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Kamlesh Banga v. Allstate Insurance Company and Does 1 Through 10 Inclusive

August 24, 2012

KAMLESH BANGA, PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY AND DOES 1 THROUGH 10 INCLUSIVE, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This case is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendant moves to dismiss plaintiff's sixth amended complaint. Dckt. No. 92. For the reasons stated herein, the motion must be granted without further leave to amend.

I. Background

This case has a long and muddled procedural history. In July 2008, plaintiff filed a complaint against defendant Allstate Insurance Company concerning plaintiff's homeowner's insurance policy. Dckt. No. 1. The complaint alleged that defendant violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681u ("FCRA"), by failing to provide notice of an adverse action against plaintiff; namely, underwriting plaintiff's homeowner's insurance policy based on information contained in a consumer report and increasing plaintiff's renewal policy premium from $1,477 to $2,124. Id. ¶¶ 4, 7. The complaint also alleged that defendant violated California Business and Professions Code section 17200 by "willfully/negligently collecting excessive premium[s] from plaintiff." Id. ¶ 4.

Defendant moved to dismiss plaintiff's claims pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Dckt. Nos. 9, 13. Before the motion was heard, plaintiff filed a first amended complaint. Dckt. No. 14. Plaintiff ultimately filed an opposition to the motion, as well as a motion for leave to file a second amended complaint, which defendant opposed. Dckt. Nos. 22, 23, 24. The proposed second amended complaint alleged that defendant violated the FCRA by making false reports to a credit reporting agency and by failing to notify plaintiff that defendant had reported negative information to a credit reporting agency. Dckt. No. 22.

On September 22, 2009, the undersigned issued an order and findings and recommendations ("F&Rs"). Dckt. No. 29. The order first noted that under Rule 15(a) the plaintiff had a right to file the first amended complaint without leave of court because defendant had not yet filed a responsive pleading at the time plaintiff's first amended complaint was filed.*fn1

The order and F&Rs then addressed the merits of defendant's motion to dismiss and plaintiff's motion for leave to file a second amended complaint. The F&Rs recommended that defendant's motion to dismiss plaintiff's first amended complaint be granted because (1) plaintiff failed to state a claim under FCRA § 1681m since that statute does not provide a private right of action; (2) plaintiff failed to state a claim under California Business and Professions Code section 17200 since that claim was predicated on a violation of FCRA § 1681m; and (3) plaintiff failed to adequately state a claim under the California Consumer Credit Reporting Agencies Act. Id. at 4-10.

The F&Rs also recommended that plaintiff's motion for leave to file a second amended complaint be granted in part and denied in part because (1) plaintiff could not state a claim under FCRA § 1681-2(a) since that statute did not provide a private right of action; (2) plaintiff's proposed second amended complaint set forth a prima facie claim pursuant to FCRA § 1681s-2(b); (3) plaintiff's proposed second amended complaint set forth a prima facie claim under California Civil Code section 1785.25(a), based on plaintiff's allegation that defendant furnished to a consumer reporting agency information concerning plaintiff that defendant knew or should have known was inaccurate; (4) plaintiff could not state either a federal or state claim based on defendant's alleged failure to notify plaintiff that it furnished negative information about plaintiff to a consumer reporting agency; (5) plaintiff's proposed second amended complaint set forth a prima facie claim under California Business and Professions Code section 17200 based on plaintiff's prima facie claims under FCRA § 1681s-2(b) and California Civil Code section 1785.25(a); (6) plaintiff failed to state a claim for "Tortious Interference with Credit Expectancy"; (7) plaintiff's proposed second amended complaint stated a prima facie claim for defamation; and (8) plaintiff failed to state a claim for intentional infliction of emotional distress. Id. at 12-25.

Accordingly, the F&Rs recommended that plaintiff be directed to file, within 30 days of the filing date of the district judge's order, a third amended complaint setting forth only those claims identified in the order and F&Rs (claims pursuant to 15 U.S.C. § 1681s-2(b), Cal. Civ. Code § 1785.25(a), Cal. Bus. & Prof. Code § 17200, and Cal. Civ. Code § 45 (defamation)), without the addition of any new claims. Id. at 25-26.

Defendant objected. They argued that plaintiff's proposed second amended complaint did not set forth any valid causes of action and that if plaintiff is permitted to file a second amended complaint, any order allowing such a complaint should expressly require that plaintiff attach a copy of the credit report at issue. Dckt. No. 30. While the F&Rs and the objections were pending, plaintiff prematurely filed a "Third Amended Complaint," which defendant moved to dismiss. Dckt. Nos. 32, 33. Plaintiff subsequently acknowledged that her third amended complaint was filed prematurely and moved to withdraw it. Dckt. No. 37.

The district judge then issued an order on March 31, 2010 adopting the September 22 F&Rs in full, except as they pertained to plaintiff's California Business and Professions Code section 17200 unfair competition law ("UCL") claim. Dckt. No. 39. The district judge held that "[u]nder California law, the mere presence or absence of a private right of action in a statute does not determine whether a violation of that statute may serve as the predicate of a UCL claim," and therefore declined to adopt the portion of the September 22 F&Rs addressing plaintiff's UCL claim. Id. at 2-3. The district judge concluded that, nonetheless, plaintiff's UCL claim fails in its entirety. Id. at 3-8. Accordingly, the March 31 order granted defendant's motion to dismiss, dismissed plaintiff's first amended complaint, and granted in part and denied in part plaintiff's motion for leave to file a second amended complaint.*fn2 Id. at 8. The March 31 order directed plaintiff to file a fourth amended complaint setting forth only those claims identified in the F&Rs, without the addition of any new claims, and directed plaintiff to attach to her fourth amended complaint "all reports or documents upon which she relies, including but not limited to all pertinent credit reports, notices of adverse action, insurance premium assessments, and correspondence with defendant Allstate." Id. at 9. The March 31 order also granted plaintiff's motion to withdraw the third amended complaint as premature and denied defendant's motion to dismiss that complaint as moot. Id. at 8-9.

Thereafter, plaintiff filed a fourth amended complaint, alleging that defendant furnished false and negative information about plaintiff to a consumer reporting agency; namely, that plaintiff had filed two loss claims in 2005, and that plaintiff was paid $40,938 to settle her fire claims as opposed to $36,584.97, and "failed to inform all the credit bureaus about the result of its investigation." Dckt. No. 40, ¶ 7. The fourth amended complaint also alleged that plaintiff's homeowner's insurance premium increased as a result. Id. ¶¶ 9-10. The fourth amended complaint alleged violations of (1) FCRA § 1681s-2(b); (2) the California Credit Reporting Agencies Act, California Civil Code section 1785.25(a); (3) defamation pursuant to California Civil Code section 45 and FCRA § 1681(e); (4) California Business and Professions Code section 17200; (5) negligence; and (6) FCRA § 1681n. Id.

On March 1, 2011, the undersigned issued F&Rs recommending dismissal of all of plaintiff's claims without leave to amend, except (1) plaintiff's FCRA § 1681s-2(b) claim that defendant furnished inaccurate information regarding the amount defendant paid to plaintiff as settlement of the 2005 claim; (2) plaintiff's claim that defendant provided false information to a consumer reporting agency regarding the amount plaintiff was paid on the 2005 fire claim, in violation of California Civil Code section 1785.25(a); and (3) plaintiff's defamation claim. See generally Dckt. No. 49. Those F&Rs were adopted on March 31, 2011 and plaintiff was directed to file a fifth amended complaint within fourteen days. Dckt. No. 58; see also Dckt. No. 49. After obtaining two extensions of time, Dckt. Nos. 61 and 63, plaintiff filed a fifth amended complaint on June 11, 2011. Dckt. No. 64. Defendant timely moved to dismiss that complaint. Dckt. No. 65. However, rather than opposing the motion to dismiss, plaintiff then sought leave to file a sixth amended complaint. Dckt. No. 82. On October 31, 2011, that motion to amend was reluctantly granted. Dckt. No. 90. Plaintiff was directed to file her proposed sixth amended complaint, which was attached to her motion to amend, as a separate docket entry within seven days. Id.

Plaintiff filed her sixth amended complaint as a separate docket entry on November 21, 2011. Dckt. No. 91. Defendant now moves to dismiss that complaint, arguing that the complaint should be dismissed for failure to comply with the March 31, 2010 and March 31, 2011 orders and for failure to state a claim upon which relief can be ...


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