Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Derderian v. Southwestern & Pacific Specialty Finance, Inc.

United States District Court, S.D. California

December 8, 2014

JAMIE LEA DERDERIAN, on behalf of herself and all persons similarly situated, Plaintiff,


M. JAMES LORENZ, District Judge.

On January 23, 2014, Plaintiff Jamie Lea Derderian commenced this action against Defendant Southwestern & Pacific Specialty Finance, Inc. dba Check n' Go. Plaintiff alleges violations of the Fair Credit Reporting Act based on Defendant's alleged failure to extend Plaintiff firm offers of credit after Defendant allegedly obtained Plaintiff's consumer report. Plaintiff also seeks to represent a class of similarly situated plaintiffs.

On June 20, 2014, Defendant moved for summary judgment. On July 26, 2014, Plaintiff moved for leave to file a First Amended Complaint. Both motions have been fully briefed and are considered on the papers submitted without oral arguments in accordance with Civil Local Rule 7.1(d.1). For the following reasons, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's motion for leave to file a First Amended Complaint.


Plaintiff Jamie Lea Derderian ("Derderian") is a resident of the State of California. (Compl. ¶ 1.) Defendant Southwestern & Pacific Specialty Finance, Inc. dba Check n' Go ("Southwestern") is an Ohio corporation that does business in California, but has not designated a principal place of business in California. (Answer ¶ 2.)

On September 15, 2012 and March 15, 2013, Southwestern obtained Derderian's consumer report.[1] (Plf.'s Opp'n. Exhs. 1, 2.; Def.'s MSJ Ps&As at 4.) Derderian claims Southwestern never made her a firm offer of credit after receiving either of the above consumer reports. (Compl. ¶¶ 21, 22; Plf.'s Opp'n at 1.) Southwestern asserts it extended firm offers of credit to Derderian after obtaining her consumer report in both instances in the form of mailers sent in December 2012 and May 2013, respectively. (Def.'s MSJ Ps&As at 4.)

On January 23, 2014, Derderian filed a complaint in the Superior Court of the State of California, in and for the County of San Diego alleging a single cause of action: violation of the Fair Credit and Reporting Act ("FCRA") on the grounds that: 1) Southwestern failed to extend her firm offers of credit after obtaining her credit at the above dates, and 2) Southwestern failed to extend firm offers of credit to members of the proposed class within thirty days of obtaining their consumer reports.[2] (Compl. ¶¶ 20-22.) Derderian asserts Southwestern owes her and the proposed class members $1, 000 for each violation of the FCRA as well as punitive damages under 15 USC Section 1681n. (Compl. ¶¶ 23, 26.) On February 24, 2014, Southwestern removed the case to this Court. (Def.'s Notice of Removal.)

Currently pending are Southwestern's motion for summary judgment and Derderian's motion for leave to file a First Amended Complaint.



Summary adjudication is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). When "the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." See T.W. Elec. Service, Inc., v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). The nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient.") (citing Anderson, 477 U.S. at 242, 252). Rather, the nonmoving party must "go beyond the pleadings" and by "the depositions, answers to interrogatories, and admissions on file, " designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting FED. R. CIV. P. 56(e)).

It is well settled that, "[w]hen the non-moving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact." Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993)(per curiam); see also United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011); Head v. Glacier Nw. Inc., 413 F.3d 1053, 1059 (9th Cir. 2005) (discussing the "longstanding precedent that conclusory declarations are insufficient to raise a question of material fact"). "Summary judgment requires facts, not simply unsupported denials or rank speculation." McSherry v. City of Long Beach, 584 F.3d 1129, 1138 (9th Cir. 2009); see also Fed. Trade Comm'n v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010); Batz v. Am. Commercial Sec. Servs., 776 F.Supp.2d 1087, 1097-98 (C.D. Cal. 2011). Moreover, the court need not find "a genuine issue' where the only evidence presented is uncorroborated and self serving' testimony." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

In considering evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See TW Electric, 8-9 F.2d at 630-31 (citing Matsushita, 475 U.S. 574).

On a motion for summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, so long as the requirements of Federal Rule of Civil Procedure 56 are met. See Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citation omitted). Affidavits or declarations used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. See FED. R. CIV. P. 56(c)(4). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.


Rule 15(a) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been served, a party may amend its complaint only with the opposing party's written consent or the court's leave. Fed.R.Civ.P. 15(a). "The court should freely give leave when justice so requires, " and apply this policy with "extreme liberality." Id .; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). However, leave to amend is not to be granted automatically. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996).

The Court considers five factors in assessing a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of the amendment, and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of showing any of the factors above. See DCD Programs, 833 F.2d at 186. Of these factors, prejudice to the opposing party carries the greatest weight. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent prejudice, a strong showing of the other factors may support denying leave to amend. See id.

"Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Futility is a measure of the amendment's legal sufficiency. "[A] proposed amendment is futile only if no set of facts can be proved under the amendment... that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Thus, the test of futility is identical to the one applied when considering challenges under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Baker v. P. Far E. Lines, Inc., 451 F.Supp. 84, 89 (N.D. Cal. 1978); see Saul v. United ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.