United States District Court, N.D. California
LaTonya R. Finley, Plaintiff,
Capital One, et al., Defendants.
ORDER GRANTING DEFENDANT CAPITAL ONE BANK (USA),
N.A.'S MOTION TO DISMISS RE: DKT. NOS. 87, 89
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
LaTonya R. Finley brings this action against defendant
Capital One Bank (USA), N.A. (“Capitol
One”). Plaintiff filed her initial complaint on
September 22, 2016. (Dkt. No. 1.) Capitol One moved for
judgment on the pleadings on December 23, 2016, (Dkt. No.
65), and the Court granted defendant's motion on April
14, 2017. (Dkt. No. 85, “Order Granting MJOP”.)
The Court dismissed with prejudice plaintiff's state law
claims but granted plaintiff leave to amend her claim under
the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§§ 1681 et seq. In granting plaintiff leave
to amend, the Court specifically instructed plaintiff that to
state a claim under the FCRA plaintiff must allege
“what inaccurate information Capital One
furnished” to a credit reporting agency
(“CRA”), “facts indicating that the CRA
notified [Capitol One] of the dispute over the inaccurate
information”, and “why [Capitol One's]
investigation of the [alleged inaccurate information] was
unreasonable.” (Id. ¶¶
filed a three-page amended complaint on April 26, 2017,
alleging one count under the FCRA. (Dkt. No. 86, First
Amended Complaint (“FAC”).) Plaintiff alleges
generally that Capital One, as a furnisher of information to
CRAs, reported “derogatory information about
plaintiff.” (Id. ¶ 5.) Plaintiff also
contends that Capital One “failed to conduct an
investigation of plaintiff [sic] written dispute and provide
the results of an investigation to plaintiff within the 30
days period as required by 15 U.S.C. § 1681s-2.”
(Id. ¶ 10.)
One now moves to dismiss the FAC. (Dkt. No. 87.) Plaintiff
filed her opposition brief on May 30, 2017. (Dkt. No. 88.)
Capitol One filed its reply brief on June 2,
2017. (Dkt. No. 90.) Having carefully considered
the papers and for the reasons discussed below, the Court
concludes that plaintiff has failed to state a claim under
the FCRA. Accordingly, the Court Grants
Capital One's motion to dismiss. Because plaintiff was
previously provided with specific guidance on what was
required to state a claim under the FCRA and could not so
plead, the Court finds that further amendment would be futile
and a waste of judicial and party resources. See Saul v.
United States, 928 F.2d 829, 843 (9th Cir. 1991)
(holding that a district court does not err in denying leave
to amend where the amendment would be futile or where the
amended complaint would be subject to dismissal). Therefore
plaintiff's FAC is Dismissed With Prejudice.
claim arises from alleged violations of the FCRA. In her
three-page amended complaint, plaintiff avers that Capitol
One reported “derogatory information about
plaintiff” and “furnished false or misleading
representations . . .” to one or more CRAs. (FAC ¶
5.) Finley further alleges that she “disputed the
inaccuracy of the derogatory
information.” (Id. ¶ 6.) Finally,
plaintiff avers that defendant “failed to complete an
investigation” of plaintiff's written dispute.
(Id. ¶ 10.)
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the claims alleged in the complaint. Ileto
v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir.
2003). “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). All allegations of material fact
are taken as true and construed in the light most favorable
to the plaintiff. Johnson v. Lucent Techs., Inc.,
653 F.3d 1000, 1010 (9th Cir. 2011). To survive a motion to
dismiss, “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
One asserts that plaintiff fails to state a claim under the
FCRA. To state such a claim against a
“furnisher”-i.e., Capital One-a
plaintiff must plead, with enough facts, that (1) the
furnisher provided inaccurate information to a CRA; (2) a CRA
notified the furnisher of the dispute; and (3) the furnisher
failed to conduct a reasonable investigation into the
accuracy of the disputed information. Hernandez v. Wells
Fargo Home Mortg., No. 2:14-CV-1500 JCM VCF, 2015 WL
1204985, at *2 (D. Nev. Mar. 16, 2015) (citing Middleton
v. Plus Four, Inc., No. 2:13-CV-01421-GMN-GW, 2014 WL
910351, at *3 (D. Nev. Mar. 7, 2014)); see also Gorman v.
Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154-61 (9th
Cir. 2009). Finally, a plaintiff must allege facts that show
that the defendant furnisher acted either willfully or
negligently. See Gorman, 584 F.3d at 1154. The Court
addresses each of the four requirements below.
Furnisher Must Provide Inaccurate Information to CRA
to state a claim against a furnisher under section 1681s-2(b)
of the FCRA, a plaintiff must allege that an “actual
inaccuracy exists” on her credit report. Keller v.
Experian Info. Sols., Inc., No. 16-CV-04643-LHK, 2017 WL
130285, at *5 (N.D. Cal. Jan. 13, 2017) (citing Carvalho
v. Equifax Info. Servs., LLC, 629 F.3d 876, 890 (9th
Cir. 2010)). “Thus, even if a furnisher . . . fails to
conduct a reasonable investigation . . . . if a plaintiff
cannot establish that a credit report contained an actual
inaccuracy, then the plaintiff's claims fail.”
Id. (internal quotation marks omitted).
the FAC does not identify what inaccurate information Capital
One furnished to the CRAs Equifax, TransUnion, and Experian.
Plaintiff simply alleges that Capitol One reported
“derogatory information” including “false
or misleading representations of debt.” (FAC
¶¶ 5, 11.) This is not sufficient. As the Court
stated in its Order Granting MJOP, plaintiff must allege the
inaccurate information which Capital One provided to a CRA.
Finley has not done so, and for that reason alone
defendant's motion to dismiss is Granted. However, the
Court proceeds to discuss the other deficiencies of the FAC
with regard to the remaining elements of the FCRA.
CRA Must Notify ...