Opinion
Case No. 17-cv-03435-LB
07-19-2017
ROBERT JACOBSEN, Plaintiff, v. CHEX SYSTEMS, INC., Defendant.
ORDER GRANTING MOTION TO DISMISS
INTRODUCTION
Robert Jacobsen, who is representing himself, sued Chex Systems in the Small Claims Division of the Contra Costa County Superior Court, claiming that Chex failed to "correct inaccurate credit reporting" and "provide proof of derogatory credit within 30 days," in violation of the Fair Credit Reporting Act. Chex removed the case based on federal-question jurisdiction and moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and under Rule 12(b)(5) for insufficient service of process. The parties have consented to magistrate-judge jurisdiction. The court can decide the motion without oral argument, see Civil L.R. 7-1(b), and grants the motion to dismiss but with leave to amend.
Compl. - ECF No. 1-1 at 2-3. Record citations refer to material in the Electronic Case File ("ECF"); pinpoint citations are to the ECF-generated page numbers at the top of documents.
Notice of Removal - ECF No. 1 at 2; Motion to Dismiss - ECF No. 7 at 2.
ECF Nos. 8, 10.
STATEMENT
Mr. Jacobsen sought $2,500 in damages in his small-claims complaint based on Chex's alleged violation of the Fair Credit Reporting Act. He claims that Chex failed to "correct inaccurate credit reporting" for more than five years — starting on May 8, 2012 through the date he filed his complaint on May 9, 2017 — and failed to "provide proof of derogatory credit within 30 days per Fair Credit Reporting Act," which prevented him from opening a bank account and using the "US banking system." Mr. Jacobsen is "in Real Estate and need banks to fund various projects, have a bank account for me and various companies I own and operate."
Compl. - ECF No. 1-1 at 2-3.
Id. at 3.
Id.
Mr. Jacobsen served his complaint by U.S. registered mail, return receipt requested, on Chex's designated agent for service of process. Chex's agent received the complaint on May 15, 2017, and Chex timely removed the case to federal court on June 14, 2017.
Notice of Removal, Ex. B - ECF No. 1-2 at 2-3.
Id. at 2; Certificate of Service - ECF No. 4.
Chex filed its motion to dismiss on June 21, 2017. On June 27, 2017, Mr. Jacobsen filed a "Notice of Non-Opposition," stating he did not "object to this case being dismissed and removed back to" Small Claims Court. On June 28, 2017, the court notified Mr. Jacobsen that the pending motion was not a motion to remand and that if he did not oppose the motion, he needed to say so unequivocally. The court extended the deadline to file the opposition from July 5, 2017 to July 12, 2017. The court also provided Mr. Jacobsen — who is representing himself — with information about the court's handbook for pro se litigants and its Legal Help Center. Mr. Jacobsen did not file anything else.
Motion to Dismiss - ECF No. 7 at 2.
Notice of Non-Opposition - ECF No. 11 at 1.
Notice Re: Motion to Dismiss and Resources - ECF No. 12.
Id.
Id.
ANALYSIS
1. Rule 12(b)(6) Motion to Dismiss
Chex moves to dismiss the complaint on the grounds that (1) the Fair Credit Reporting Act's statute of limitations bars the claim and (2) Mr. Jacobsen pleads only the conclusion that Chex violated the act and not any facts that support that conclusion.
Motion to Dismiss - ECF No. 7 at 3-5.
1.1 Legal Standard for Motions to Dismiss
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant "fair notice" of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This statement "must contain 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) (quoting 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. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a mere possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). A complaint does not need detailed factual allegations, but "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (internal citations omitted). Also, "[w]here 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.''" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
A court construes pro se pleadings "leniently." See De la Vega v. Bureau of Diplomatic Sec., No. 07-CV-3619-WHA, 2007 WL 2900496, at *1 (N.D. Cal. Oct. 1, 2007). If a court dismisses a complaint, it gives leave to amend unless the "the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).
1.2 Statute of Limitations
Chex argues that the Fair Credit Reporting Act's five-year statute of limitations bars Mr. Jacobsen's claim. Chex points to Mr. Jacobsen's complaint, where in response to the question, "Why does the defendant owe the plaintiff money?", Mr. Jacobsen responded, "More than five years of failing to correct inaccurate credit reporting."
Motion to Dismiss - ECF No. 7 at 3-4.
Id. at 4 (quoting Compl. - ECF No. 1-1 at 3, ¶ 3(a)).
Under the Act, a plaintiff must file his lawsuit "not later than the earlier of" (1) two years after the plaintiff discovers a violation that is the basis for liability or (2) five years after the date of the violation that is the basis for liability. 15 U.S.C. § 1681p.
Mr. Jacobsen's response of "more than five years" supports the conclusion that the alleged conduct persisted for more than five years. But in the next subparagraph of his complaint, he pleads a "Date started" for Chex's conduct of "5/8/12," which is five years before Mr. Jacobsen filed his complaint on May 9, 2017.
Compl. - ECF No. 1-1 at 3, ¶ 3(b).
The court does not resolve this inconsistency in this order because it separately dismisses the complaint for failure to state a claim. But see Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2009). With any amended complaint, Mr. Jacobsen must plead facts that establish a timely claim.
1.3 Plausibility of Claim
Chex argues that Mr. Jacobsen pleads only his conclusion that Chex violated the Act and not facts showing any violation or the statutory section that Chex violated.
Motion to Dismiss - ECF No. 7 at 3-4.
"Congress enacted the Fair Credit Reporting Act ("FCRA") 'in 1970 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)). To ensure that credit reports are accurate, the FCRA imposes duties on the sources — called "furnishers" in the statute — that provide credit information to the credit reporting agencies. Id. Certain obligations are triggered "upon notice of dispute." Id. If a consumer reporting agency notifies a furnisher that the consumer disputes the information, then the furnisher must:
(A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title;
(C) report the results of the investigation to the consumer reporting agency;
(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the investigation promptly—
15 U.S.C. § 1681s-2(b)(1); see Abbot v. Experian Info. Solutions, Inc., 179 F. Supp. 3d 940, 944 (N.D. Cal. 2016). The FCRA creates a private right of action for both negligent and willful noncompliance with this requirement. Gorman, 584 F.3d at 1154 (citing 15 U.S.C. §§ 1681n-1681o).(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of information.
Here, Mr. Jacobsen concludes that Chex violated the statute but pleads no facts showing what the disputed information is or what Chex did or did not do that violates the FCRA. The court is not sure what Mr. Jacobsen means by claiming that Chex did not "provide proof of derogatory credit within 30 days." The court dismisses the claim with leave to amend. In any amended complaint, Mr. Jacobsen must say plainly who Chex is, what it did, and how it violated the Act.
Compl. - ECF No. 1-1 at 3.
2. Rule 12(b)(5) Motion Challenging Sufficiency of Service
Chex argues that Mr. Jacobsen did not serve it properly because the California Code of Civil Procedure does not authorize service by certified mail.
Motion to Dismiss - ECF No. 7 at 5-6.
In cases filed in state court originally, and then removed to federal court, the sufficiency of service before removal is determined under state law; if process is defective, "such process or service may be completed or new process issued in the same manner as cases filed originally in federal court." 28 U.S.C. § 1448; Fed. R. Civ. P. 81(c); see Anderson v. Allstate Ins. Co., 630 F.2d 677, 682 (9th Cir. 1980). In a California small-claims action, a plaintiff may serve the defendant in person or by substituted service under California Civil Procedure Code 415.20(a-b). Cal. Civ. Proc. Code § 116.340(a)(2)-(3). Alternatively, "[t]he clerk may cause a copy of the [complaint] to be mailed to the defendant by any form of mail providing for a return receipt." Cal. Civ. Proc. Code § 116.340(a)(1).
Mr. Jacobsen did not serve the defendant personally or by substituted service when he sent his complaint by registered mail, return receipt requested. That said, the superior-court Clerk of Court could have served the complaint this way. And technically, after removal, service can be completed under Rule 4, which in turn authorizes service on a corporation under any means permitted under state law. Fed. R. Civ. P. 4(e-h). "Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).
Notice of Removal, Ex. B - ECF No. 1-2 at 2-3.
Under the circumstances, given actual notice of the lawsuit and the procedural posture of the case, the court does not dismiss for failure to properly serve Chex. See Dill v. Berquist Constr. Co., 24 Cal. App. 4th 1426, 1437 (1994); Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984).
CONCLUSION
The court grants the motion and dismisses the complaint with leave to amend. The court recognizes that Mr. Jacobsen did not file an opposition, but given the court's obligation to construe pro se pleadings liberally and the Ninth Circuit's approach to dismissals with leave to amend, the court thinks this is the better approach.
Mr. Jacobsen must file any amended complaint by August 9, 2017.
IT IS SO ORDERED.
Dated: July 19, 2017
/s/_________
LAUREL BEELER
United States Magistrate Judge