Rosco et al v. Trans Union LLC et al

Filing 12

ORDER DENYING 6 Plaintiffs' MOTION to Remand to state court filed by Russell D Rosco, Bonnie R Rosco; and granting 7 Defendants' Joint MOTION to Dismiss Plaintiffs' Complaint filed by Shuckit & Associates PC, Montgomery Purdue Blankinship & Austin PLLC, Trans Union LLC. Plaintiffs' Complaint is DISMISSED WITH PREJUDICE. Case Closed. Signed by Judge Rosanna Malouf Peterson. (SK, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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RUSSELL D. ROSCO and BONNIE
R. ROSCO,

NO: 2:17-CV-086-RMP

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Plaintiffs,
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v.

ORDER DENYING MOTION TO
REMAND AND GRANTING
MOTION TO DISMISS

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TRANSUNION, LLC;
MONTGOMERY PURDUE
BLANKINSHIP & AUSTIN, PLLC;
and SHUCKIT & ASSOCIATES, PC,

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Defendants.

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BEFORE THE COURT are Plaintiffs’ Motion to Remand, ECF No. 6, and

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Defendants’ Joint Motion to Dismiss Plaintiffs’ Complaint, ECF No. 7. The Court

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has reviewed the motions, the record, and is fully informed.

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BACKGROUND
Plaintiffs have established a pattern of filing frivolous claims and arguments

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that are unsupported by any legal or factual bases. In Case No. 2:15-cv-00325-

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RMP, Plaintiffs filed claims against seventeen defendants, thirteen of which have
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been dismissed as Defendants. One of those Defendants, TransUnion, LLC, made

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a settlement offer to Plaintiffs, which was unequivocally accepted. Both before

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and after accepting the settlement terms, Plaintiffs demanded usurious amounts and

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additional concessions, and repeatedly threatened to file lawsuits against opposing

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counsel and their respective law firms. See generally ECF No. 154. When this

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Court upheld the valid settlement agreement, Plaintiffs filed the present suit, in

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accordance with their threats.

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This current matter arises out of Plaintiffs’ four-page Complaint that was
filed in state court and was properly removed to federal court due to Plaintiffs’

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assertions of violations of a federal statute, the Gramm-Leach-Bliley Act (15

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U.S.C. §§ 6801-6809). See ECF No. 1. Plaintiffs’ Complaint argues that

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Defendants are liable to the Roscos for violating the Gramm-Leach-Bliley Act,

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which they argue serves as the basis for claims under the Washington Consumer

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Protection Act (“WCPA”). See id. The Complaint lists four “counts” that all

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allege the same conduct: “publication” of what Plaintiffs assert was “personally

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identifiable financial information” or “PIFI.” Id. These alleged “publication[s]”

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consisted of Defendants having filed documents in this Court in Case No. 2:15-cv-

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00325-RMP. Although the Court does not resolve disputed issues of fact at this

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stage of litigation, this Court has reviewed each of the relevant documents, which

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are heavily redacted, and notes that this present case only arose when the Court

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ruled against Plaintiffs in that prior matter. 1

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Plaintiffs filed a motion to remand this suit back to state court, as they urge

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this Court to read their Complaint as only alleging claims pursuant to the

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Washington Consumer Protection Act. See ECF No. 6. However, Plaintiffs

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brought four counts that only allege violations of the same federal statute. ECF

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No. 1. The Court is unconvinced by their attempt to avoid federal jurisdiction

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(which also would avoid this Court’s familiarity with their vexatious history) by

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arguing that they are only seeking liability through the Washington Consumer

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Protection Act. The only Complaint before the Court states violations of a federal

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statute; therefore, the Court has jurisdiction pursuant to 28 U.S.C. § 1331.

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The Court liberally construes pro se pleadings, but it bears noting that

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Plaintiffs’ pleadings are rambling, difficult to understand, focus on irrelevant

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arguments, and Plaintiffs continue to misrepresent the record to fit their present

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interests. As one example, Plaintiffs stated that they did not “ask for any monetary

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damages at the beginning of the prior lawsuit.” ECF No. 11 at 2. Contrary to this

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statement, their Complaint in Case No. 2:15-cv-00325-RMP shows that Plaintiffs

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initially sought “$1,000 per violation of 15 U.S.C. 1681etseq. [sic].” From the

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documents sealed, as they do now in this separately filed matter.

In Case No. 2:15-cv-00325-RMP, Plaintiffs never sought to have the relevant

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start of that lawsuit, Plaintiffs sought large amounts of monetary damages, based in

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large part on baseless claims.

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ANALYSIS

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The Federal Rules of Civil Procedure allow for the dismissal of a complaint

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where the plaintiff fails to state a claim upon which relief can be granted. FED. R.

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CIV. P. 12(b)(6). A motion to dismiss brought pursuant to this rule “tests the legal

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sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In

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reviewing the sufficiency of a complaint, a court accepts all well-pleaded

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allegations as true and construes those allegations in the light most favorable to the

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non-moving party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.

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2010) (citing Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031-

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32 (9th Cir. 2008)).

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To withstand dismissal, a complaint must contain “enough facts to state a

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claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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While specific legal theories need not be pleaded, the pleadings must put the

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opposing party on notice of the claim. Fontana v. Haskin, 262 F.3d 871, 877 (9th

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Cir. 2001) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). A plaintiff is not

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required to establish a probability of success on the merits; however, he or she
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must demonstrate “more than a sheer possibility that a defendant has acted

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unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[A]

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[p]laintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

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requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

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“The Gramm–Leach–Bliley Act prohibits financial institutions’ disclosure of

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non-public personal information. There is no private right of action under 15

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U.S.C. § 6801.” Gehron v. Best Reward Credit Union, No. 10CV2051-IEG BLM,

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2011 WL 976624, at *2 (S.D. Cal. Mar. 15, 2011). In Plaintiffs’ Motion to

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Remand, ECF No. 6, they recognize this fact, stating, “[a]s the court and

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Defendants are most likely aware, there is no private right to sue under the Federal

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statute of GLBA.” The four “counts” in Plaintiffs’ Complaint all allege violations

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of the Gramm–Leach–Bliley Act, and accordingly, are dismissed with prejudice.

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To the extent Plaintiffs’ four counts are intended to support state claims for

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violations of the Washington Consumer Protection Act, Plaintiffs fail to allege

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facts that would support such a claim. “[T]he Washington State Supreme Court

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held a private plaintiff’s CPA claim ‘must establish five distinct elements: (1)

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unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public

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interest impact; (4) injury to plaintiff in his or her business or property; [and] (5)

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causation.’” Gragg v. Orange Cab Co., 942 F.Supp.2d 1111, 1116 (W.D. Wash.

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2013) (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title Insur. Co.,
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105 Wash.2d 778, 780 (1986)). Plaintiffs’ entire case is premised on their

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argument that their “PIFI” was “published” when Defendants filed documents with

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this Court in Case No. 2:15-cv-00325-RMP. They fail to allege how this was an

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“unfair or deceptive act or practice.” The Court need not proceed further to state

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how Plaintiffs’ factual allegations fail to meet the other elements of a WCPA

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claim, as the Court finds that this case is simply a vexatious attempt to harass

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Defendants as a result of this Court’s rulings in Defendants’ favor in Case No.

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2:15-cv-00325-RMP.

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Plaintiffs recognize that they do not have a private cause of action under the

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federal statute that they invoke. Based on the foregoing discussion, there is

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nothing remaining for this Court to remand to state court, as the Court declines to

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allow Plaintiffs to further litigate a baseless WCPA claim that is premised on

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Defendants’ filing of documents before this Court.

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The Court recognizes that “leave to amend need not be granted if

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amendment would be futile.” Westcott v. Wells Fargo Bank, N.A, 862 F.Supp.2d

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1111, 1115 (W.D. Wash. 2012) (citing Gompper v. VISX, Inc., 298 F.3d 893, 898

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(9th Cir. 2002)). However, “[d]ismissal with prejudice and without leave to amend

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is not appropriate unless it is clear on de novo review that the complaint could not

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be saved by amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

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1052 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)).

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The Court finds that granting Plaintiffs leave to amend their deficient Complaint

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would be futile.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Plaintiffs’ Motion to Remand to State Court, ECF No. 6, is DENIED AS

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MOOT.
2. Defendants’ Joint Motion to Dismiss Plaintiffs’ Complaint, ECF No. 7,
is GRANTED.

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3. Plaintiffs’ Complaint is DISMISSED WITH PREJUDICE.

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4. All other pending motions, if any, ARE DENIED AS MOOT.

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The District Court Clerk is directed to enter this Order, provide copies to
counsel and pro se Plaintiffs, and close this case.
DATED July 10, 2017.

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s/Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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