United States District Court, Northern District of California, San Jose Division
November 26, 2002
HUA LIN, PLAINTIFF,
UNIVERSAL CARD SERVICES CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: James Ware, United States District Judge.
MOTION TO DISMISS
This is a consumer credit reporting case which presents the issue of
whether federal law preempts state law regarding the fights and
obligations of furnishers of consumer credit information. Defendant
Citibank*fn1("Citibank") filed a motion to dismiss Plaintiff Hua Lin's
("Lin") state law claims for violations of the California Consumer Credit
Reporting Agencies Act ("CCRAA")*fn2 §§ 1785.25(a)-(c)*fn3 on the
ground that the federal Fair Credit
Reporting Act ("FCRA")*fn4,
15 U.S.C. § 1681 et seq., preempts such claims and bars any private
right of action under the state statute.*fn5 The Court found it
appropriate to determine Citibank's motion based on the papers without
oral argument pursuant to Civil L.R. 7-1(b).
Lin concedes that his third and fourth claims for relief, filed
pursuant to CCRAA §§ 1785.25(b)-(c), are preempted by FCRA. Therefore,
the Court will only address Lin's second claim for relief, filed pursuant
to CCRAA § 1785.25(a). For the reasons discussed below, the Court
finds that Lin's second claim is not preempted by FCRA, but also finds
that CCRAA § 1785.25(a) does not permit a consumer to bring a private
right of action against a furnisher of consumer credit information.
Accordingly, the Court grants Citibank's motion to dismiss.
On July 19, 2002, Lin filed a lawsuit against Citibank in the Santa
Clara County Superior Court. Citibank properly removed the action to this
Court pursuant to 28 U.S.C. § 1441(b) and 1331. Lin's complaint
states that Citibank allegedly furnished adverse credit information about
him to a credit reporting agency regarding a credit card account which
Lin contends he never opened with Citibank.*fn6 Lin alleges that
Citibank inaccurately reported that he owned the account and that the
account was delinquent without first providing him with a notice of the
delinquent account. When Lin attempted to correct these errors with
Citibank, he alleges that Citibank failed to correct the inaccuracies.
Thereafter, Lin contacted the credit reporting agency directly and asked
it to investigate the dispute.
When the credit reporting agency called Citibank to verify the account
information, Lin alleges that Citibank did not convey the truth about his
credit information, but instead affirmed that the delinquent account
belonged to Lin. Based on the conduct of Citibank, Lin contends that
Citibank violated the following statutes: CCRAA §§ 1785.26,
FCRA 15 U.S.C. § 1681s-2(b)*fn8. Citibank
does not contend that Lin's claim filed pursuant to CCRAA § 1785.26,
nor his claim filed pursuant to FCRA 15 U.S.C. § 1681s-2(b), are
preempted by federal law. Rather, Citibank seeks to dismiss only Lin's
claims based upon CCRAA §§ 1785.25(a)-(c) on the ground that the FCRA
preempts these state law claims.
III. LEGAL STANDARDS
Motions to dismiss are viewed with disfavor and are rarely granted.
Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986);
United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.
1981). A claim may be dismissed as a matter of law for one of two
reasons: "(1) lack of a cognizable legal theory or (2) insufficient facts
under a cognizable legal theory." Robertson v. Dean Witter Reynolds.
Co., 749 F.2d 530, 534 (9th Cir. 1984).
"A complaint cannot be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Moore v. City of Costa Mesa,
886 F.2d 260, 262 (9th Cir. 1989). "[A] complaint should not be dismissed
if it states a claim under any legal theory, even if the plaintiff
erroneously relies on a different legal theory." Haddock v. Board of
Dental Examiners, 777 F.2d 462, 464 (9th Cir. 1985).
"All material allegations in the complaint are to be taken as true and
construed in the light most favorable to the non-moving party." Sanders
v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986); NL Indus., Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, the Court will not
accept wholly conclusory allegations. Western Mining Council v. Watt,
643 F.2d 618, 624 (9th Cir. 1981), cert. denied, 454 U.S. 1031 (1981);
Kennedy v. H & M Landing, Inc., 529 F.2d 987, 989 (9th Cir. 1976).
A determination of Citibank's motion depends on two issues: (1) whether
the FCRA completely preempts the CCRAA in matters relating to the
responsibilities of furnishers of consumer credit information; and, (2)
whether, absent complete preemption, the CCRAA § 1785.25(a)
specifically confers upon consumers a private right of action to file suit
against a furnisher of consumer credit information.
Exclusive federal preemption of state law in the area of consumer
credit reporting would resolve any doubt as to whether a consumer can
invoke the protections of the state.*fn9 If Congress decides to exert
exclusive authority over a particular area of interstate commerce, it
might choose to invalidate all state laws on the subject matter,
regardless of whether the state law is inconsistent or identical to
federal law.*fn10 Where federal preemption
is not absolutely reserved
for the regulation or prohibition of Congress, federal and state law may
coexist simultaneously to the extent state law does not stand in conflict
with federal law.*fn11
On September 30, 1996, Congress enacted the provision in the FCRA
concerning the furnishers of consumer credit information. See Public L.
90-321, Title VI, § 623, as added Public L. 104-208, Div. A., Title
II, § 2413(a)(2), 110 Stat. 2009-447. Title 15 U.S.C. § 1681t
makes clear that Congress did not enact a blanket preemption of state law
in the area of consumer credit reporting. Section 1681 t(a), in its
entirety, provides the following preemption language relating to state
Except as otherwise provided in subsection (b) and (c)
of this section, this subchapter does not annul,
alter, affect, or exempt any person subject to the
provisions of this title from complying with the laws
of any States with respect to the collection,
distribution, or use of any information on consumers,
except to the extent that those laws are inconsistent
with any provisions of this title, and then only to
the extent of the inconsistency. (emphasis added).
Based on the above statutory provision, Congress did not enact the FCRA
with the goal of vitiating all state laws, but only those that are
inconsistent with the federal law. See generally Dornhecker v. Ameritech
Corp., 99 F. Supp.2d 918 (N.D. Ill. 2000, Campbell v. Baldwin,
90 F. Supp.2d 754 (E.D. Tex. 2000). Congress' desire to retain consistent
state laws is also evident in Title 15 U.S.C. § 1681t(b)(1)(F)(ii),
which provides "no requirement or prohibition may be imposed under the
laws of any state with respect to any subject matter regulated under
section 1681 s-2 of this title, relating to the responsibilities of
persons who furnish information to consumer reporting agencies, except
that this paragraph shall not apply with respect to section 1785.25(a) of
the California Civil Code (as in effect on September 30, 1996)."
Based on the statutory language, § 1785.25(a) of the California
Civil Code is expressly excepted from preemption. Retaining section
1785.25(a) is consistent with Congress' stated intention in section
1681t(a) since § 1785.25(a) of the California Civil Code is similar
to the language set forth in § 1681s-2(a)(1) of the FCRA. CCRAA
1785.25(a) states that "[a] person shall not furnish information on a
specific transaction or experience to any consumer credit reporting agency
if the person knows or should know the information is incomplete or
inaccurate." Title 15 U.S.C. § 1681 s-2(a)(1) similarly provides that
"[a] person shall not furnish any information relating to a consumer to
any reporting agency if the person knows or consciously avoids knowing
that the information is inaccurate." Since both CCRAA § 1785.25(a)
and FCRA § 1681s-2(a)(1) are consistent with each other, Congress did
not find that § 1785.25(a) of the CCRAA was preempted.
Having determined that CCRAA § 1785.25(a) is "expressly excluded
from the FCRA preemption . . . ." Quigley v. Pennsylvania Higher
Education Assistance Agency, 2000 U.S. Dist. LEXIS 19847, *7-8 (N.D.
Cal. 2000) (unpublished opinion), the next inquiry is
to determine whether § 1785.25(a) affords consumers the right to sue
furnishers of consumer credit information.
B. Private Right of Action
The language of CCRAA § 1785.25(a) provides that a "person shall
not furnish information on a specific transaction or experience to any
consumer credit reporting agency if the person knows or should know the
information is incomplete or inaccurate." On its face, subsection (a)
does not provide for a private right of action. Rather, the language
which affords consumers a private right of action is found in CCRAA
§§ 1785.25(g) and 1785.31.
Subsection (g) states that a "person who furnishes information to a
consumer credit reporting agency is liable for failure to comply with the
section, unless the furnisher establishes by a preponderance of the
evidence that, at the time of the failure to comply with this section,
the furnisher maintained reasonable procedures to comply with those
provisions." Similarly, § 1785.31 provides to "any consumer who
suffers damages as a result of a violation of this title" the ability to
"bring an action in a court of appropriate jurisdiction against that
person" These California provisions regarding private right of actions are
not excepted from preemption in the FCRA. Only § 1785.25(a) of the
CCRAA, which does not provide for a private right of action, is excluded
from preemption. Based on the plain language of the statute, Congress did
not exclude from preemption CCRAA §§ 1785.25(g) and 1785.31. See
Quigley, 2000 U.S. Dist. LEXIS at *8, supra.
Nevertheless, Lin argues that Congress would not have excluded from
preemption CCRAA § 1785.25(a) if it did not want consumers to be able
to sue furnishers of consumer credit information. The Court disagrees.
While at first blush it may appear unclear as to why Congress excepted
CCRAA § 1785.25(a) from preemption but did not except the additional
provisions which provide consumers with a private right of action, the
history and chronology of both Acts resolves any confusion.
The state of California was first to impose duties and obligations on a
person who furnishes consumer credit information. California enacted CCRAA
§§ 1785.25(a)-(g) on August 2, 1993. See Stats. 1992, c. 1194 (A.B.
1629), § 11, operative July 1, 1993; amended by Stats. 1993, c. 285
(A.B. 1340), § 8, effective August 2, 1993. Three years later, in
1996, Congress enacted a similar provision in FCRA § 1681 s-2(a). In
enacting the provision regarding furnishers of consumer credit
information, Congress found that the specific language contained in CCRAA
§ 1785.25(a) is not inconsistent with its FCRA counterpart, §
1681 s-2(a), and thus did not preempt the California provision. See
15 U.S.C. § 1681t(b)(1)(F)(ii).
Provisions contained in the CCRAA that stand in conflict with the FCRA
were, however, preempted. Lin is correct that CCRAA §§ 1785.25(g) and
1785.31 provide consumers with a private right of action under California
law. These provisions were not excepted from preemption, however, because
they are inconsistent with the enforcement scheme of Congress under FCRA
§ 1681 s-2(d), in matters relating to furnishers of consumer credit
information. Congress intended to have exclusive authority to enforce
such claims through "the Federal agencies and officials and the State
officials identified in that section." Therefore, although CCRAA §
1785.25(a) is excepted from preemption, CCRAA §§ 1785.25(g) and
1785.31, which provide Lin with a private right of action to sue
of consumer credit information, are not excepted from preemption.
Federal law preempts the area of private consumer actions against
furnishers of credit information. The California Consumer Credit
Reporting Agencies Act, §§ 1785.25(g) and 1785.31 which allow a
private right of action in state court, are preempted. Therefore, the
Court grants Citibank's motion to dismiss Lin's second, third, and fourth