Pena v. Wells Fargo Bank, N.A.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STAY OR BIFURCATE DISCOVERY Re: Dkt. Nos. 39, 40

          Maxine M. Chesney United States District Judge.

         Before the Court are two motions: (1) defendant's "Motion to Dismiss," filed October 28, 2019; and (2) defendant's "Motion to Stay Discovery . . ., and in the Alternative, to Bifurcate Discovery," filed October 28, 2019. Both motions have been fully briefed.^[1] Having read and considered the papers filed in support of and in opposition to the motions, the Court rules as follows.^[2]

         BACKGROUND

         For purposes of the instant motion, the Court assumes the following allegations in the operative complaint, the First Amended Complaint ("FAC"), are true.

         Plaintiff Eduardo Peña "obtained status under DACA [Deferred Action for Childhood Arrivals] along with a Social Security number and federal work authorization in or around 2012" and "[h]e has since renewed his DACA status three times." (See FAC ¶ 9.) He presently is employed as a "tax manager." (See FAC ¶ 8.)

         "In or around November 2018," plaintiff "submitted an online application for an auto loan through the Wells Fargo website," and, "[w]hen the online application requested that he enter his citizenship status," he selected "non-resident alien." (See FAC ¶ 49.) "At some point after [plaintiff] submitted his application," defendant "conducted a hard credit check and pull of his consumer report from one or more credit bureaus." (See FAC ¶ 50.) At another point after he submitted his application, plaintiff "received a phone call from a Wells Fargo representative to process the loan" and said representative "provided him with additional paperwork to complete and asked him for a copy of his Social Security card." (See FAC ¶ 51.) After plaintiff provided his Social Security card, the representative then asked him for "a copy of his work permit," which plaintiff also provided. (See id.) Thereafter, the representative told plaintiff he was "ineligible for the loan because his DACA status expired within the loan period" (see id.); plaintiff's "creditworthiness" was "not consider[ed]" (see FAC ¶ 52.) Although plaintiff subsequently requested defendant send him a "written explanation" for the denial, he did not receive an explanation that "accurately stated the reason." (See FAC ¶ 53.)

         Based on said allegations, plaintiff alleges three claims for relief, specifically, (1) "Alienage Discrimination (42 U.S.C. § 1981)"; (2) "Failure to Provide Written Notice of Reason for Denial (ECOA, 15 U.S.C. § 1691 and 12 C.F.R. § 1002.9(a))"; and (3) "Obtaining Consumer Reports Without a Permissible Purpose (FCRA, 15 U.S.C. § 1681b(f))."

         DISCUSSION

         A. Motion to Dismiss

         The Court considers plaintiff's three claims, in turn.

         1. First Claim: Alienage Discrimination

         In the First Claim for Relief, plaintiff alleges defendant's denial of his application for an automobile loan violated 42 U.S.C. § 1981, which statute provides, in relevant part, that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." See 42 U.S.C. § 1981(a). Section 1981 "protect[s] primarily against racial discrimination" but also "protects against discrimination on the basis of alienage." See Sagana v. Tenorio, 384 F.3d 731, 738 (9th Cir. 2004).

         At the outset, the Court notes that several issues bearing on plaintiff's § 1981 claim are not directly addressed by the parties in their respective submissions, and, consequently, the Court, without making a finding herein as to how such issues should be resolved, assumes the following: (1) aliens protected by § 1981 are aliens who are lawfully present in the country, see Anderson v. Conboy, 156 F.3d 167, 180 (2nd Cir. 1998) (finding "[i]f an employer refuses to hire a person because that person is in the country illegally, that employer is discriminating on the basis not of alienage but of noncompliance with federal law"); (2) DACA recipients are considered to be lawfully in the country, see Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1059 (9th Cir. 2014 (observing Department of Homeland Security "considers DACA recipients not to be unlawfully present in the United States"); and (3) the length of the loan plaintiff sought from defendant extended beyond the date his DACA status would expire if not renewed (see FAC ¶ 51).

         Next, it is undisputed that, if a person is "approved into the DACA program," the person is "granted a renewable two-year term of deferred action." See Regents of the University of California v. United States Department of Homeland Security, 908 F.3d 476, 490 (9th Cir. 2018). Stated otherwise, all DACA recipients must seek a renewal every two years. In light of the factual allegations in the FAC, "accept[ed] as true," see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), as well as the assumptions identified above, the Court finds defendant's denial of plaintiff's application, allegedly based on a ...