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Brian M. and Janelle R. Pavey v. Recontrust Company

February 10, 2012



This matter came before the court on August 26, 2011, for hearing of a motion to strike and a motion to dismiss plaintiffs' complaint filed on behalf of defendant Reconstruct Company, N.A. Plaintiffs, who are proceeding pro se, did not appear at the hearing.*fn1 Attorney Michael Peng appeared telephonically for defendant Reconstruct Company, N.A. Oral argument was heard, and defendant's motions were taken under submission.

Upon consideration of the briefing on file, defendant's arguments at the hearing, and the entire file, the undersigned will recommend that defendant's motion to dismiss be granted in part.


Plaintiffs commenced this action by filing a complaint on June 1, 2011, (Doc. No. 1), and paying the required filing fee. In their complaint, plaintiffs allege that defendant violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq, in connection with plaintiffs' home loan which was taken out in 2005. Specifically, plaintiffs allege that the defendant failed to provided them with credit scores, failed to provide "Notice to Home Loan Applicant," failed to provide "Notices of Adverse Action," failed to provide "Risk-Based Pricing Notice," and failed to make an "Investigative Consumer Report Disclosure."*fn2 (Id. at 35.*fn3

On July 18, 2011, counsel for defendant filed a motion to strike portions of plaintiffs' complaint pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, (Doc. No. 16), and also filed a motion to dismiss pursuant to Rule 12(b)(6). (Def.'s MTD (Doc. No. 17.)) Plaintiffs filed an opposition to defendant's motion on July 29, 2011, (Pl.'s Opp.'n (Doc. No. 18)), and defendant filed a reply on August 19, 2011. (Def.'s Reply (Doc. No. 19.))


The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).


I. Rule 8

Counsel for defendant argues that plaintiffs' complaint should be dismissed due to its failure to comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure. In this regard, defense counsel argues that plaintiffs' complaint fails to set forth a short and plain statement of any claim showing that plaintiffs are entitled to relief. (Def.'s MTD (Doc. No. 17) at 13-14.)

The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.

Fed. R. Civ. P. 8(a).

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's ...

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