United States District Court, N.D. California
ORDER ON MOTIONS TO DISMISS (DOCKET NOS. 70 &
CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE
the Court are two motions to dismiss filed by Defendant
Experian Information Solutions, Inc. Having considered the
parties' papers and oral argument and for the reasons set
forth below, the Court GRANTS the motions.
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.
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. 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,
later alleges in the alternative that each CRA did not do so.
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.
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.
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).
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.
FCRA creates a private right of action only for willful or
negligent noncompliance with its requirements. 15 U.S.C.
§§ 1681n (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.
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.
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, ...