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Jacobsen v. Chex Systems, Inc.

United States District Court, N.D. California, San Francisco Division

July 19, 2017

ROBERT JACOBSEN, Plaintiff,
v.
CHEX SYSTEMS, INC., Defendant.

          ORDER GRANTING MOTION TO DISMISS

          LAUREL BEELER UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Robert Jacobsen, who is representing himself, sued Chex Systems in the Small Claims Division of the Contra Costa County Superior Court, claiming that Chex failed to “correct inaccurate credit reporting” and “provide proof of derogatory credit within 30 days, ” in violation of the Fair Credit Reporting Act.[1] Chex removed the case based on federal-question jurisdiction and moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and under Rule 12(b)(5) for insufficient service of process.[2] The parties have consented to magistrate-judge jurisdiction.[3] The court can decide the motion without oral argument, see Civil L.R. 7-1(b), and grants the motion to dismiss but with leave to amend.

         STATEMENT

         Mr. Jacobsen sought $2, 500 in damages in his small-claims complaint based on Chex's alleged violation of the Fair Credit Reporting Act.[4] He claims that Chex failed to “correct inaccurate credit reporting” for more than five years - starting on May 8, 2012 through the date he filed his complaint on May 9, 2017 - and failed to “provide proof of derogatory credit within 30 days per Fair Credit Reporting Act, ” which prevented him from opening a bank account and using the “US banking system.”[5] Mr. Jacobsen is “in Real Estate and need banks to fund various projects, have a bank account for me and various companies I own and operate.”[6]

         Mr. Jacobsen served his complaint by U.S. registered mail, return receipt requested, on Chex's designated agent for service of process.[7] Chex's agent received the complaint on May 15, 2017, and Chex timely removed the case to federal court on June 14, 2017.[8]

         Chex filed its motion to dismiss on June 21, 2017.[9] On June 27, 2017, Mr. Jacobsen filed a “Notice of Non-Opposition, ” stating he did not “object to this case being dismissed and removed back to” Small Claims Court.[10] On June 28, 2017, the court notified Mr. Jacobsen that the pending motion was not a motion to remand and that if he did not oppose the motion, he needed to say so unequivocally.[11] The court extended the deadline to file the opposition from July 5, 2017 to July 12, 2017.[12] The court also provided Mr. Jacobsen - who is representing himself - with information about the court's handbook for pro se litigants and its Legal Help Center.[13] Mr. Jacobsen did not file anything else.

         ANALYSIS

         1. Rule 12(b)(6) Motion to Dismiss

         Chex moves to dismiss the complaint on the grounds that (1) the Fair Credit Reporting Act's statute of limitations bars the claim and (2) Mr. Jacobsen pleads only the conclusion that Chex violated the act and not any facts that support that conclusion.[14]

         1.1 Legal Standard for Motions to Dismiss

         A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This statement “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, 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.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a mere possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). A complaint does not need detailed factual allegations, but “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. Factual allegations must be enough to raise a claim for relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal citations omitted). Also, “[w]here a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.''” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

         A court construes pro se pleadings “leniently.” See De la Vega v. Bureau of Diplomatic Sec., No. 07-CV-3619-WHA, 2007 WL 2900496, at *1 (N.D. Cal. Oct. 1, 2007). If a court dismisses a complaint, it gives leave to amend unless the “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).

         1.2 Statute of Limitations

         Chex argues that the Fair Credit Reporting Act's five-year statute of limitations bars Mr. Jacobsen's claim.[15] Chex points to Mr. Jacobsen's complaint, where in response to the question, “Why does the defendant owe the plaintiff money?”, Mr. Jacobsen responded, “More than five years of failing to correct inaccurate credit reporting.”[16]

         Under the Act, a plaintiff must file his lawsuit “not later than the earlier of” (1) two years after the plaintiff discovers a violation that is the basis for liability or (2) five years after the date of the violation that is the basis for liability. 15 U.S.C. § 1681p.

         Mr. Jacobsen's response of “more than five years” supports the conclusion that the alleged conduct persisted for more than five years. But in the next subparagraph of his complaint, he pleads a “Date started” for Chex's conduct of “5/8/12, ” which is five years before Mr. Jacobsen filed his complaint on May 9, 2017.[17]

         The court does not resolve this inconsistency in this order because it separately dismisses the complaint for failure to state a claim. But see Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2009). With any amended complaint, Mr. Jacobsen must plead facts that establish a timely claim.

         1.3 ...


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