Bath v. American Express Co.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER

          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on nine pending motions filed by both Plaintiff Brian Bath ("Plaintiff or "Mr. Bath") and the various Defendants. The court considers the following motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated March 4, 2019 [#20], and the associated memoranda identified below:

(1) PayPal, Inc.'s Amended Motion to Dismiss ("PayPal's Amended Motion to Dismiss") [#56] which the was referred to the undersigned Magistrate Judge by the Memorandum dated March 11, 2019 [#57];

(2) LexisNexis Risk Solutions, Inc.'s Amended Motion to Dismiss Plaintiff's Complaint ("LexisNexis' Amended Motion to Dismiss") [#63], referred by the Memorandum dated March 14, 2019 [#67];

(3) Defendant American Express Company's Amended Motion to Dismiss Plaintiff's Complaint [#65] ("American Express' Amended Motion to Dismiss"), referred by the Memorandum dated March 14, 2019 [#66];

(4) Defendant TD Bank USA, N.A, 's Motion for Dismissal Under Rules l2(b)(4)-(6) [#68] ("TD Bank's Motion to Dismiss"), referred by the Memorandum dated March 18, 2019 [#69];

(5) Defendant Realpage Inc.'s Motion to Dismiss [#81] ("Realpage's Motion to Dismiss"), referred by the Memorandum dated April 2, 2019 [#82];

(6) Plaintiff Brian Bath's Motion for Appointment of Counsel [#83] ("Plaintiff's Motion to Appoint Counsel"), referred by the Memorandum dated April 9, 2019 [#84];

(7) Defendant First Premier Bank's Motion for Judgment on the Pleadings [#107] ("First Premier's 12(c) Motion"), referred by the Memorandum dated April 24, 2019 [#108];

(8) Plaintiff Brian Bath's Motion for Leave to Amend Original Complaint [#109] ("Plaintiffs Motion to Amend"), referred by the Memorandum dated April 30, 2019 [#110], and;

(9) Defendants American Express National Bank (misnamed as "American Express Company"); First Premier Bank; LexisNexis Risk Solutions Inc.; PayPal, Inc.; RealPage, Inc.; TD Bank USA, N.A. (misnamed as "TD Bank"); and Wells Fargo Bank, N.A's Joint Motion for Discovery-Management Order [#112] ("Motion for Discovery Management Order"), referred by the Memorandum dated May 3, 2019 [#113].

         Not all Motions have been folly briefed, but the court nonetheless finds it appropriate to proceed. D.C.COLOLCivR 7.1(d). For the reasons stated herein, it is respectfully RECOMMENDED that: LexisNexis' Motion to Dsmiss, American Express' Motion to Dsmiss, and First Premier's 12(c) Motion be GRANTED; that PayPal's Motion to Dismiss and TD Bank's Motion to Dismiss be GRANTED IN PART AND DENIED IN PART; and Plaintiffs Motion to Amend be DENIED. Additionally, it is ORDERED that that Plaintiffs Motion to Appoint Counsel is DENIED and the Defendants' Motion for Discovery Management Order is GRANTED and discovery in this matter is STAYED pending the presiding judge's, the Honorable Raymond P. Moore, ruling on this Recommendation and the currently outstanding motions.

         BACKGROUND

         Plaintiff Brian Bath originally filed this case in Denver District Court, and Defendant PayPal, Inc. ("PayPal") removed it to this court on March 1, 2019, invoking the court's diversity jurisdiction under 28 U.S.C. § 1332.^[1] [#1]. The operative Complaint [#4] identified several Defendants: American Express Company ("American Express"); Capital One; LexisNexis Risk Solutions, Inc. ("LexisNexis"); First Premier Bank; OneMain Financial Group ("OneMain"); RealPage d/b/a Leasing Desk ("RealPage"); PayPal; Synchrony Bank ("Synchrony"); Bank of America; Wells Fargo Bank, National Association ("Wells Fargo"); and TD Bank. [#4].^[2] Mr. Bath asserts claims for Fraud ("Count I"), Conversion ("Count II"), and Theft ("Count ID") relating to allegedly inaccurate credit records maintained by the three credit-reporting agency defendants: Experian credit file #0610-5540-48 ("the Experian File"); Trans Union credit file #310634414 ("the Trans Union File"), and; Equifax credit file #9003044461 ("the Equifax file"; collectively "Credit Files"). [Id. at ¶¶ H 21, 22]. Although Mr. Bath references sending dispute letters regarding these accounts, [id. at ¶¶ 15, 17, 19, 23, 24, 28, 30, 32, 36, 38, 40, 42], he does not appear to allege that the information contained in the Credit Files is inaccurate. Rather, Mr. Bath's claims appear to be based on the allegedly inappropriate queries of his Credit Files by the Defendants who are not credit reporting agencies. See generally [#4].

         On March 8, 2019, LexisNexis, PayPal, and American Express moved to dismiss Mr. Bath's claims against them, respectively. The presiding judge, the Honorable Raymond Moore, denied these motions without prejudice for failure to comply with his Practice Standards on March 8, 2019. [#49; #50; #51]. Then on March 11, 2019, PayPal filed an Amended Motion to Dismiss. [#56]. Two days later, LexisNexis and American Express filed their respective Amended Motions to Dismiss. [#63; #65]. Then on March 15, 2019, TD Bank filed its Motion to Dismiss [#68], and RealPage followed suit on April 1, 2019 [#81]. Finally, on April 23, 2019, First Premier Bank moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. [#107].

         Mr. Bath moved the court for appointment of counsel on April 8, 2019. [#83]. On April 29, 2019, Plaintiff moved for leave to file an Amended Complaint, to "correct the original complaint to sufficient plead facts," among other reasons. [#109 at 1]. Shortly thereafter, Defendants moved for a discovery management order, stating that Mr. Bath had begun propounding discovery improperly because the court had not yet held a Scheduling Conference pursuant to Rule 16(b) of the Federal Rules of Civil Procedure. [#112].

         The court now considers all pending motions in this case in this omnibus Recommendation and Order, beginning with Defendants' respective motions challenging the viability of the operative Complaint, then considering whether Mr. Bath should be permitted leave to amend, and finally turning to Mr. Bath's request for appointment of counsel.

         ANALYSIS

         I. Legal Standards

         A. Personal Jurisdiction

         "A federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (observing that without jurisdiction the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case). Though a motion to dismiss pursuant to Rule 12(b)(6) considers the sufficiency of the operative pleading and does not weigh the potential evidence that the parties might present in the case, see Pirraglia v. Novell, Inc., 339F.3d 1182, 1187 (10th Cir. 2003), Rule 12(b)(6) judgments are considered by the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") a dismissal on the merits. See Slocum v. Corp. Exp. U.S. Inc., 446 Fed.Appx. 957, 960 (10th Cir. 2011) (observing that a Rule 12(b)(6) dismissal is considered an adjudication on the merits since it requires an evaluation of the substance of a complaint). Accordingly, this court first considers whether Mr. Bath has established personal jurisdiction over RealPage.

         Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to challenge the court's exercise of personal jurisdiction. Fed. R Civ. P. 12(b)(2). Plaintiff bears the burden of demonstrating that the court has personal jurisdiction over the Defendants. See Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1069 (10th Cir. 2008). When, as here, the court decides a Rule 12(b)(2) motion to dismiss without holding an evidentiary hearing, "the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion." AST Sports Sci, Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008). "The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). In considering this question, the court must accept all well pleaded facts as true and must resolve any factual disputes in favor of the plaintiff. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).

         To establish jurisdiction over a non-resident defendant, a plaintiff must show that the exercise of jurisdiction is authorized under the relevant state long-arm statute and does not offend due process. Wenz, 55 F.3d at 1506 (10th Cir. 1995). Because the Colorado Supreme Court has determined that Colorado's long-arm statute, Colo. Rev. Stat. § 13-1-124(2018), is coextensive with due process requirements, Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270 (Colo. 2002), the inquiry is thus simplified into one basic question: whether the exercise of personal jurisdiction comports with the requirements of due process under the Fourteenth Amendment to the United States Constitution. AST Sports Sci, Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008).

         However, even if this test is met, a court must still consider whether "the exercise of personal jurisdiction over the defendant offends traditional notions of fair play and substantial justice." OMI Holdings, 149 F.3d at 1091. In this inquiry the court considers: (1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiffs interest in receiving convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental social policies. Id. at 1095.

         Generally, a corporation is subject to general jurisdiction in the place of incorporation and principal place of business. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Though those loci are not the only forums where a corporation can be held to be subject to personal jurisdiction, it is not enough that a corporation engaged in a substantial, continuous or systematic course of business. Rather, the inquiry is whether a foreign corporation's "affiliations with the State are 'so continuous and systematic' as to render it essentially at home in the forum State." Id. (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

         As to specific jurisdiction, this court looks to whether its contacts with this forum associated with the action at hand is sufficient for it to be haled into court in this District: "(a) whether the plaintiff has shown that the defendant has minimum contacts with the forum state; and, if so, (b) whether the defendant has presented a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Old Republic Ins. Co. v. Cont'l Motors, Inc., 877 F.3d 895, 904 (10th Cir. 2017).

         B. Rule 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure

         A Rule 12(b)(4) motion allows a defendant to challenge the form or content of a summons, while a Rule 12(b)(5) motion challenges the mode or lack of delivery of a summons. Gross v. Taylor, No. 05-CV-243-J, 2006 WL 8435510, at *2& n.7 (D. Wyo. Apr. 26, 2006). Rule 4(a) and 4(b) govern the contents of a summons, and indicate that the Clerk of the Court must sign, seal, and issue it to the plaintiff for service on the defendant. Fed.R.Civ.P. 4(a), (b). "Effectuation of service is a precondition to suit[.]" Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Without proof of service, the Court lacks personal jurisdiction over the Defendant. Oklahoma Radio Associates v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992). In opposing a motion to dismiss for insufficient service of process, "plaintiff bears the burden of making a prima facie case that he has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant." Allen v. United Properties & Const., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D.Colo. Sept. 3, 2008) (quoting Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D.Kan. 2008). In removed actions, federal courts look to the law of the forum state to determine whether service of process was perfected prior to removal. See Wallace V. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010). Such a motion "differ[s] from the other motions permitted by Rule 12(b) in that [it] offer[s] the district court a course of action-quashing the process without dismissing the action-other than simply dismissing the case when the defendant's defense or objection is sustained." 5B C. Wright & A. Miller, Federal Practice & Procedure § 1354, at 346 (3d ed. 2004). Indeed, even without a showing of good cause, the court retains broad discretion to extend the time for service even when the plaintiff has not shown good cause. Fed.R.Civ.P. 5(m); Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995).

         C. Rule 8 of the Federal Rules of Civil Procedure

         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).

         B. 12(b)(6) of the Federal Rules of Civil Procedure

         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)). 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), and even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." RE/MAX, LLC v. Quicken Loans Inc., 295 F.Supp.3d 1163, 1168 (D. Colo. 2018) (citations and quotations omitted). In this analysis, 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)), but even so 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).

         C. Rule 12(c) of the Federal Rules of Civil Procedure

         Amotion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) may be filed only "[a]fter the pleadings are closed." Fed.R.Civ.P. 12(c). "Pleadings are closed within the meaning of Rule 12(c) if no counter or cross claims are at issue when a complaint and an answer have been filed." Maniaci v. Georgetown Univ., 510F.Supp.2d 50, 6O(D.D.C. 2007).

         A motion under Rule 12(c) is evaluated under the same standard applicable to a Rule 12(b)(6) motion to dismiss. See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009). Accordingly, the factual record in conjunction with a motion for judgment on the pleadings under Rule 12(c) is the same as that under Rule 12(b). United States v. Wahdan, 325 F.Supp.3d 1136, 1138 (D. Colo. 2018); XY, LLC v. Trans Ova Genetics, LC, 333 F.Supp.3d 1097, 1101 (D. Colo. 2018). The Court accepts all well-pleaded allegations in a complaint as true and views those allegations in the light most favorable to the nonmoving party. Wahdan, 325 F.Supp.3d at 1138.

         But a court should not grant a Rule 12(c) motion unless "the moving party clearly establishes that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law." Ciber, Inc. v. ACE Am. Ins. Co., 261 F.Supp.3d 1119, 1125 (D. Colo. 2017) (quoting Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). A motion for a judgment on the pleadings "only has utility when all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court." 5C Charles Alan Wright et al., Federal Practice & Procedure § 1367 (3d ed., Apr. 2019 update).

         D. Pro Se Litigants

         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. Rather, a 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.

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