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Bath v. Experian Information Solutions Inc.

United States District Court, D. Colorado

May 10, 2019

BRIAN BATH, on behalf of himself and all other similarly situated individuals; Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC.; TRANS UNION, LLC; LEXISNEXIS RISK SOLUTIONS, INC.; AMERICAN EXPRESS COMPANY; PAYPAL; WELLS FARGO MERCHANT SERVICES, LLC; REALPAGE, INC.; TDBANK; FIRST PREMIER BANK; and Defendants.

          ORDER TO SHOW CAUSE, RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, AND ORDER

          NINA Y. WANG, MAGISTRATE JUDGE

         This matter comes before the court on several pending motions by both Plaintiff Brian Bath ("Plaintiff or "Mr. Bath") and the various Defendants:

         (1) Motion of Defendant American Express National Bank ("American Express") to Dismiss Plaintiffs Amended Complaint ("American Express' Motion to Dismiss") [#88, filed February 19, 2019];

         (2) LexisNexis Risk Solutions, Inc.'s Motion to Dismiss Plaintiffs First Amended Class Action Complaint ("LexisNexis' Motion to Dismiss") [#89, filed February 19, 2019];

         (3) Plaintiff Brian Bath Answer and Motion to Strike From the Record Defendant Experian Information Solutions Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath[1] ("Plaintiffs First Motion for Summary Judgment") [#91, filed February 19, 2019];

         (4) Plaintiff Brian Bath Answer and Motion to Strike From the Record Defendant Trans Union Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath ("Plaintiffs Second Motion for Summary Judgment") [#106, filed February 25, 2019];

         (5) Defendant Trans Union LLC's Objections and Motion to Strike Plaintiff's Summary Judgment Evidence ("Trans Union's Motion to Strike") [# 136, filed March 18, 2019];

         (6) Defendant Equifax Information Services LLC's Motion to Enforce the Settlement Agreement ("Equifax's Motion to Enforce") [#138, filed March 19, 2019];

         (7) Plaintiff's Unopposed Motion to Amend "Compaint" ("Plaintiffs Motion to Amend") [#144, filed March 21, 2019];

         (8) Well Fargo Bank, N.A.'s Motion to Enforce Settlement ("Wells Fargo's Motion to Enforce") [#145, filed March 21, 2019]; and

         (9) Defendants' Joint Motion for Protective Order [# 171, filed May 7, 2019].

         These Motions were referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b); the Order Referring Case dated January 29, 2019 [#59]; and various Memoranda [#92, #107, #137, #143, #149, #172]. Upon consideration of the Motions, this court respectfully RECOMMENDS that: American Express' Motion to Dismiss be GRANTED; LexisNexis' Motion to Dismiss be GRANTED; Plaintiffs First Motion for Summary Judgment be DENIED; Plaintiffs Second Motion for Summary Judgment be DENIED; Trans Union's Motion to Strike be DENIED; Equifax's Motion to Enforce be STRUCK; and Plaintiffs Motion to Amend be DENIED; and Wells Fargo's Motion to Enforce be GRANTED. In light of the Recommendation, this court GRANTS the Joint Motion for Protective Order, and STAYS discovery pending the resolution of this Recommendation by the presiding judge, the Honorable Raymond Moore.

         BACKGROUND

         Plaintiff Brian Bath initiated a Class Action Complaint against various defendants, [2]including but not limited to Experian Information Solutions, Inc. ("Experian"), in Denver District Court on December 10, 2018, alleging theft and fraud; fraudulent conversion; and violations of the Federal Credit Report Act, 15 U.S.C. § 1681 et seq. [#3]. On January 4, 2019, Experian filed an Answer to the Complaint. [#20]. On January 11, 2019, Experian removed the action to this court, based on the FCRA claims, [#l]. On January 18, 2019, Trans Union LLC ("Trans Union") filed its Answer and Defenses to Plaintiff s Complaint. [#46]. Other defendants, including Wells Fargo Merchant Services, LLC ("Wells Fargo") and Lexis Nexis Risk Solutions ("LexisNexis") filed motions to dismiss. See, e.g., [#38, 48].

         Plaintiff then moved to amend his Complaint on January 28, 2019, representing that his request was unopposed. [#57]. Three days later, Mr. Bath also moved to strike the motions to dismiss. [#64; #65; #66; #67]. Though certain defendants took issue with the characterization of Plaintiffs motion to amend as "unopposed," they acknowledged that Plaintiff was permitted to amend as a matter of course under Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure. See e.g., [#61, #62]. On February 4, 2019, the presiding judge, the Honorable Raymond P. Moore, granted Plaintiff s Motion to Amend, and denied the pending motions to dismiss and motions to strike as moot. Plaintiffs operative First Amended Class Complaint was docketed that same day. [#71].

         The First Amended Class Complaint asserted claims against Experian; Trans Union; LexisNexis; American Express; Bank of America ("BOA"); J.P. Morgan Chase National Corporate Services ("Chase"); OneMain Financial Services, Inc. ("OneMain"); Paypal; Synchrony Bank ("Synchrony"); Wells Fargo; Capital One, N.A. ('Capital One"); Reatlpage, Inc. ("RealPage"); TD Bank; First Premier Bank ('Tirst Premier"); and Barclays Bank ("Barclays") (collectively, "Defendants"). [#71]. In Count One brought against Experian and Trans Union, Plaintiff alleges various willful violations of the FCRA. [Id. at 8]. In Count Two, Mr. Bath alleges various violations of the FCRA against American Express, OneMain, Barclays, TD Bank, Wells Fargo, Chase, LexisNexis, Capital One, BOA, Realpage, First Premier, Synchrony, and Paypal. [Iddit 9-10]. Counts Three and Four are a state law claims for defamation brought against various Defendants. [Id. at 11-12]. Counts Five and Six assert negligence on the part of the Defendants [id. at 13-14], and Counts Seven and Eight allege invasion of privacy/false light against the Defendants. [Id. at 15-16]. Mr. Bath sought actual, statutory, and punitive damages, as well as injunctive relief [Id. at 17]. Equifax, CitiBank N. A., and Discover Financial Services were named in the original Complaint but were not named in the First Amended Class Complaint. Compare [#1]with[#71].

         After the docketing of the First Amended Class Complaint, numerous Defendants settled with Mr. Bath and were dismissed from the action: BOA [#111, #114]; OneMain [#84, #95]; Chase [#96], Barclays [#103]; Capital One [#135, #140]; and Synchrony [#154, #156]. There is no indication on the docket that Defendants Paypal, Realpage, First Premier, or TD Bank have been served. On February 11, 2019, Experian filed an Answer to the First Amended Class Complaint. [#83]. On February 19, 2019, American Express and LexisNexis filed separate Motions to Dismiss [#88, #89], and Trans Union answered the First Amended Class Complaint. [#90]. That same day, Mr. Bath moved to strike Experian's Answer and sought summary judgment against it. [#91]. Then, on February 25, 2019, Mr. Bath filed a substantially similar Motion to Strike against Trans Union [#106], triggering Trans Union to file its Motion to Strike Summary Judgment Evidence [#136].

         The court held a Status Conference on March 11, 2019, in which the Parties and the court discussed certain Defendants' position that their settlements with Mr. Bath precluded any further action against them. [#131]. During that discussion, the court noted that one of those entities, Equifax, was not a party to the action, having not appeared as a defendant in the First Amended Class Complaint. That same day, this court denied Mr. Bath's motions [#91, #106], insofar as they sought to strike Experian's and Trans Union's Answers to the First Amended Class Complaint. But to the extent that Plaintiff moved for summary judgment against Experian and Trans Union, Judge Moore permitted those to proceed. [#142].

         Equifax and Wells Fargo have respectively moved to enforce settlement agreements with Mr. Bath. [#138; #145]. On March 21, 2019, Plaintiff filed an "Unopposed" Motion to Amend, seeking to docket a Second Amended Class Complaint. [#144]. But on March 21 and 25, American Express and LexisNexis advised the court through Notices that they did, in fact, oppose the Motion to Amend. [#150; #151]. American Express and LexisNexis each filed an Opposition to the Motion to Amend [#157; #158].

         During a second Status Conference held on April 24, 2019, this court declined to proceed with the scheduling for the case given the procedural history and the pending motions. [#165]. During that same conference, this court encouraged the Parties to minimize their filings so that this Recommendation could issue as to pending motions so that the Parties and the court could better understand and address the contours of the case. [Id.]. This court now turns to its Recommendation.

         ANALYSIS

         I. Motions to Dismiss

         A. Legal Standards

         1. Rule 8

         As mentioned above, "[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall, 935 F.2d at 1110 (citation omitted). But "[t]he broad reading of the plaintiffs complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id.

         Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint "must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought ...."Fed. R. Civ. P. 8(a). The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that "[e]ach allegation must be simple, concise, and direct." Read together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. A decision to dismiss a complaint pursuant to Rule 8 is within the trial court's sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).

         2. Rule 12(b)(6)

         To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a pleading 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 560(2007)). While allegations that are "so general that they encompass a wide swath of conduct, much of it innocent," will not be sufficient, Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citation and quotation omitted), the statement need only give fair notice of what the claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Though the court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff," Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)), a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Hall, 935 F.2d at 1110 (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         Hall instructs that the court should reasonably read the pro se litigant's pleadings to state "a valid claim on which the plaintiff could prevail...despite the plaintiffs failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. Notwithstanding this accommodation, the court's role is not to advocate for the pro se litigant. Id.

         B. American Express' Motion to Dismiss

         American Express moves to dismiss the First Amended Complaint against it pursuant to Rule 8 and 12(b)(6) of the Federal Rules of Civil Procedure. [#88]. Specifically, American Express argues that dismissal under Rule 8 is appropriate because Mr. Bath has failed to provide any factual support for its claims of violations of the FCRA, negligence, defamation and invasion of privacy against it. [Id. at 2]. American Express also argues that dismissal of the FCRA claim under Rule 12(b)(6) is appropriate because there is no private right of action for alleged violations of credit information furnisher's duties under the statute; that Plaintiff fails to state a claim for negligence or for invasion of privacy/false light. [Id. at 5]. It also argues that Plaintiff s state law claims of negligence, defamation and invasion of privacy are all preempted by the FCRA. [Id. at 6-7]. Mr. Bath did not substantively respond to the Motion to Dismiss, though he filed "Plaintiff Brian Bath Answer and ...


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