United States District Court, N.D. California, San Jose Division
DANIEL DOAK, on behalf of himself and all others similarly situated, Plaintiff,
CAPITAL ONE, N.A., and DOES 1-10 inclusive Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
WITH LEAVE TO AMEND RE: DKT. NO. 14
J. DAVILA, United States District Judge.
Daniel Doak filed this lawsuit on behalf of himself and a
putative class against Defendant Capital One Bank (USA)
for alleged violations of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 et seq.
Compl. ¶¶ 1, 2, 17. Plaintiff seeks statutory
damages pursuant to 15 U.S.C. § 1692k(a)(2)(A) and costs
of litigation and reasonable attorneys’ fees pursuant
to 15 U.S.C. §§ 1681n(a)(3) and 1681o(a)(2).
Id. ¶ 41. Capital One moves to dismiss
Plaintiff’s claims under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim and under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction. Def.’s Mot. to Dismiss at 1. For
the reasons below, Defendant’s motion is GRANTED.
November 8, 2016, Plaintiff filed for bankruptcy under
Chapter 7 of the United States Bankruptcy Code in the United
States Bankruptcy Court of the Northern District of
California (“Bankruptcy Court”). See
Def.’s Request for Judicial Notice (“RJN”)
(Dkt. No. 14-2), Ex. A; see also Compl. ¶ 12. When
Plaintiff filed his Bankruptcy Petition, he had a consumer
debt with Capital One. Compl. ¶ 13. Capital One
allegedly received notice of Plaintiff’s Bankruptcy
Petition that month. Id. ¶ 14.
November 29, 2016, Capital One accessed Plaintiff’s
consumer credit report through Equifax, a credit reporting
agency (“CRA”). Id. On December 9, 2016,
Capital One accessed Plaintiff’s credit report for a
second time through Trans Union, another CRA. Id.
¶ 15. On both occasions, Capital One allegedly
“used false pretenses, namely the representation it
intended to use Plaintiff’s consumer report for a
permissible account review or collection purpose, when it had
no such permissible purpose(s), in order to obtain
Plaintiff’s private personal and financial information
for the illegal purpose of attempting to collect on the
subject Debt.” Id. ¶ 37. Plaintiff claims
that Capital One committed “knowing and willful
violations of the FCRA” by accessing Plaintiff’s
consumer credit report with “actual knowledge”
that it lacked a permissible purpose. Id.
alleges that Capital One conducted these two credit checks
after the Bankruptcy Court entered its Bankruptcy Discharge.
Id. ¶¶ 34-35. Capital One, however,
accessed Plaintiff’s consumer credit report before the
Bankruptcy Court entered its Bankruptcy Discharge.
See RJN, Ex. B. Plaintiff corrected this error in
his Opposition to Capital One’s Motion to Dismiss,
stating that “although the discharge was granted, at
the time of the credit pull, the discharge had not yet been
granted and any reference to these credit pulls being
post-discharge was in error.” Pl.’s Opp’n
at 6-7 n.7. The court appreciates Plaintiff’s candor
informing the court of the erroneous references to
“post-discharge” credit pulls. See Id .
The court, thus, will rule on Capital One’s Motion to
Dismiss as if Plaintiff had pled the credit pulls occurred
prior to the Bankruptcy Court’s entering the Bankruptcy
November 2018, Plaintiff filed this action seeking class
certification, actual damages, statutory damages, injunctive
relief, costs of litigation, and reasonable attorneys’
fees for Capital One’s alleged willful violations of
the FCRA, and for Capital One causing him “mental
anguish and emotional distress.” Compl. ¶¶
Federal Rule of Civil Procedure 12(b)(1)
Rule of Civil Procedure 12(b)(1) provides that a party may
seek dismissal of a suit for lack of subject matter
jurisdiction. A Rule 12(b)(1) motion challenges a
court’s subject matter jurisdiction and may be either
facial or factual. Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted);
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
2004) (citation omitted). When a defendant brings a facial
challenge, as in this case, defendant claims that the
allegations in a complaint are “insufficient on their
face to invoke federal jurisdiction.” Safe
Air, 373 F.3d at 1039; see also Def.’s
Mot. to Dismiss at 4. “In resolving a facial attack,
the court assumes that the allegations are true and draws all
reasonable inferences in the plaintiff’s favor.”
Robertson v. Republic of Nicar., 2017 WL 2730177, at
*2 (N.D. Cal. June 26, 2017) (citing Wolfe v.
Strankman, 392 F.3d at 362).
Federal Rule of Civil Procedure 12(b)(6)
Rule of Civil Procedure 12(b)(6) provides that a party may
seek dismissal of a suit for failure to state a claim upon
which relief can be granted. A court must “take all
allegations of material fact as true and construe them in the
light most favorable to the nonmoving party.” Parks
Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th
Cir. 1995) (citation omitted). A court may dismiss a
complaint on a Rule 12(b)(6) motion “based on the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory.”
Godecke v. Kinetic Concepts, Inc., 2019 WL 4230098,
at *3 (9th Cir. Sept. 6, 2019) (quoting Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990)). Defeating a motion to dismiss requires that the
complaint “contain[s] 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) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible on its face “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
(citing Twombly, 550 U.S. at 556).
reviewing a Rule 12(b)(6) motion, the court may
“consider[ ]” “[d]ocuments whose contents
are alleged in a complaint and whose authenticity no party
questions, but which are not physically attached to the
pleading.” Tunac v. United States, 897 F.3d
1197, 1207 n.8 (9th Cir. 2018) (citing Branch v.
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)),
overruled on other grounds by Galbraith v. Cty. of Santa
Clara, 307 F.3d 1119 (9th Cir. 2002) (quotations
omitted). However, “the mere mention of the existence
of a document is insufficient to incorporate the contents of
a document.” Coto Settlement v. Eisenberg, 593
F.3d 1031, 1038 (9th Cir. 2010) (citation omitted). To
incorporate a document that is referenced, but not attached
to a complaint, the complaint must describe the
document’s “contents, ” and the document
must be “integral” to the complaint.
Tunac, 897 F.3d at 1207 n.8 (citing Coto
Settlement, 593 F.3d at 1038).