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Doak v. Capital One, N.A.

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

September 24, 2019

DANIEL DOAK, on behalf of himself and all others similarly situated, Plaintiff,
v.
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

          EDWARD J. DAVILA, United States District Judge.

         Plaintiff Daniel Doak filed this lawsuit on behalf of himself and a putative class against Defendant Capital One Bank (USA) N.A.[1] 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.

         I. BACKGROUND

         On 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[2]; 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.

         On 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. ¶¶ 34-36.

         Plaintiff 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 Discharge.

         In 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. ¶¶ 23, 39.

         II. LEGAL STANDARDS

         A. Federal Rule of Civil Procedure 12(b)(1)

         Federal 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).

         B. Federal Rule of Civil Procedure 12(b)(6)

         Federal 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).

         In 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).

         C. ...


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