United States District Court, D. Arizona
G. Campbell United States District Judge.
Cristi Kauffman brought this action against her former
husband, Michael Kauffman, his former counsel in their
disputed state family-law case, Trans Union LLC, and Trans
Union's wholly owned subsidiary, TransUnion Interactive
Incorporated (“TUI”), after Mr. Kauffman
allegedly obtained credit-monitoring services under
Plaintiff's name through Trans Union and TUI. Doc. 1.
Trans Union moved to dismiss on January 9, 2018, but the
Court granted Plaintiff's request for leave to amend and
denied the motion as moot. Doc. 36. Plaintiff filed a first
amended complaint (“FAC”) (Doc. 37), and Trans
Union now moves to dismiss the FAC (Doc. 44). The motion is
fully briefed, and no party requests oral argument. Docs. 52,
53. For the reasons explained below, the Court will grant
Trans Union's motion.
purposes of this motion, Plaintiff's factual allegations
are accepted as true. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Plaintiff and Mr. Kauffman divorced in
January 2017. Doc. 37 ¶ 29. Plaintiff alleges that
during the course of their subsequent family-law proceeding
in Maricopa County Superior Court, Mr. Kauffman
“obtained two consumer reports on [Plaintiff] under
false pretenses from [Trans Union] through its wholly owned
subsidiary [TUI]” and provided the reports to his
attorney “for purposes outside the scope of permissible
purposes” under the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 et seq.
Id. ¶¶ 1, 32.
reports, attached to the complaint but heavily redacted (Doc.
37-1 at 2-45), were obtained through
https://membership.tui.transunion.com on September 9, 2017,
under the heading “Credit Monitoring” and
subheading “Credit Report.” The reports begin
with an “Account Summary, ” which includes
Plaintiff's credit score, balances, payments, number of
open and closed credit accounts, inquiries, and other similar
information. Doc. 37-1 at 2, 8. The reports also contain a
“Personal Information” section, which includes
Plaintiff's name, date of birth, current and previous
addresses, and current and previous employers. Id.
at 3, 9. The remainder of each report provides details
regarding each of Plaintiff's accounts, inquiries, and
public records. Id. at 3-7, 9-45.
attorney used the reports “in evaluating and
defending” Mr. Kauffman's position in the family
law matter. Id. ¶ 36. Plaintiff first learned
of the reports when they were turned over to her attorney
with Mr. Kaufman's disclosure statement. Id.
¶ 39. Plaintiff was “emotionally upset” when
she learned of the reports, and she worried that Mr. Kauffman
obtained them partly for the purpose of locating and stalking
her. Id. ¶ 71. Plaintiff went to Trans
Union's website and contacted the customer service
hotline. Id. ¶ 41. After two phone calls, Trans
Union agreed that Mr. Kauffman's access was unauthorized,
blocked his access, and froze the account. Id.
¶¶ 41-51. A few days later, Plaintiff received two
letters - one from “TransUnion LLC” and one from
“TransUnion Interactive” - confirming the phone
calls and the suspicious activity on her account.
Id. ¶¶ 55-57; Doc. 37-1 at 47, 49-50.
alleges that Trans Union and TUI “failed to use proper
care to assure that it was [Plaintiff] who was setting up the
credit monitoring service, rather than an imposter.”
Doc. 37 ¶ 72. She further alleges that Trans Union and
TUI “are alter egos of one another” and
“worked in conjunction to provide the reports to”
Mr. Kauffman. Id. ¶¶ 68-70. Finally,
Plaintiff asserts that Trans Union and TUI provided a
“consumer report” to Mr. Kauffman “without
a permissible purpose allowed under the FCRA.”
Id. ¶ 74.
successful motion to dismiss under Rule 12(b)(6) must show
either that the complaint lacks a cognizable legal theory or
fails to allege facts sufficient to support its theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss as
long as it contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim has facial plausibility
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).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
asserts three claims against Trans Union: (1) negligent and
(2) willful violation of 15 U.S.C. § 1681b(a), and (3)
common law invasion of privacy. Doc. 37 ¶¶ 84-104.
Trans Union argues that the first two claims fail because
Plaintiff has not alleged facts showing a “consumer
report” was involved, and the third claim fails because
it is preempted by the FCRA. Doc. 44.
FCRA requires that a consumer reporting agency
(“CRA”) have a “permissible purpose”
for furnishing a “consumer report.” 15 U.S.C.
§ 1681b(a); TRW, Inc. v. Andrews, 534 U.S. 19,
23 (2001). Section 1681b provides an exhaustive list of the
permissible purposes. See Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1545 (2016). Trans Union concedes that it is
a CRA. Doc. 44 at 1.
state a § 1681b claim against Trans Union, Plaintiff
must allege facts showing that Trans Union furnished a
“consumer report” without a permissible purpose.
See 15 U.S.C. § 1681b(a); Rosco v. Experian
Info. Sols., No. 2:15-CV-325-RMP, 2017 WL 6061977, at *7
(E.D. Wash. Dec. 7, 2017). Additionally, Plaintiff must
allege that Trans Union acted negligently or willfully. 15
U.S.C. §§ 1681n, 1681o; see also
Guimond v. ...