1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN BROADDUS, Case No.: 23-cv-1867-DMS-DEB

12 Plaintiff,

ORDER GRANTING DEFENDANTS’

13 v. MOTION TO DISMISS 14 TRANS UNION LLC; EQUIFAX

INFORMATION SERVICES, LLC; AND

15

EXPERIAN INFORMATION

16 SOLUTIONS, INC., 17 Defendants. 18 19 Pending before the Court is Defendants Trans Union LLC (“Trans Union”) and 20 Experian Information Solutions, Inc.’s (“Experian”) joint motion to dismiss Plaintiff’s 21 Second Amended Complaint. (Defendants’ Motion to Dismiss, (“Defs.’ Mot.”), ECF No. 22 25.) Plaintiff, proceeding pro se, did not file a response in opposition.1 Instead, Plaintiff 23 filed a Third Amended Complaint, (ECF No. 26), and a Fourth Amended Complaint 24

25 26 1 Civil Local Rule 7.1(f)(3)(c) states that if an opposing party fails to file a response in opposition to a motion, that failure may constitute consent to the granting of a motion. A district court may grant an 27 unopposed motion pursuant to a local rule which permits as much. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). The Court declines to grant Defendants’ motion on procedural grounds and addresses the 28 1 without leave from the Court (Plaintiff’s Fourth Amended Complaint, ECF No. 28.) At 2 Defendants’ request and for efficiency purposes, the Court accepts Plaintiff’s Third and 3 Fourth Amended Complaints as filed and construes Defendants’ motion to dismiss as 4 directed towards the Fourth Amended Complaint. (ECF No. 29.) For the following 5 reasons, Defendants’ motion to dismiss is granted. 6 I. BACKGROUND 7 On August 11, 2023, Plaintiff sued Defendants Experian, Trans Union, and Equifax 8 in San Diego County Superior Court. On October 12, 2023, Defendants removed the case 9 to federal court. Plaintiff alleges Defendants violated the Fair Credit Reporting Act 10 (“FCRA”), 15 U.S.C. §§ 1681 et seq., by improperly reporting accounts and bankruptcies 11 on his credit report that were the result of identity theft committed by his ex-wife. Plaintiff 12 contends this inaccurate reporting significantly damaged his credit score and seeks $5 13 million in “consequential” damages. (First Amended Complaint at 8, ECF No. 17.) 14 On June 26, 2024, the Court granted Defendants’ motion to dismiss Plaintiff’s First 15 Amended Complaint with leave to amend for failure to state a claim upon which relief can 16 be granted under Fed. R. Civ. P. 12(b)(6). That same day, Plaintiff filed a Second Amended 17 Complaint, (ECF No. 24.) alleging violation of 15 U.S.C. § 1681c-2. On July 10, 2024, 18 Defendants filed a joint motion to dismiss Plaintiff’s Second Amended Complaint. (ECF 19 No. 25.) As noted, Plaintiff thereafter filed a Third Amended Complaint and a Fourth 20 Amended Complaint (mistakenly titled “Fifth Amended Complaint”) without leave of 21 Court. The Court now addresses Defendants’ motion to dismiss as against Plaintiff’s 22 Fourth Amended Complaint. 23 II. LEGAL STANDARD 24 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 25 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 26 Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) “tests the legal 27 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive 28 a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, 1 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 2 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 3 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 4 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 5 “Determining whether a complaint states a plausible claim for relief will . . . be a context- 6 specific task that requires the reviewing court to draw on its judicial experience and 7 common sense.” Id. at 679. “Factual allegations must be enough to raise a right to relief 8 above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff “ha[s] not nudged 9 [his] claims across the line from conceivable to plausible,” the complaint “must be 10 dismissed.” Id. at 570. 11 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 12 “accept factual allegations in the complaint as true and construe the pleadings in the light 13 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 14 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true 15 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 16 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 17 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 18 When a court grants a motion to dismiss a complaint, it must then decide whether to 19 grant leave to amend. Leave to amend “shall be freely given when justice so requires,” 20 Fed. R. Civ. P. 15(a), and “this policy is to be applied with extreme liberality.” Morongo 21 Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Dismissal without 22 leave to amend is proper only if it is clear that “the complaint could not be saved by any 23 amendment,” Intri-Plex Techs. v. Crest Grp., Inc., 499 F.3d 1048, 1056 (9th Cir. 2007), or 24 “if the plaintiff had several opportunities to amend its complaint and repeatedly failed to 25 cure deficiencies.” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). 26 “A district court’s discretion to deny leave to amend is ‘particularly broad’ where the 27 plaintiff has previously amended.” Salameh v. Tarsadia Hotel, 726 F. 3d 1124, 1133 (9th 28 Cir. 2013). 1 / / / 2 / / / 3

III. DISCUSSION

4 A. Fair Credit Reporting Act Claims 5 Plaintiff’s Fourth Amended Complaint alleges violations under the FCRA. Plaintiff 6 alleges Defendant Trans Union “willfully or negligently failed to comply with its 7 responsibilities under the FCRA found at 15 U.S.C. § 1681s-2(b) by failing to follow 8 reasonable procedures to assure maximum possible accuracy of the information in 9 plaintiffs’ credit reports, and failed to comply with its reinvestigation responsibilities found 10 at 15 U.S.C. § 1681i.” (FAC at 4-5.) The Fourth Amended Complaint alleges violations 11 of 15 U.S.C. § 1681i against all Defendants, violation of § 1681s-2(b) against Defendant 12 Trans Union, and violation of § 1681(e)(b) against Defendant Experian. 13 The Court notes that § 1681i pertains to proper procedures for reinvestigation efforts, 14 which is not at issue here. Plaintiff alleges Defendants failed to engage in an initial 15 investigation, thus Plaintiff fails to state a claim under §1681i. Additionally, § 1681s-2 16 applies to “furnishers of information to consumer reporting agencies” not consumer 17 reporting agencies themselves. Because Plaintiff is suing Defendant Trans Union as a 18 consumer reporting agency (“CRA”), Plaintiff fails to allege a proper cause of action under 19 § 1681s-2(b). However, construing Plaintiff’s complaint liberally as the Court is required 20 to do, the Court again finds Plaintiff intends to plead a claim under 15 U.S.C. § 1681c-2 21 and § 1681(e) against Defendants. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A 22 document filed pro se is ‘to be liberally construed.’”) (quoting Estelle v. Gamble, 429 U.S. 23 97, 106 (1976)). As the Court held in its prior order, 15 U.S.C. § 1681c-2 requires that a 24 CRA block the reporting of information in a consumer’s file that the consumer identifies 25 as resulting from identity theft “after … receipt” from the consumer of: (1) appropriate 26 proof the consumer’s identity, (2) a copy of the identity theft report, (3) the identification 27 of the offending information by the consumer, and (4) a statement by the consumer that the 28 reported information is not theirs. And 15 U.S.C. § 1681(e) requires CRAs that prepare 1 consumer reports to “follow reasonable procedures to assure maximum possible accuracy 2 of the information” before reporting such information. 3 To bring a claim under 15 U.S.C. § 1681c-2, Plaintiff must first allege that he 4 satisfied the four statutory requirements enumerated above to trigger Defendants’ duty to 5 block inaccurate information. In an attempt to satisfy these requirements, Plaintiff attached 6 four exhibits labeled as the four statutory requirements. First, Plaintiff attached copies of 7 his birth certificate, social security card, and driver’s license as appropriate proof of 8 identity.2 (FAC at 8-11.) Second, Plaintiff attached a copy of the police report he filed 9 with the San Diego Police Department as a copy of an identity theft report. (Id. at 12-16.) 10 Third, Plaintiff filed a copy of his credit report. (Id. at 18-36.) Fourth, Plaintiff filed a 11 letter to an unknown recipient stating that his credit report is inaccurate as a result of 12 identity theft committed by his ex-wife. (Id. at 37.) Defendants argue that even if the 13 Court finds that Plaintiff has provided the necessary information to satisfy the four statutory 14 requirements, § 1681c-2 requires Plaintiff to properly allege that he sent these materials to 15 Defendants. The Court agrees. Section 1681c-2(a) requires a CRA to block inaccurate 16 information only after “receipt by such agency” of such information. Plaintiff again fails 17 to allege that he sent this information to Defendants, detailed the specific inaccurate 18 information to be blocked, and requested Defendants to block such information. 19 Accordingly, Plaintiff has failed to state a claim under the FCRA § 1681c-2(a). 20 To bring a claim under § 1681(e)(b), Plaintiff must make a prima facie showing that 21 a CRA reported inaccurate information. Shaw v. Experian Info. Sols., Inc., 891 F.3d 749, 22 756 (9th Cir. 2018). To make a prima facie showing under § 1681(e)(b), “a consumer must 23 present evidence tending to show that a CRA prepared a report containing inaccurate 24 25 2 Although Plaintiff did not request the documents be sealed, the Court finds compelling reasons to sua 26 sponte seal Plaintiff’s complaint as it contains Plaintiff’s private information and is otherwise available on the public docket and could compromise Plaintiff’s personal security. See Kamakana v. City & Cnty. 27 of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (holding that a district court's decision to seal a judicial record must be based on a compelling reason supported by specific factual findings) (citations 28 1 information.” Id. (quoting Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 2 (9th Cir. 1995)). Plaintiff’s Fourth Amended Complaint alleges in conclusory terms that 3 Defendants “willfully or negligently failed to comply with its responsibilities under 4 § 1681(e)(b) by failing to follow reasonable procedures to assure maximum possible 5 accuracy of the information in plaintiff[’s] credit report.” (Id. at 4.) Again, Plaintiff fails 6 to allege sufficient facts that show Defendants prepared a report containing inaccurate 7 information. In the factual section of the complaint, Plaintiff alleges that he “dispute[s] the 8 false derogatory or result of identity theft, information pertaining to five (5) bankruptcies 9 and fraudulently accessed credit card.” (FAC at 2.) However, those allegations are 10 conclusory and need not be accepted as true. See McGlinchy v. Shell Chem. Co., 845 F.2d 11 802, 210 (9th Cir. 1988) (“[C]onclusory allegations without more are insufficient to defeat 12 a motion to dismiss for failure to state a claim.”) Because the Fourth Amended Complaint 13 fails to allege sufficient facts to support the allegation that Defendants reported inaccurate 14 information, the Court need not address the reasonableness of Defendants investigations 15 and procedures. See Doster v. Experian Info. Sols., Inc., No. 16-CV-04629-LHK, 2017 16 WL 264401, at *3 (N.D. Cal. Jan. 20, 2017) (“Thus, even if a ... CRA fails to conduct a 17 reasonable investigation or otherwise fails to fulfill its obligations under the FCRA, if a 18 plaintiff cannot establish that a credit report contained an actual inaccuracy, then the 19 plaintiff's claims fail as a matter of law.”) Accordingly, the Court GRANTS Defendants’ 20 motion to dismiss Plaintiff’s claim under § 1681(e)(b). 21 B. Leave to Amend 22 “A district court may deny a plaintiff leave to amend if it determines that…the 23 plaintiff had several opportunities to amend its complaint and repeatedly failed to cure 24 deficiencies.” Telesaurus VPC, LLC, 623 F.3d at 1003. In its prior order, the Court 25 provided Plaintiff leave to amend his complaint to cure the deficiencies in his First 26 Amended Complaint. Plaintiff subsequently filed three additional amended complaints 27 without leave of Court. Notably, none of the amended complaints cure the deficiencies 28 noted by the Court in its prior order. Plaintiff’s amended complaints all fail to state a claim 1 |}under the FCRA because they fail to allege that Plaintiff properly notified Defendants of 2 ||the allegedly inaccurate information in accordance with the FCRA’s requirements. 3 ||“[W]here the plaintiff has previously been granted leave to amend and has subsequently 4 || failed to add the requisite particularity to its claims, the district court's discretion to deny 5 || leave to amend is particularly broad.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 6 1007 (9th Cir. 2009). Accordingly, the Court DISMISSES Plaintiff's Fourth 7 || Amended Complaint without leave to amend. 8 IV. CONCLUSION AND ORDER 9 Based on the foregoing, the Court GRANTS Defendants’ motion to dismiss. Plaintiffs 10 claims are dismissed without leave to amend. 11 IT IS SO ORDERED. 2» 12 ||Dated: August 21, 2024 prn Yn. IL 13 Hon. Dana M. Sabraw, Chief Judge United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28