United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT’S MOTION TO DISMISS (DOC. 3)
Lawrence J. O’Neill UNITED STATES CHIEF DISTRICT JUDGE
Plaintiff John Singh (“Plaintiff”) alleges that
Collectibles Management Resources (“Defendant”)
violated both state and federal laws by furnishing and
reporting erroneous information on Plaintiff’s account
and consumer report. Doc. 1, Ex. A, Complaint
now moves to dismiss Plaintiff’s claims pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the ground that
none of them states a claim upon which relief can be granted.
Doc. 3 at 1. Plaintiff did not oppose the motion.
See Doc. 4. For the reasons set forth more fully
below, the Court GRANTS the motion.
discovered in or around December 2015 that Defendant, a
California collections agency, was reporting a collection
account that was erroneous. Compl. at ¶ 5. Plaintiff
claims he contacted Defendant on January 1, 2016, by mail and
telephone and informed Defendant of the error. Id.
Plaintiff received a letter from Defendant in or around
February 2016, stating that the account did in fact belong to
him. Id. Plaintiff contends that he repeatedly
attempted to contact Defendant following the receipt of the
letter, but was unable to make contact and received no
19, 2016, Plaintiff filed suit against Defendant in the
Superior Court of California for the County of Fresno,
alleging that Defendant caused him injury by falsely
furnishing and reporting incorrect credit information. Doc. 1
at 1. In particular, Plaintiff brought four causes of action
against Defendant for: (1) negligent violation of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C.
§§ 1681 et seq.; (2) loss of opportunity;
(3) defamation; and (4) negligence. Compl. at 4-6. Defendant
removed this case to this Court pursuant to 28 U.S.C. §
1441(a) based on federal question jurisdiction arising from
Plaintiff’s FCRA claim. Doc. 1 at 1-2; 15 U.S.C.
§§ 1681 et seq.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) is a challenge to the sufficiency of the allegations
set forth in the complaint. A 12(b)(6) dismissal is proper
where there is either a “lack of a cognizable legal
theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balisteri
v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1990). In considering a motion to dismiss for failure to
state a claim, the court generally accepts as true the
allegations in the complaint, construes the pleading in the
light most favorable to the party opposing the motion, and
resolves all doubts in the pleader’s favor. Lazy Y.
Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
survive a 12(b)(6) motion to dismiss, the plaintiff must
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). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a
‘probability requirement, ’ but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a Plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555
(internal citations omitted). Thus, “bare
assertions...amount[ing] to nothing more than a
‘formulaic recitation of the elements’...are not
entitled to be assumed true.” Iqbal, 556 U.S.
at 681. “[T]o be entitled to the presumption of truth,
allegations in a complaint...may not simply recite the
elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). In practice, “a complaint...must
contain either direct or inferential allegations respecting
all the material elements necessary to sustain recovery under
some viable legal theory.” Twombly, 550 U.S.
at 562; see also Starr, 652 F.3d at 1216 (“the
factual allegations that are taken as true must plausibly
suggest an entitlement to relief”).
Fair Credit Reporting Act Claim
has instituted this private right of action against
Defendant, a furnisher of consumer credit information, for
violations of the FCRA. Compl. at 4. Plaintiff alleges that
in December 2015 he discovered Defendant was “reporting
a collection account that should not be reported.”
Id. at ¶ 5. Plaintiff notified Defendant that
the account should not be reported, and Defendant
“promised to investigate the matter, ” but never
did despite Plaintiff’s multiple attempts to resolve
the dispute. Id. Plaintiff claims Defendant’s
failure to do so violated “Section 1691o(a)” of
the FCRA. Id. at ¶ 10. Defendant argues the
claim fails because Defendant had no duty to investigate
Plaintiff’s complaint and, accordingly, did not violate
the FCRA. Doc. 3-1 at 1.
threshold matter, there is no “Section 1691o(a)”
of the FCRA. “15 U.S.C. § 1691, et seq.
is the Equal Credit Opportunity Act and does not contain a
subsection ‘o(a).’ Accordingly, Plaintiff has
failed to state a claim under the FCRA.” Ali v.
Capital One, No. 1:11-CV-02115-LJO, 2012 WL 260023, at
*3 (E.D. Cal. Jan. 27, 2012) (internal quotations omitted).
Nonetheless, the Court will construe Plaintiff’s FCRA
claim as having been brought under § 1681o(a) of the
FCRA, which provides for civil liability for negligent
noncompliance with the FCRA.
thrust of Plaintiff’s FCRA claim is that Defendant
allegedly furnished inaccurate information to Plaintiff,
which he disputed, and failed to investigate the dispute. In
Nelson v. ChaseManhattan Mortgage Corp.,
the Ninth Circuit explained when a private right of action
exists under ...