United States District Court, D. Arizona
Russel Holland United States District Judge.
Mountain America Federal Credit Union moves to dismiss
plaintiff's claims against it. This motion is opposed,
plaintiff moves for leave to amend his
motion for leave to amend is opposed. Oral argument was requested
but is not deemed necessary.
Tyler Cook purchased a vehicle on March 6, 2013, which he
financed with a loan provided by defendant Mountain America
Federal Credit Union. “Plaintiff fell behind on his
vehicle payments and the vehicle was repossessed and sold at
auction.” Plaintiff alleges that “[i]n
December of 2015, the deficiency balance for the vehicle was
assigned to Financial Assistance, Inc. . . ., a debt
collector.” Plaintiff alleges that “[d]espite
the assignment of the deficiency balance to the debt
collector, Mountain America continues to report a balance of
$13, 651.00 and updates the account as [a] ‘charge
off.'” Thus, plaintiff alleges that both
Financial Assistance and Mountain America are reporting this
same debt, and that the only difference is that Financial
Assistance reports the debt amount as $13, 652 and Mountain
America reports the debt amount as $13, 651.
alleges that he has complained more than once to defendants
Experian Information Solutions, Inc; Equifax Information
Services, LLC; and TransUnion, LLC about this duplicate
reporting but none of them has done anything about
it. Plaintiff alleges that he has also sent
two letters to Mountain America about the double reporting,
but that Mountain America has never responded. Plaintiff
alleges that “[d]ue to [d]efendants reporting, [he] has
been denied credit for the purchase of a new home” and
that he has had “multiple rental applications
denied[.]” Plaintiff alleges that the problem with
his credit has “caused an enormous stress on his
marriage” and “caused [him] to suffer extreme
emotional distress as well as many sleepless
22, 2018, plaintiff commenced this action. In his complaint,
plaintiff asserts a Fair Credit Reporting Act (FCRA) claim
against Mountain America.
13, 2018, Mountain America answered plaintiff's
complaint. On the same day but a few minutes later,
Mountain America filed a motion to dismiss pursuant to Rule
12(b)(6), Federal Rules of Civil Procedure. The motion to
dismiss is ready for disposition as is plaintiff's motion
for leave to amend.
the law of the 9th Circuit, where a Rule 12(b)(6) motion to
dismiss for failure to state a claim upon which relief can be
granted is filed after an answer is filed, a court may deny
the motion to dismiss as untimely, or the court may consider
the Rule 12(b)(6) motion to dismiss as a motion for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure
12(c).” Beery v. Hitachi Home Electronics
(America), Inc., 157 F.R.D. 477, 479 (C.D. Cal. 1993).
The court perceives no reason not to consider Mountain
America's motion to dismiss as a Rule 12(c) motion.
order to survive a Rule 12(c) motion, a complaint must
“contain ‘sufficient factual matter, accepted
as true, to state a claim of relief that is plausible on its
face.'” Harris v. County of Orange, 682
F.3d 1126, 1131 (9th Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “[A] claim [is]
plausible when a plaintiff pleads sufficient facts to allow
the [c]ourt to draw a reasonable inference of misconduct, but
the [c]ourt is not required ‘to accept as true a legal
conclusion couched as a factual allegation.'”
Id. (quoting Iqbal, 556 U.S. at 678).
initial matter, there is some disagreement between the
parties as to compliance with Local Rule 12.1(c). Rule
12.1(c) provides that a Rule 12(b)(6) or Rule 12(c) motion
will not be considered unless the motion “includes a
certification that, before filing the motion, the movant
notified the opposing party of the issues asserted in the
motion and the parties were unable to agree that the pleading
was curable in any part by a permissible amendment offered by
the pleading party.” In Mountain America's motion,
its counsel states that he “sent an email to
[p]laintiff's counsel, attaching a draft version of this
motion to dismiss, notifying [p]laintiff of the issues
asserted to determine if the parties were able to agree on a
permissible amendment. After exchanging emails, the parties
were not able to agree on a permissible
amendment.” Plaintiff contends that the parties were
still discussing the issues raised in the motion to dismiss
when Mountain America filed the instant motion and suggests
that the instant motion to dismiss was premature. However,
the emails exchanged indicate that Mountain America believed
that plaintiff had not stated a plausible FCRA claim and that
plaintiff was standing by his allegations. The emails do
not indicate that it was likely that the parties were going
to reach agreement as to a permissible amendment. Defense
counsel adequately complied with Rule 12.1(c).
then to the merits of the motion to dismiss, the FCRA was
enacted “‘to ensure fair and accurate credit
reporting, promote efficiency in the banking system, and
protect consumer privacy.'” Gorman v. Wolpoff
& Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009)
(quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S.
47, 52 (2007)). “[T]he FCRA imposes some duties on the
sources that provide credit information to [consumer
reporting agencies (CRAs)], called ‘furnishers' in
the statute.” Id.
1681s-2 [of the FCRA] sets forth ‘[r]esponsibilities of
furnishers of information to consumer reporting
agencies,' delineating two categories of
responsibilities.” Id. at 1154.
“Subsection (a) details the duty ‘to provide
accurate information[.]” Id. However,
“[d]uties imposed on furnishers under subsection (a)
are enforceable only by federal or state agencies.”
1681s-2(b) imposes a second category of duties on furnishers
of information.” Id.
Subsection 1681s-2(b) provides that, after receiving a notice
of dispute, ...