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Tiffany Sodano v. Discover Financial Services

April 19, 2012

TIFFANY SODANO, PLAINTIFF,
v.
DISCOVER FINANCIAL SERVICES, INC.;
DISCOVER BANK;
DISCOVERCARD SERVICES, INC., DEFENDANTS.



ORDER

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants DFS Services LLC (erroneously sued as Discover Financial Services, Inc. and DiscoverCard Services, Inc.) and Discover Bank ("Discover") removed this action from Yolo County Superior Court, based on federal question jurisdiction. They now move to dismiss plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Mot. to Dism., Dckt. No. 6. Plaintiff opposes the motion and also moves to remand the action to state court. Opp'n to Mot. to Dism., Dckt. No. 15; Mot. to Remand, Dckt. No. 16. For the reasons stated herein, plaintiff's motion to remand will be denied and Discover's motion to dismiss will be granted with leave to amend.

I. BACKGROUND

Plaintiff sued Discover in small claims court in Yolo County, alleging that Discover violated the Federal Credit Reporting Act ("FCRA"), Federal Debt Collection Practices Act ("FDCPA"), and Office of the Comptroller of the Currency ("OCC"), by failing "to remove charges [plaintiff] reported as fraudulent" in connection with her credit card account and failing "to handle the claim properly and in a timely manner." Compl., Dckt. No. 2, Ex. A at 6.

II. MOTION TO REMAND

Plaintiff argues that this action should be remanded to state court because plaintiff's FCRA and FDCPA claims can be brought in state court. Mot. to Remand; see also Dckt. No. 17 (plaintiff's motion to set aside the hearing on defendants' motion to dismiss due to a lack of jurisdiction). Plaintiff misunderstands the requirements for removal jurisdiction. That the state court might have concurrent jurisdiction over a federal statutory claim does not preclude removal.

A defendant may remove to federal court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 163 (1997) (quoting 28 U.S.C. § 1441(a)). Pursuant to 28 U.S.C. § 1331, the district courts are vested with original jurisdiction over cases "arising under the constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Regardless of whether plaintiff's claims could also have been brought in state court, because plaintiff's complaint alleges that Discover violated federal laws (the FCRA, FDCPA, and OCC), this action was properly removed pursuant to 28 U.S.C. §§ 1331 and 1441. See Compl. at 6. Therefore, plaintiff's motion to remand and motion to set aside the hearing on Discover's motion to dismiss must be denied.

III. MOTION TO DISMISS

Discover moves to dismiss all three of plaintiff's claims, arguing that the complaint fails to state facts sufficient to constitute a cause of action against Discover under the FDCPA, the FCRA, or any regulations promulgated by the OCC. See generally Mot. to Dismiss.

A. Standards

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969).

B. Plaintiff's Claims

1. FCRA

Discover moves to dismiss plaintiff's FCRA claim, arguing that plaintiff has not alleged that Discover's obligations under the FCRA "were ever triggered or breached." Mot. to Dism. at 2. Discover argues that although plaintiff alleges that Discover failed to investigate and remove fraudulent charges that were included in the balance that appears on her credit report, and although Discover, as a furnisher of credit information, is obligated to ensure that the information provided to a consumer reporting agency is complete and accurate and to investigate disputes made by a consumer, there is no private right of action to enforce those duties. Id. at 2-3 (citing 15 U.S.C. § 1681s-2(a) and Nelson v. Chase Manhattan Mortgage Co., 282 F.3d 1057, 1059 (9th Cir. 2002)). Therefore, Discover argues that ...


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