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David Chavez v. Premier Bankcard

November 8, 2011

DAVID CHAVEZ,
PLAINTIFF,
v.
PREMIER BANKCARD, LLC,
DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONSTO DISMISS AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

INTRODUCTION

On July 5, 2011, David Chavez ("Plaintiff"), appearing pro se and in forma pauperis, filed a complaint alleging violations of 15 U.S.C. § 1691 et seq., ("the Fair Credit Reporting Act or "FCRA"). The Court screened the complaint and dismissed with leave to amend on October 6, 2011. (Doc. 9). Plaintiff filed an amended complaint on October 14, 2011.(Doc. 10). Upon a review of the pleading, the Court recommends that the amended complaint be dismissed without leave to amend.

DISCUSSION

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Plaintiff's Allegations

The Initial Complaint In the first complaint, Plaintiff alleged that on October 13, 2009, Defendant Premier Bankcard, L.L.C ("Defendant") "initiated a soft pull of [his] credit report from Experian without permissible purpose." Plaintiff alleged willful and negligent non-compliance with 15 U.S.C. § 1681b(f). Plaintiff was seeking two thousand dollars in monetary damages, attorney fees, and costs.

The Amended Complaint

In the amended complaint, Plaintiff essentially makes the same allegations as in the first complaint. Specifically, he contends that on April 21, 2011, he was reviewing his credit report online when he discovered that Defendant had initiated a "soft pull" of his credit report from Experian without permissible purpose and that he did not give written permission or instructions allowing Defendant to do so. (Doc. 10 at pg. 2). Moreover, Plaintiff asserts he did not receive any offers of credit, nor does he have an account with Defendant. Id. Plaintiff again alleges willful and negligent non-compliance with 15 U.S.C. § 1681b(f) pursuant to 15 U.S.C. §§ 1681(n) and (o). Plaintiff seeks two thousand dollars in actual, statutory and punitive damages, as well as attorney fees, and costs.(Doc. 10 at pgs. 3-4).

C. Analysis of Plaintiff's Claims

1. Rule 8(a)

Plaintiff was previously advised that Rule 8(a) states, a complaint must contain "a short and plain statement of the claim." The rule expresses the principle of notice-pleading, whereby the pleader need only give the opposing party fair notice of a claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 8(a) does not require an elaborate recitation of every fact a plaintiff may ultimately rely upon at trial, but only a statement sufficient to ...


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