the Hawaii State Credit
Union. Id.
When Norman Katz spoke with AMEX collection personnel about
these issues in 2012, AMEX responded that it would not issue a personal card to
Plaintiffs and would not correct the credit bureau reports to reflect that Plaintiffs’
payments were personal and not corporate. Id. at 14. Norman Katz therefore told
AMEX that there was no personal liability for SECL’s debt unless AMEX “first
made a good faith attempt to collect the money from [SECL] and could
demonstrate that a separate personal written guarantee was signed by Plaintiffs as
required by state law.” Id. Norman Katz also offered to pay the debt if AMEX
“corrected its credit reporting to the credit bureaus.” Id. at 15. The SAC asserts
that “[b]ecause of [AMEX’s] fraud in the inducement, Plaintiffs’ credit scores
were much lower that they otherwise would have been had [AMEX] reported
personal payments on the SECL credit card properly.” Id.
8

2.

“Law and Analysis” Section of SAC
From the Introduction and factual allegations as to each individual

Defendant, it is difficult to discern precisely what claims Plaintiffs are alleging.
The SAC does, however, include a “Law and Analysis” section which attempts to
outline the legal basis of Plaintiffs’ claims.
In particular, the SAC reiterates the facts of CRA Defendants’ alleged
FCRA violations under 15 U.S.C. § 1681 for failing to timely respond to
Plaintiffs’ complaints of incorrect information on their credit reports. Id. at 15-19.
This section further reiterates the Introduction’s recitals that CRA Defendants
violated FCRA and state libel laws by the CRA Defendants’ failing to perform
their own due diligence when creditors report negative information. Id. at 19.
Plaintiffs also mention in passing that CRA Defendants are an oligopoly that
violates antitrust law. Id. at 20.
As to AMEX in particular, the SAC alleges that AMEX violated
FCRA’s 15 U.S.C. § 1681s-2 by reporting incorrect information to the CRA
Defendants, which it had reasonable cause to believe was incorrect in light of
Norman Katz’ phone calls to AMEX. Id. at 21. The SAC disclaims, however, that
it is asserting a claim based on the “chameleon credit card marketing scheme” -which presumably refers to when AMEX changed the name of the card from a
9

“corporate” to a “business” credit card. Id. at 24. Rather, the SAC explains that
these facts were included only to show “a pattern of willfulness and disregard for
the law.” Id. The SAC does assert, however, that AMEX violated TILA’s
Regulation Z when it failed “to make full disclosure to Roseann as to the negative
impact on their personal credit from using a Corporate Credit card to make their
personal purchases,” and failed to request any financial information regarding
SECL. Id. at 24-25.
Plaintiffs seek damages and restitution in the form of corrected credit
reports that reflect their timely credit card payments. Id. at 26. They also contend
that AMEX “should be ordered to accept the balance claimed of $6,441.25 as
being made on a timely basis when paid.” Id. Finally, they seek “statutory
damages, court costs, and attorney’s fees and expenses.” Id.
B.

Procedural Background
Plaintiffs filed this action against AMEX on February 19, 2014, Doc.

No. 1, and filed an Amended Complaint adding CRA Defendants on March 19,
2014. Doc. No. 7. On June 17, 2014, this court dismissed the Amended
Complaint with leave to amend as to the CRA Defendants. Doc. No. 49. On
August 20, 2014, the court dismissed the Amended Complaint with leave to
amend as to AMEX. Doc. No. 66.
10

On September 19, 2014, Plaintiffs filed their SAC.2 Doc. No. 67.
AMEX filed a Motion to Dismiss on October 2, 2014, Doc. No. 68, and Experian
filed a Motion to Dismiss on October 6, 2014, which Equifax substantively joined
with leave of court on November 3, 2014. Doc. No. 81. Plaintiffs filed an
Opposition to Experian’s Motion on October 20, 2014, Doc. No. 74, and an
Opposition to AMEX’s Motion on November 7, 2014.3 Doc. No. 82. Experian
filed a Reply on October 27, 2014, Doc. No. 77, and AMEX filed a Reply on
November 11, 2014. Doc. No. 83. A hearing was held on November 17, 2014.
III. STANDARDS OF REVIEW
A.

Pro Se Litigants
Plaintiffs are proceeding pro se; consequently, the court liberally

construes their pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987) (“The Supreme Court has instructed the federal courts to liberally construe
the ‘inartful pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam))). The court also recognizes that “[u]nless it is

2

Plaintiffs previously filed a second amended complaint on July 18, 2014, which the
court struck as premature given that AMEX’s Motion to Dismiss was pending at that time. See
Doc. Nos. 54, 55.
3

On October 14, 2014, Experian filed a “Position Statement” Regarding AMEX’s
Motion seeking to correct several of AMEX’s descriptions of the facts alleged in the SAC. See
Doc. No. 73.
11

absolutely clear that no amendment can cure the defect . . . a pro se litigant is
entitled to notice of the complaint’s deficiencies and an opportunity to amend
prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th
Cir. 1995); see also Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). The
court should not, however, advise a litigant how to cure defects. This type of
advice “would undermine district judges’ role as impartial decisionmakers.” Pliler
v. Ford, 542 U.S. 225, 231 (2004).
B.

Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss

a claim for “failure to state a claim upon which relief can be granted[.]”
“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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs,
521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as
true all of the allegations contained in the complaint -- “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d
12

1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.”).
Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). In other words, “the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and
continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only
permit the court to infer “the mere possibility of misconduct” do not show that the
pleader is entitled to relief as required by Rule 8. Iqbal, 556 U.S. at 679.
C.

Rule 12(e)
Federal Rule of Civil Procedure 12(e) provides that a party may move

for a more definite statement of a pleading where it “is so vague or ambiguous that
the party cannot reasonably prepare a response.” “Motions for a more definite
statement are viewed with disfavor, and are rarely granted.” Cellars v. Pac. Coast
Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999). The proper test for
13

evaluating a motion under Rule 12(e) is “whether the complaint provides the
defendant with a sufficient basis to frame his responsive pleadings.” Id. “A
motion for a more definite statement pursuant to Fed. R. Civ. P. 12(e) attacks the
unintelligibility of the complaint, not simply the mere lack of detail, and is only
proper when a party is unable to determine how to frame a response to the issues
raised by the complaint.” Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1169
(E.D. Cal. 2005). “Where the complaint is specific enough to [apprise] the
responding party of the substance of the claim being asserted or where the detail
sought is otherwise obtainable through discovery, a motion for a more definite
statement should be denied.” U.S. E.E.O.C. v. Alia Corp., 842 F. Supp. 2d 1243,
1250 (E.D. Cal. 2012).
IV. ANALYSIS
A.

Experian’s Motion to Dismiss
Experian, joined by Equifax, argues that (1) the SAC should be

dismissed for failure to comply with Rule 10(b) and/or Plaintiffs be required to file
a more definite statement pursuant to Rule 12(e); and (2) Plaintiffs have failed to
allege a plausible claim upon which relief can be granted. The court addresses
these arguments in turn.

14

1.

Rules 10(b) and 12(e)
Experian and Equifax argue that the SAC should be dismissed for

failure to comply with Rule 10(b) and/or that Plaintiffs should be required to file a
more definite statement pursuant to Rule 12(e).
The court agrees that the SAC fails to comply with Rule 10(b) and the
court’s previous instructions. Like the SAC, Plaintiffs’ Amended Complaint
provided a long narrative in paragraph form, and the August 20, 2014 Order
provided clear instructions for Plaintiffs to file a SAC. In particular, the August
20, 2014 Order explained that “Plaintiffs may include only one claim per count,
and must comply with Federal Rule of Civil Procedure 10(b),” which provides:
A party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances. . . . If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence -- and each defense other than a denial -must be stated in a separate count or defense.
Plaintiffs did not follow these instructions in filing their SAC -- the
SAC presents a long narrative divided by sections entitled “Introduction,” “Facts”
(with subsections for each Defendant), “Law and Analysis,” and “Conclusion.” In
other words, the SAC is more akin to a legal brief than a complaint which should
contain each allegation in a single numbered paragraph and with a clear statement

15

as to the factual basis of each claim against each Defendant. Following Rule 10(b)
and the court’s instructions may very well have prevented what happened with
Plaintiffs’ SAC -- in the “Introduction” and “Law and Analysis” sections Plaintiffs
introduce various legal concepts law without ever linking them to any particular
facts (e.g., the SAC asserts that Plaintiffs’ due process rights were violated, but
fails to explain how any Defendant could be subject to a due process claim or what
any particular Defendant did that is the basis of such claim). Further, as even
Plaintiffs recognize in their Opposition, the SAC includes a number of allegations
that are irrelevant to their claims. See, e.g., Doc. No. 74, Pls.’ Opp’n at 10 (“The
matters dealing with Plaintiffs’ daughter are irrelevant and only an expression of
Plaintiffs’ past exasperation with respect to communicating and complaining to
CRA’s. These old complaints are not claims in this action.”). Needless to say,
including superfluous allegations only makes discerning the true basis of
Plaintiffs’ claims that much more difficult.
Despite Plaintiffs’ failure to comply with this court’s previous
instructions and/or Rule 10(b), the court declines to dismiss it on this basis.
Plaintiffs are appearing pro se, and the court accepts their assertions of naivety
and/or lack of understanding of the proper form for pleadings. See, e.g., id. at 8
(“Any failure in form is due to the Plaintiffs’ lack of legal training and not
16

intention to ignore the Court’s instruction.”). Further, responding to the SAC in
its current form is not too onerous -- indeed, its format did not prevent Trans
Union from filing an Answer. See Doc. No. 71.
The court also rejects Experian’s and Equifax’s request for a more
definite statement pursuant to Rule 12(e). The SAC is specific enough to apprise
them of the substance of Plaintiffs’ claims to form a response.
The court therefore DENIES Experian’s Motion to Dismiss for failure
to comply with Rule 10(b) and/or for a more definite statement pursuant to Rule
10(e). As explained below, however, the court dismisses the SAC as to Experian
and in part as to Equifax, and provides further instructions for Plaintiffs to file a
Third Amended Complaint, if they so choose.
2.

Motion to Dismiss for Failure to State a Claim
The SAC refers generally to a number of possible federal claims as to

Experian and Equifax, including violations of FCRA, antitrust law, and due
process, and state law claims for libel and/or fraud. The SAC, however, does not
include any specific allegations as to Experian or Equifax that would form the
basis of a claim for violations of antitrust laws, due process, or for libel and/or
fraud. Rather, the specific facts alleged in the SAC as to these Defendants are
directed to violations of FCRA. As a result, to the extent the SAC attempts to
17

assert claims for violations of antitrust laws, due process, or for libel and/or fraud,
they are dismissed for failure to allege a plausible claim for relief. The court
therefore turns to Plaintiffs’ FCRA claims as to Experian and Equifax.
a.

FCRA Framework as to CRA Defendants

Like the FAC, the SAC appears to allege a violation of 15 U.S.C.
§ 1681i(a)(1)(A), which provides in relevant part:
[I]f the completeness or accuracy of any item of
information contained in a consumer’s file at a consumer
reporting agency is disputed by the consumer and the
consumer notifies the agency directly, or indirectly
through a reseller, of such dispute, the agency shall, free
of charge, conduct a reasonable reinvestigation to
determine whether the disputed information is inaccurate
and record the current status of the disputed information,
or delete the item from the file in accordance . . . before
the end of the 30-day period beginning on the date on
which the agency receives the notice of the dispute from
the consumer or reseller.
As outlined in the June 17, 2014 Order, a § 1681i(a)(1)(A) claim
includes the following elements:
(i) the plaintiff’s credit report contains inaccurate or
incomplete information; (ii) the plaintiff notified the
consumer reporting agency directly[4] of the inaccurate or
incomplete information; (iii) the plaintiff’s dispute is not

4

Because Plaintiffs do not allege that they notified any CRA Defendant of incorrect
credit information indirectly through a reseller, the court outlines the relevant FCRA elements
where a consumer notifies a CRA directly.
18

frivolous or irrelevant; (iv) the consumer reporting
agency failed to respond to the plaintiff’s dispute; (v) the
failure to reinvestigate caused the consumer to suffer
damages; and (vi) actual damages resulted to the
plaintiff. Actual damages may include damages for
humiliation, mental distress, and injury to reputation and
creditworthiness, even if the plaintiff has suffered no
out-of-pocket losses.
Katz, 2014 WL 2738528, at *3 (citing Thomas v. Trans Union, LLC, 197 F. Supp.
2d 1233, 1236 (D. Or. 2002)); see also Darrin v. Bank of Am., N.A., 2014 WL
1922819, at *7 (E.D. Cal. May 14, 2014); Baker v. Trans Union LLC, 2008 WL
4838714, at *6 (D. Ariz. Nov. 6, 2008); Saenz v. Trans Union, LLC, 621 F. Supp.
2d 1074, 1082 (D. Or. 2007); Acton v. Bank One Corp., 293 F. Supp. 2d 1092,
1098 (D. Ariz. 2003).
As the language of § 1681i(a)(1)(A) suggests, absent a complaint by
the consumer, FCRA does not impose on CRAs an affirmative duty to investigate
a consumer’s credit history. Rather, “[p]rior to being notified by a consumer, a
credit reporting agency generally has no duty to reinvestigate credit information.”
Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474 (2d Cir. 1995). See also
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) (“With
respect to the accuracy of disputed information, the CRA is a third party, lacking
any direct relationship with the consumer, and its responsibility is to ‘re

19

investigate’ a matter once already investigated in the first place.” (quoting Gorman
v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1156-57 (9th Cir. 2009))).
b.

Application -- Experian

The SAC includes a number of different allegations against Experian,
and Plaintiffs concede that some of these allegations are not the basis of any claim.
Specifically, the SAC alleges that (1) CRA Defendants have included on
Plaintiffs’ credit reports “negative reporting” concerning medical bills, and that
“Norman Katz complained to the defendant CRA’s but received no relief.” Doc.
No. 67, SAC at 11; and (2) Experien misled Plaintiffs as to Experian’s true name
by failing to file a “Form 15” with the SEC. Id. at 7. In their Opposition,
Plaintiffs disclaim that these allegations are a part of their claims. See Doc. No.
74, Pls.’ Opp’n at 9, 10-11. The court therefore focuses on the remaining
allegations of FCRA violations, which are too conclusory to allege a plausible
violation of FCRA.
In particular, nowhere in the SAC do Plaintiffs provide a complete
story of their interactions with Experian, which would include, for example, when
Plaintiffs learned that their credit report was incorrect; the particular information
in their credit report that was incorrect and why Plaintiffs assert such information
is incorrect; when Plaintiffs contacted Experian; and the content of their
20

correspondence with Experian and Experian’s response, if any. Instead, Plaintiffs
make a number of vague allegations that Experian did not respond to Plaintiffs,
and expect Defendants and the court to fill in the blanks.
For example, the SAC alleges that they hired Lexington Law in
February 2014 to write Experian on Plaintiffs’ behalf “inquiring and complaining
about DSNB MACY’S and BBY/CBNA information shown on [Roseann
Manning’s] credit report,” and that Plaintiffs received no response. Id. at 8.
Plaintiffs fail to allege, however, whether and/or how the “DSNB MACY’S and
BBY/CBNA information” shown on Roseann Manning’s credit report was
inaccurate and/or incomplete, and how the inclusion of this information on her
credit report caused her injury. The SAC also alleges that Experian “made no due
diligence effort to ascertain that the American Express claim of $6,441.25 did not
just spring from thin air,” especially where “[t]here was no credit history or
relationship reported.” Id. The SAC fails to explain whether, when, and how they
contacted Experian to dispute this information, and/or any response by Experian.
And although Plaintiffs assert that “[i]t is clearly implied here that Plaintiffs’
direct correspondence disputed the American Express claim,” Doc. No. 74, Pls.’
Opp’n at 6, Plaintiffs must still describe this correspondence and its content to
clarify the basis of this claim. Indeed, it is unclear whether Plaintiffs raised the
21

AMEX claim separately with Experian, or whether this was part of the dispute
Lexington Law raised on behalf of Plaintiffs.
Finally, to the extent the SAC attempts to allege a FCRA violation
based on Experian’s failure to independently investigate Plaintiffs’ credit history
when it received the negative information from creditors (as opposed to when
Plaintiffs notified Experian of the dispute), the court rejects such claim. Based on
the plain language of FCRA, Experian’s duty to perform any investigation was not
triggered until after Plaintiffs notified Experian of their dispute. See Carvalho,
629 F.3d at 892.
The court therefore GRANTS Experian’s Motion to Dismiss the SAC,
with leave for Plaintiffs to amend as to their FCRA claims against Experian based
on their complaints regarding (1) the “DSNB MACY’S” information; (2) the
“BBY/CBNA” information, and (3) the AMEX claim for $6,441.25.
c.

Application -- Equifax

As to Equifax, the SAC alleges that Equifax failed to respond to a
March 22, 2014 letter challenging two items on Roseann Manning’s credit report

22

-- “American Express $6,441.25,” and “Pacific Collections/D B.” Doc. No. 67,
SAC at 12-13.5 Equifax argues that these allegations fail to allege a plausible
claim for relief because they fail to “allege what was inaccurate about these
accounts or that they were inaccurate in any way.” Doc. No. 81, Equifax Joinder
at 3. The court agrees with Equifax only in part.
As an initial matter, to the extent Plaintiffs base their claim on the
assertion that Equifax should have performed some independent analysis of
Plaintiffs’ credit history before Plaintiffs notified it of any problems, the court
rejects such claim for the same reasons explained above for Experian -- FCRA
does not impose such duty on CRAs. Rather, a CRA’s duty is to respond to a
consumer complaint that information in the credit report is incorrect.
Further, as to Plaintiffs’ “challenge” to “Pacific Collections/D B,” the
only allegations describing this “challenge” are that Lexington Law sent a letter to
Equifax on March 22, 2014, and that Equifax did not respond. Doc. No. 67, SAC
at 12- 13. These allegations are insufficient to allege a plausible FCRA claim -the SAC fails to describe what “Pacific Collections/D B” refers to, the particular

5

The SAC also alleges that Equifax “participated in the false disclosure about Norman
Katz with respect to his liability to pay the patient’s share of his daughter’s medical costs” as
described above for Experian. Doc. No. 67, SAC at 13. In light of Plaintiffs’ concession that
they are not asserting a claim based on these facts, the court does not consider them as part of
Plaintiffs’ claims against Equifax.
23

information in Plaintiffs’ credit report regarding Pacific Collections/D B that was
incorrect, and why Plaintiffs assert such information is incorrect.
The court finds, however, that Plaintiffs have alleged sufficient facts
regarding their “challenge” regarding the “American Express $6,441.25” to allege
a plausible violation of FCRA. In particular, the SAC alleges that Plaintiffs
dispute this claim because the debt should not be attributed to Roseann Manning
in her individual capacity, but rather is a debt of Plaintiffs’ company SECL. See
Doc. No. 67, SAC at 15. The SAC further alleges the date when Lexington Law
raised this challenge with Equifax (March 22, 2014), and that Equifax failed to
provide any response. Id. at 13. Thus, contrary to Equifax’s protestations and
viewing these allegations liberally in favor of pro se Plaintiffs, the SAC alleges the
basis of their assertion that the AMEX charge is inaccurate, the date they notified
Equifax of their challenge, and that Equifax failed to respond. The SAC further
asserts that as a result of this “false report,” Roseann Manning was denied
financing on a new car, and Plaintiffs were given unfavorable mortgage terms. Id.
at 18-19.
The court therefore GRANTS in part and DENIES in part Equifax’s
substantive joinder. Plaintiffs’ FCRA claim against Equifax based on its alleged
failure to respond to Plaintiffs’ complaint regarding the AMEX charge for
24

$6,441.25 remains. Plaintiffs are granted leave to amend their FCRA claim
against Equifax as to the their complaint regarding “Pacific Collections/D B.”
B.

AMEX
As stated above as to Experian and Equifax, although the SAC refers

to violations of various laws, the only specific allegations as to AMEX appear
directed to claims for violations of FCRA and TILA. Thus, to the extent Plaintiffs
are attempting to assert any claims beyond those for violations of FCRA and
TILA, the court dismisses them. As to Plaintiffs’ FCRA and TILA claims, AMEX
argues that Plaintiffs have failed to allege a plausible claim upon which relief may
be granted. Based on the following, the court agrees.
1.

FCRA
AMEX argues, among other things, that Plaintiffs have failed to

allege the basic elements of a violation of 15 U.S.C. § 1681s-2(b).6 The court
agrees.
As the August 20, 2014 Order previously outlined, a plaintiff may
assert a claim for violation of § 1681s-2(b)(1)7 against a furnisher of credit
6

AMEX also argues that this claim is barred by the statute of limitations. Because the
court finds that Plaintiffs have failed to allege a plausible claim and that granting leave to amend
would be futile as to such FCRA claim, the court need not address this additional argument.
7

The court construes the SAC as asserting a violation of 15 U.S.C. § 1681s-2(b) only.
(continued...)
25

information for failure to investigate a credit dispute, but this duty to investigate is
triggered only after the furnisher receives notice of such a dispute from the CRA.
See Katz, 2014 WL 4180936, at *5; Gorman, 584 F.3d at 1154 (“These duties
arise only after the furnisher receives notice of dispute from a CRA.”). Thus, a
direct complaint from the consumer to the furnisher does not trigger any duty to
investigate under FCRA. See, e.g., Drew v. Equifax Info. Servs., 690 F.3d 1100,

7

(...continued)
Subsection 1681s-2(b)(1) provides “Duties of furnishers of information upon notice of dispute”
as follows:
After receiving notice pursuant to section 1681i(a)(2) of
this title of a dispute with regard to the completeness or accuracy
of any information provided by a person to a consumer reporting
agency, the person shall-(A) conduct an investigation with respect to the disputed
information;
(B) review all relevant information provided by the
consumer reporting agency pursuant to section 1681i(a)(2) of this
title;
(C) report the results of the investigation to the consumer
reporting agency;
(D) if the investigation finds that the information is
incomplete or inaccurate, report those results to all other consumer
reporting agencies to which the person furnished the information
and that compile and maintain files on consumers on a nationwide
basis; and
(E) if an item of information disputed by a consumer is
found to be inaccurate or incomplete or cannot be verified after any
reinvestigation under paragraph (1), for purposes of reporting to a
consumer reporting agency only, as appropriate, based on the
results of the reinvestigation promptly -(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of
information.
26

1106 (9th Cir. 2012) (“[Plaintiff’s] direct complaint to [the furnisher] . . . would
not have triggered any duty since it was unaccompanied by CRA notification.”).
Rather, “[i]t is only after (1) a consumer has notified a [CRA] of an inaccuracy,
(2) the [CRA] has notified the furnisher, and (3) the furnisher has failed to take
action, that a consumer may sue the furnisher.” Amina v. WMC Mortg. Corp.,
2011 WL 1869835, at *11 (D. Haw. May 16, 2011) (quoting Diana I Am v.. Nat’l
City Mortg. Co., 2010 WL 571936, at *10 (D. Haw. Feb. 17, 2010)).
The SAC alleges that Plaintiffs communicated directly with AMEX,
and includes no allegations that any of the CRA Defendants notified AMEX that
Plaintiffs had challenged the AMEX charge, which would trigger AMEX’s duty to
investigate under FCRA. And although Plaintiffs assert, both in their Opposition
and at the November 17, 2014 hearing, that discovery is needed “for Plaintiffs to
flesh out their impressions and beliefs,” Doc. No. 82, Pls.’ Opp’n at 5, the SAC
includes no allegations leading to a plausible conclusion that any CRA Defendant
contacted AMEX to report that Plaintiffs disputed the AMEX charge.8 Without

8

To the extent Plaintiffs argue that discovery is necessary for them to learn sufficient
facts to support their claims, such request is denied. “The Supreme Court has stated . . . that
plaintiffs must satisfy the pleading requirements of Rule 8 before the discovery stage, not after
it.” Mujica v. AirScan Inc., --- F.3d ----, 2014 WL 5839817, at *9 (9th Cir. Nov. 12, 2014)
(citing Iqbal, 556 U.S. at 678-79 (explaining that Rule 8 “does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions”) (emphasis omitted).
27

such allegations, Plaintiffs have failed to allege a plausible violation of § 1681s2(b).
At the November 17, 2014 hearing, Norman Katz conceded that
Plaintiffs were unaware whether any of the CRA Defendants notified AMEX that
Plaintiffs had challenged the AMEX charge. Instead, Norman Katz asserted that
their FCRA claim is based on the facts that (1) AMEX reported to CRA
Defendants the $6,441.25 charge as a personal debt of Roseann Manning even
though it was based on the SECL’s credit card debt, (2) Roseann Manning is not a
guarantor of SECL, and (3) AMEX refused to correct this information despite
numerous phone calls from Norman Katz. Norman Katz further asserted that these
facts state a claim for violation of 15 U.S.C. § 1681s-2(a) requiring “furnishers” of
information (such as AMEX) to provide accurate information to CRAs, and that
Plaintiffs may assert such claim for negligent violations of FCRA pursuant to 15
U.S.C. § 1681o, and willfully negligent violations pursuant to 15 U.S.C. § 1681n.
The court rejects this argument.
The August 20, 2014 Order already dismissed Plaintiffs’ claim
alleging a violation of 15 U.S.C. § 1681s-2(a) with prejudice because “FCRA
expressly precludes a private cause of action to enforce violations of § 1681s2(a).” See Katz, 2014 WL 4180936, at *4 (citing Gorman, 584 F.3d at 1154
28

(“Duties imposed on furnishers under subsection (a) are enforceable only by
federal or state agencies.”); Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d
1057, 1060 (9th Cir. 2002) (noting that “Congress limited the enforcement of the
duties imposed by § 1681s-2(a) to governmental bodies”)). The August 20, 2014
Order further explained that although FCRA expressly creates a private cause of
action for willful or negligence noncompliance through 15 U.S.C. § 1681o and 15
U.S.C. § 1681n, “§ 1681s-2 limits this private right of action to claims arising
under [§ 1681s-2(b)], the duties triggered upon notice of a dispute from a CRA.”
Id. (citing Gorman, 584 F.3d at 1154). Thus, Plaintiffs’ assertions that AMEX
willfully reported the debt as a personal liability of Roseann Manning, without any
allegations that AMEX received notice from a CRA, fail to allege a cognizable
violation of the FCRA. Simply put, Plaintiffs cannot assert a FCRA violation
where no CRA gave AMEX notice of a dispute as required by § 1681s-2(b)(1).
The court therefore GRANTS AMEX’s Motion to Dismiss Plaintiffs’
FCRA claim. Because amendment of a FCRA claim would be futile, the court
dismisses this claim without leave to amend as to the FCRA claim. The court
does, however, grant Plaintiffs one more opportunity to determine whether they
may assert another claim against AMEX -- whether based on a violation of another
federal law or state law -- based on these facts. And to the extent that Plaintiffs
29

base any such claim on allegations of fraud, a higher pleading standard applies -Plaintiffs must allege “particularized allegations of the circumstances constituting
fraud,” by alleging specific facts establishing the time, place, and nature of the
alleged fraud. See In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547-48 (9th Cir.
1994) (en banc) (emphasis in original), superseded on other grounds by 15 U.S.C.
§ 78u-4.
2.

TILA
AMEX argues that Plaintiffs’ TILA claim fails because they allege

that the AMEX credit card was issued to their business, SECL, and not to either
(or both) of the Plaintiffs as individuals. See Doc. No. 67, SAC at 13 (“The
American Express written inducement offered a means for creating credit for a
newly formed corporation, SECL.”). These same allegations were in the Amended
Complaint, and for the same reasons outlined in the August 20, 2014 Order, the
court finds that Plaintiffs have failed to allege a plausible TILA claim.
As the August 20, 2014 Order explains, see Katz, 2014 WL at
4180936, at *6, by its terms, TILA does not apply to “[c]redit transactions
involving extensions of credit primarily for business, commercial, or agricultural
purposes, or . . . to organizations.” 15 U.S.C. § 1603(1) (emphases added).
Corporations are included in the definition of “organization,” 15 U.S.C.
30

§ 1602(d), meaning that TILA does not apply to credit transactions involving
corporations. Rather, TILA was enacted “to assure a meaningful disclosure of
credit terms so that the consumer will be able to compare more readily the various
credit terms available to him and avoid the uninformed use of credit, and to protect
the consumer against inaccurate and unfair credit billing and credit card
practices.” 15 U.S.C. § 1601(a) (emphases added). Under TILA:
The adjective “consumer”, used with reference to a credit
transaction, characterizes the transaction as one in which
the party to whom credit is offered or extended is a
natural person, and the money . . . which [is] the subject
of the transaction [is] primarily for personal, family, or
household purposes.
15 U.S.C. § 1602(i).
Thus, two elements must be present for a credit transaction to qualify
for TILA protection -- (1) “the party to whom the credit is extended must be a
natural person,” and (2) “the money, property or services received by that person
must be ‘primarily for personal, family, [or] household . . . purposes.’” Am.
Express Co. v. Koerner, 452 U.S. 233, 241 (1981); see also Prifti v. PNC Bank,
N.A., 2001 WL 1198653, at *3 (E.D. Pa. Oct. 9, 2001) (outlining elements of
TILA claim); Samadi v. Bank of Am., N.A., 2010 WL 3894448, at *6 (S.D. Ga.
Sept. 30, 2010) (same). “[T]he first inquiry under the TILA focuses on to whom

31

the credit was extended,” while the second inquiry focuses on the purpose of the
transaction. Prifti, 2001 WL 1198653, at *3.
Plaintiffs fail to allege either of these necessary elements of their
TILA claim. As an initial matter, it appears that the purpose of the credit card was
for Plaintiffs’ business and not for personal expenses. The SAC alleges that the
credit card at issue was a “corporate” or “business” credit card issued to SECL,
Plaintiffs’ business, see Doc. No. 67, SAC at 2, 7, and that this corporate credit
card was “a means for creating credit for” this company. Id. at 13. The SAC
further alleges that “Norman Katz, Roseann’s husband, was the CEO of the
corporation and Roseann was the CFO.” Id. Thus, a fair reading of the SAC
indicates that the credit card was not “consumer credit” for purposes of TILA.
See, e.g., Koerner, 452 U.S. at 243-44 (holding that TILA does not apply where
“[t]he undisputed facts of this case reveal that the [cardholder] obtained the right
‘to incur debt and defer its payment’ from American Express primarily for
business, not consumer, purposes”); Prifti, 2001 WL 1198653, at *3 (dismissing
TILA claim where plaintiffs conceded that credit was extended to corporation and
not directly to plaintiffs, even though plaintiffs used unsecured credit line
primarily for personal purposes); Eze v. JP Morgan Chase Bank, NA, 2010 WL
3189813, at *6 (E.D.N.Y. Aug. 11, 2010) (“TILA pertains solely to the extension
32

of consumer credit. It is, however, undisputed that the credit card at issue here
was a business, and not a consumer, credit card, meaning that TILA is
inapplicable.”).
More glaring, however, is that the credit card at issue was not issued
to Plaintiffs as individuals (or, in the statutory term, “a natural person”), but to
their business SECL. Indeed, at the November 17, 2014 hearing, Norman Katz
conceded that the credit card issued to SECL as a business entity and not to either
Plaintiff individually. As a result, the SAC does not allege, and Plaintiffs cannot
amend to allege facts establishing, that AMEX extended credit to any “natural
person.” TILA does not apply.
The court therefore GRANTS AMEX’s Motion to Dismiss Plaintiffs’
TILA claim. Because Plaintiffs cannot allege facts that this credit card issued to a
natural person, this dismissal is without leave to amend this TILA claim.
C.

Leave to Amend
The court has already dismissed Plaintiffs’ Amended Complaint in

lengthy orders explaining its deficiencies, and in their SAC, Plaintiffs have failed
to allege sufficient facts to overcome many of the same deficiencies. Plaintiffs
are, however, appearing pro se and the Federal Rules of Civil Procedure
contemplate that leave to amend “shall be freely given when justice so requires,”
33

and that “[t]his policy is ‘to be applied with extreme liberality.’” Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations
omitted). Although the court has significant doubts that Plaintiffs will be able to
file a Third Amended Complaint addressing the problems above, the court will
nonetheless provide Plaintiffs one more opportunity to allege a plausible claim for
relief by filing a Third Amended Complaint as outlined above by December 16,
2014.
If Plaintiffs choose to file a Third Amended Complaint, Plaintiffs are
again instructed to clearly state how each named Defendant has injured them. In
other words, Plaintiffs should explain, in clear and concise allegations, what each
Defendant did and how those specific facts create a plausible claim for relief,
considering Federal Rule of Civil Procedure 8(a). In other words, to provide
proper notice, a Third Amended Complaint should allege necessary facts against
specific Defendants, i.e., tie each claim to a Defendant or specific Defendants and
explain how each Defendant is liable. A Third Amended Complaint must avoid
alleging a particular violation against all Defendants without specifying what acts
were committed by each Defendant. Plaintiffs should also include only those facts
relevant to their claims, i.e., they should not include facts which are not a basis of
their claims, such as Plaintiffs’ allegations regarding medical bills.
34

A Third Amended Complaint will supersede the prior pleadings and
must be complete in itself without reference to prior superseded pleadings. E.g.,
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled in part by Lacey v.
Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) (en banc). Plaintiffs may include
only one claim per count, and must comply with Federal Rule of Civil Procedure
10(b), requiring a party to state “its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.” Should
Plaintiffs choose to file a Third Amended Complaint, they must write short, plain
statements telling the court: (1) the statutory right they believe was violated;
(2) the specific basis of this court’s jurisdiction; (3) the name of the defendant who
violated that right; (4) exactly what that defendant did or failed to do; (5) how the
action or inaction of that defendant is connected to the violation of Plaintiffs’
rights; and (6) what specific injury Plaintiffs suffered because of that defendant’s
conduct. A Third Amended Complaint should be presented in paragraph form,
with each paragraph including a single fact and/or allegation to which a defendant
may respond.
Plaintiffs must clearly designate on the face of the document that it is
the “Third Amended Complaint.” Again, the Third Amended Complaint may not
incorporate any part of the original Complaint, Amended Complaint, or SAC by
35

reference, but rather, any specific allegations must be restated or rewritten in their
entirety. Any cause of action not already dismissed with prejudice that is not
raised in the Second Amended Complaint is waived.9 King, 814 F.2d at 567.
If Plaintiffs choose not to file a Third Amended Complaint by
December 16, 2014, this action will proceed on Plaintiffs’ FCRA claim against
Transunion and Equifax (to the extent based on Equifax’s failure to respond to
Plaintiffs’ complaint regarding the AMEX charge).
V. CONCLUSION
Based on the above, the court: (1) GRANTS Defendant Experian
Information Solutions, Inc.’s Motion to Dismiss “Final Amended Complaint,”
Doc. No. 70; (2) GRANTS in Part and DENIES in Part Defendant Equifax, Inc.’s
Substantive Joinder in Defendant Experian Information Solutions, Inc.’s Motion to
Dismiss; Doc. No. 81; and (3) GRANTS Defendant American Express Travel
Related Service’s Motion to Dismiss “Final Amended Complaint,” Doc. No. 68.
Plaintiffs are granted leave to file a Third Amended Complaint by December 16,
2014. If Plaintiffs choose not to file a Third Amended Complaint by December

9

Claims that were dismissed without leave to amend need not be pleaded again in an
amended complaint to preserve them for appeal. See Lacey, 693 F.3d at 928. However, “claims
that have been dismissed with leave to amend and are not repled in the amended complaint will
be considered waived.” Id.
36

16, 2014, this action will proceed on Plaintiffs’ FCRA claim against Transunion
and Equifax (to the extent based on Equifax’s failure to respond to Plaintiffs’
complaint regarding the AMEX charge).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 18, 2014.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Katz v. Am. Express Co., et al., Civ. No. 14-00084 JMS-RLP, Order (1) Granting Defendant
Experian Information Solutions, Inc.’s Motion to Dismiss “Final Amended Complaint,” Doc. No.
70; (2) Granting in Part and Denying in Part Defendant Equifax, Inc.’s Substantive Joinder in
Defendant Experian Information Solutions, Inc.’s Motion to Dismiss; Doc. No. 81; and
(3) Granting Defendant American Express Travel Related Service’s Motion to Dismiss “Final
Amended Complaint,” Doc. No. 68
37