United States District Court, D. Arizona
Honorable Susan M. Brnovich, United States District Judge
before the Court is Defendant Trans Union LLC's
(“Trans Union”) Motion to Dismiss Plaintiff's
Complaint and Memorandum in Support. (Doc. 20). Plaintiff has
responded (Doc. 28) and Defendant has replied (Doc. 31). The
Motion is ready for ruling and will be granted.
filed for Chapter 7 Bankruptcy on February 27, 2018. (Doc. 1
¶ 10). On June 13, 2018, Plaintiff received an Order of
Discharge from the Bankruptcy Court. (Doc. 1 ¶ 11).
After the order of discharge issued, Plaintiff obtained his
Trans Union and Equifax credit disclosures. (Doc. 1 ¶
13). In each disclosure, Plaintiff noticed the Lending Club
tradelines were reported without a notation of bankruptcy
discharge. (Doc. 1 ¶ 7). Plaintiff submitted letters to
Trans Union and Equifax disputing the Lending Tree tradelines
and asking that they report the tradelines with the notation
of bankruptcy discharge. (Doc. 1 ¶¶ 13-16). Trans
Union and Equifax forwarded the dispute to Lending Club.
(Doc. 1 ¶ 17). After investigation, Trans Union and
Equifax refused or failed to report the tradeline with the
notation of bankruptcy discharge. (Doc. 1 ¶¶
18-19). Plaintiff alleges Defendants' actions violate the
Fair Credit Reporting Act (the “FCRA”), 15 U.S.C.
§ 1681 et seq.
Motion to Dismiss
survive a Rule 12(b)(6) motion for failure to state a claim,
a complaint must meet the requirements of Rule 8(a)(2). Rule
8(a)(2) requires a “short and plain statement of the
claim showing that the pleader is entitled to relief, ”
so that the defendant has “fair notice of what the . .
. claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Dismissal under Rule 12(b)(6) “can be based on the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if
it contains sufficient factual matter, which, if accepted as
true, states a claim to relief that is “plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
Facial plausibility exists if the pleader sets forth
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Plausibility does not equal “probability,
” but requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id.
“Where a complaint pleads facts that are ‘merely
consistent' with a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557).
ordinarily may not consider evidence outside the pleadings in
ruling on a Rule 12(b)(6) motion to dismiss. See United
States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003).
“A court may, however, consider materials-documents
attached to the complaint, documents incorporated by
reference in the complaint, or matters of judicial notice-
without converting the motion to dismiss into a motion for
summary judgment.” Id. at 908.
Fair Credit Reporting Act (FCRA)
enacted the [FCRA] to ensure fair and accurate credit
reporting, to promote efficiency in the banking system, and
to protect consumer privacy.” Gorman v. Wolpoff
& Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009)
(internal citations and quotation marks omitted). A
prerequisite for bringing a claim against a credit reporting
agency under either § 1681e or § 1681i is evidence
of an inaccuracy in the credit report. Guimond v. Trans
Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.
1995) (“In order to make out a prima facie
violation under § 1681e(b), a consumer must present
evidence tending to show that a credit reporting agency
prepared a report containing inaccurate information.”);
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876,
890 (9th Cir. 2010) (“Although the FCRA's
reinvestigation provision, 15 U.S.C. § 1681i, does not
on its face require that an actual inaccuracy exist for a
plaintiff to state a claim, many courts, including our own,
have imposed such a requirement.”).
Consideration of Exhibits
has attached three documents to its Motion to Dismiss: (1) a
Declaration of Don Wagner (Doc. 20, Exh. A); (2)
Plaintiff's Bankruptcy petition (Doc. 20. Exh. B); and
(3) the Order of Discharge from the Bankruptcy Court (Doc.
20, Exh. C). Plaintiff objects to the Court's
consideration of the Declaration of Don Wagner.
Court may consider documents “whose contents are
alleged in the complaint and whose authenticity no party
questions, but which are not physically attached to the
[plaintiff's] pleading.” Davis v. HSBC Bank
Nevada, N.A., 691 F.3d 1152, 1160-1161 (9th Cir. 2012);
In re Bare Escentuals, Inc. Securities Litigation,
745 F.Supp.2d 1052, 1065 (N.D. Cal. 2010) (citing Van
Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980
(9th Cir. 2002)). Plaintiff's entire complaint against
Trans Union is based on the language in the report maintained
by Trans Union yet they did not attach the report. The
Declaration of Don Wagner simply authenticates and provides
the language that was used by Trans Union to report the
status of Plaintiff's Lending Club Corporation accounts.
Plaintiff did not challenge the authenticity of the
representation of how the accounts were reported but argue
that they are undated and so should not be considered.
However, Don Wagner, appropriately authenticates these
documents as those appearing during the relevant time period.
The Court will consider Exhibit A to the Motion to Dismiss.