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Fair v. Experian Information Solutions, Inc.

United States District Court, N.D. California

July 20, 2017

JEREMY FAIR, Plaintiff,



         Before the Court are two motions to dismiss filed by Defendant Experian Information Solutions, Inc.[1] Having considered the parties' papers and oral argument and for the reasons set forth below, the Court GRANTS the motions.


         The Court has discussed the factual background relevant to Marino's allegations in a previous order (Docket No. 62) and his factual allegations are substantially the same and in large part identical in Plaintiffs' combined First Amended Complaint (1AC). Marino adds detail to his allegations concerning his mortgage.

         Heath previously filed a separate complaint and now joins Dahlen and Marino in the consolidated 1AC. The factual background that follows is taken from Heath's portion of the 1AC. On July 2, 2012, Heath filed for Chapter 13 bankruptcy. On August 10, 2012, he obtained a credit report from CIN Legal Data Services that was based on information that CIN gathered from the three major credit reporting agencies (CRAs), including Experian.[2] Heath's plan was confirmed on November 8, 2012. On April 11, 2016, Heath ordered a “three bureau report” from Experian. Docket No. 65, 1AC ¶ 132. He found nine “trade lines” in the report that were reporting information he believed to be inaccurate, and on August 5, 2016 he disputed those trade lines by letter to Experian and the other two major CRAs, noting “that Plaintiff had filed for bankruptcy and the account was not reporting the bankruptcy accurately or worse not at all.” Id. ¶ 135. Heath alleges that each CRA received his dispute letter and notified each furnisher, [3] and later alleges in the alternative that each CRA did not do so.

         On November 15, 2016, Heath obtained a second credit report from Experian and the other major CRAs. Heath alleges that the second report contained a number of inaccuracies, discussed below, related to his bankruptcy.


         A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). On a motion under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, this principle is inapplicable to legal conclusions; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

         When granting a motion to dismiss, the court is generally required to grant the plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). In determining whether amendment would be futile, the court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). The court may deny leave to amend for “repeated failure to cure deficiencies by amendments previously allowed.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809-10 (9th Cir. 1988).


         In their 1AC, Plaintiffs bring two causes of action, one under the federal Fair Credit Reporting Act (FCRA), and one under California's Consumer Credit Reporting Agencies Act (CCRAA). They bring only the FCRA claim against Experian.

         The FCRA creates a private right of action only for willful or negligent noncompliance with its requirements. 15 U.S.C. §§ 1681n[4] (willful), o (negligent); Gorman, 584 F.3d at 1154. A plaintiff may recover actual or statutory damages, as well as punitive damages and attorneys' fees, for willful noncompliance, § 1681n, but only actual damages for negligent noncompliance, § 1681o.

         In its Order dismissing Dahlen's and Marino's original complaints, the Court found that neither Plaintiff plead “sufficient facts to support an inference that Experian did fail to notify furnishers of Plaintiffs' disputes.” Docket No. 62, Order on Mots. to Dismiss (March 29 Order) 10. It dismissed those Plaintiffs' willful noncompliance claims against Experian on that basis, with leave to amend. The 1AC does not remedy this deficiency as to any Plaintiff. Accordingly, Plaintiffs' claims of willful noncompliance must be dismissed.

         The FCRA requires CRAs, in response to a dispute by a consumer, to “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file” within thirty days of receiving notice of the consumer's dispute. § 1681i(a)(1)(A). Section 1681i also requires that, within five days of receiving notice of the consumer's dispute, CRAs must “provide notification of the dispute to any person who provided any item of information in dispute.” § 1681i(a)(2). Thus, in order to state a claim for negligent violation of section 1681i, a plaintiff must establish that: 1) his credit files contained inaccurate or incomplete information; 2) he directly notified the defendant of the inaccuracy; 3) the defendant failed to respond to the dispute; and 4) the defendant's failure to reinvestigate caused the plaintiff to suffer actual damages. See Taylor v. First Advantage Background Servs. Corp., 2016 WL 4762268, at *5 (N.D. Cal.); see also Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, ...

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