United States District Court, D. Colorado
BRIAN BATH, on behalf of himself and all other similarly situated individuals; Plaintiff,
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
Y. WANG, MAGISTRATE JUDGE
matter comes before the court on several pending motions by
both Plaintiff Brian Bath ("Plaintiff or "Mr.
Bath") and the various Defendants:
Motion of Defendant American Express National Bank
("American Express") to Dismiss Plaintiffs Amended
Complaint ("American Express' Motion to
Dismiss") [#88, filed February 19, 2019];
LexisNexis Risk Solutions, Inc.'s Motion to Dismiss
Plaintiffs First Amended Class Action Complaint
("LexisNexis' Motion to Dismiss") [#89, filed
February 19, 2019];
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 ("Plaintiffs First Motion for Summary
Judgment") [#91, filed February 19, 2019];
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];
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,
Defendant Equifax Information Services LLC's Motion to
Enforce the Settlement Agreement ("Equifax's Motion
to Enforce") [#138, filed March 19, 2019];
Plaintiff's Unopposed Motion to Amend
"Compaint" ("Plaintiffs Motion to Amend")
[#144, filed March 21, 2019];
Well Fargo Bank, N.A.'s Motion to Enforce Settlement
("Wells Fargo's Motion to Enforce") [#145,
filed March 21, 2019]; and
Defendants' Joint Motion for Protective Order [# 171,
filed May 7, 2019].
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.
Brian Bath initiated a Class Action Complaint against various
defendants, 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].
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].
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
"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.
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].
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].
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].
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
Motions to Dismiss
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
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).
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).
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.
American Express' Motion to Dismiss
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 ...