Bjornson v. USAA Credit Card

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KEVIN SCOTT BJORNSON, CASE NO. 3:20-cv-05449 RJB 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. SECOND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT 13 EQUIFAX INC, USAA CREDIT CARD, and BANK OF AMERICA, 14 Defendants. 15 16 This matter comes before the Court on Plaintiff’s Second Motion for Leave of Court to 17 Amend the Complaint (Dkt. 112). The Court has considered the pleadings filed in support of and 18 in opposition to the motions and the file herein. 19 Plaintiff’s lengthy proposed amended complaint is difficult to follow and is not the “short 20 and plain statement” of his claims required by Federal Rule of Civil Procedure 8(a)(2), and he, 21 after numerous opportunities, still fails in large part to make a plausible claim for relief. 22 Plaintiff’s motion should be denied, in part. 23

24 1 I. FACTS AND PROCEDURAL HISTORY 2 A. FACTS 3 Plaintiff, proceeding pro se, alleges that Defendants Equifax, USAA, and Bank of 4 America caused the significant decline of his credit score.1 Dkt. 112. He claims that he notified

5 Equifax and the banks of fraudulent charges, but they failed to make proper adjustments to his 6 financial record, which lowered his credit score and caused creditors to deny him personal and 7 business lines of credit. Dkt. 112-3 at 4. 8 B. RELEVANT PROCEDURAL HISTORY AND PENDING MOTION 9 Plaintiff filed his original complaint on June 17, 2020. Dkt. 5. Plaintiff previously 10 moved for leave to amend his complaint, which the Court denied. Dkt. 108. In the same order, 11 the Court dismissed Plaintiff’s following claims with prejudice: 15 U.S.C. § 1601, et. seq. (Fair 12 Credit Billing Act); 15 U.S.C. § 1681s-2(a) (Fair Credit Reporting Act); 16 C.F.R. § 660.4 (the 13 Furnisher Rule); and 15 U.S.C. § 1692, et. seq., (Fair Debt Collection Practices Act). Id. 14 Plaintiff now moves for the second time for leave to amend his complaint. Dkt. 112.

15 Plaintiff’s proposed amended complaint appears to reallege the claims previously dismissed with 16 prejudice. Dkt. 112-3 at 2–3. Plaintiff also asserts claims not previously dismissed with 17 prejudice, including claims pursuant to the Fair Credit Reporting Act (FRCA), most notably § 18 1681s-2(b); the Equal Credit Opportunity Act (ECOA); the Truth in Lending Act, 15 U.S.C. § 19 1666; and the Electronic Fund Transfers Act, 12 C.F.R. § 1005. Id. at 2–5. 20 II. DISCUSSION 21 Fed. R. Civ. P. 15(a)(2) provides that “a party may amend its pleading only with the 22 23 1 Since filing his original complaint, Defendants Discover Bank and First National Bank of Omaha were dismissed 24 by agreement of the Parties. 1 opposing party’s written consent or the court’s leave. The court should freely give leave when 2 justice so requires.” “A motion to amend under Rule 15(a)(2) ‘generally shall be denied only 3 upon a showing of bad faith, undue delay, futility, or undue prejudice to the opposing party.” 4 Chudacoff v. Univ. Medical Ctr. of. S. Nev., 649 F.3d 1143, 1152 (9th Cir. 2011). “An

5 amendment is futile when ‘no set of facts can be proved under the amendment to the pleadings 6 that would constitute a valid and sufficient claim or defense.’” Missouri ex rel. Koster v. Harris, 7 847 F.3d 646, 656 (9th Cir. 2017) (quoting Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th 8 Cir. 1988)). 9 A. CLAIMS PREVIOUSLY DISMISSED WITH PREJUDICE 10 Plaintiff appears to seek to reallege claims pursuant to 15 U.S.C. § 1601, et. seq. (Fair 11 Credit Billing Act); 15 U.S.C. § 1681s-2(a) (Fair Credit Reporting Act); 16 C.F.R. § 660.4 (the 12 “Furnisher Rule”); and 15 U.S.C. § 1692, et. seq., (Fair Debt Collection Practices Act). Plaintiff 13 may not bring claims previously dismissed with prejudice. Amendment, therefore, would be 14 futile and Plaintiff’s motion to amend pursuant to those claims should be denied.

15 B. FAIR CREDIT REPORTING ACT 16 Plaintiff only discusses three claims with any specificity in his proposed amended 17 complaint, all pursuant to the FCRA. He primarily asserts that Defendants violated 15 U.S.C. § 18 1681s-2(b), which requires furnishers of information to investigate disputed consumer 19 information upon notice of dispute. Dkt. 112-3 at 3. He also alleges that Defendants violated 15 20 U.S.C. § 1681e(b) and 15 U.S.C. § 1681c-1(b). Id. at 3–4. 21 Plaintiff alleges that Defendants, including Defendant USAA, “failed to properly respond 22 to the disputes in accordance with 15 U.S.C. § 1681s-2(b).” Dkt. 112 at 2. He continues, “[b]y 23 clearly being notified and having knowledge of both the current and prior disputes which they

24 1 failed to update on the plaintiffs [sic] consumer credit report in violation of 15 U.S.C.A. 1681- 2 1681X . . . .” Id. Plaintiff, however, included evidence in his original complaint that USAA 3 deleted a disputed item from his credit report, which implies some level of investigation and 4 response. Dkt. 10 at 75 (“INVESTIGATION RESULTS . . . USAA SAVINGS BANK: In

5 response to your dispute, this item was DELETED from your credit report.”). Although he has 6 had numerous opportunities, Plaintiff’s proposed amended complaint fails to plausibly allege that 7 USAA did not reasonably investigate his disputed information. Amendment appears futile and 8 Plaintiff’s motion for leave to amend pursuant to 15 U.S.C. § 1681s-2(b) should be denied, with 9 prejudice. 10 Plaintiff additionally seeks to include claims pursuant to 15 U.S.C. § 1681c-1(b) and 15 11 U.S.C. § 1681e(b). Section 1681c-1(b) requires a consumer reporting agency put a fraud alert on 12 upon receipt of proof of identity theft. Section 1681e(b) requires a consumer reporting agency to 13 follow reasonable procedures to ensure accurate information. Plaintiff successfully alleges that 14 Equifax failed to put a fraud alert on his account after receiving proof of identity theft. Dkt. 112-

15 3 at 4–5. He does not, however, allege that Equifax, or any of the Defendants, failed to use 16 adequate procedures to ensure accurate information. Plaintiff has successfully alleged a claim 17 pursuant to 15 U.S.C. § 1681c-1(b) against Equifax only. 18 C. EQUAL CREDIT OPPORTUNITY ACT 19 The ECOA makes it “unlawful for any creditor to discriminate against any applicant . . . 20 on the basis of race, color, religion, national origin, sex or marital status, or age.” United States 21 v. Union Auto Sales, Inc., 490 F. App’x 847, 848 (9th Cir. 2012) (citing 15 U.S.C. § 1691(a)). 22 Plaintiff does not allege that he was discriminated against on any of those grounds. The 23 Court previously dismissed Plaintiff’s ECOA claim without prejudice because, although he had

24 1 not pled such facts, it was not clear that he could not. Plaintiff has now had three opportunities 2 to inform the Court of any such discrimination, and amendment now appears futile. Plaintiff’s 3 motion pursuant to the ECOA should be denied, with prejudice. 4 D. TRUTH IN LENDING ACT

5 Plaintiff seeks to amend his complaint to allege that Defendants violated the Truth in 6 Lending Act, 15 U.S.C. § 1666. Dkt. 112–13 at 5. 15 U.S.C. § 1666, is governed by a one-year 7 statute of limitations. See 15 U.S.C. § 1640. As discussed in Order on Motion to Dismiss and 8 Motion for Leave to Amend Complaint (Dkt. 108 at 5–6), Plaintiff’s claim is barred by the 9 statute of limitations. Plaintiff’s motion pursuant to the Truth in Lending Act is futile and should 10 be denied, with prejudice. 11 E. ELECTRONIC FUND TRANSFERS ACT 12 Finally, Plaintiff moves to amend his complaint to state a claim pursuant to 1005 EFT 13 Regulation E, 12 C.F.R. § 1005. Dkt. 112-3 at 9. “The primary objective of the act and this part 14 is the protection of individual consumers engaging in electronic fund transfers and remittance

15 transfers.” 12 C.F.R. § 1005.1. 16 Plaintiff alleges that he notified “each of the creditors . . . of potential fraudulent 17 electronic funds transfers which were unauthorized by Plaintiff.” Dkt. 112-3 at 10. Since filing 18 his original complaint, Plaintiff has filed hundreds of pages of evidence, and the proposed 19 amended complaint alone is 211 pages including attachments. The only supporting evidence 20 offered for this claim, however, is a Payment Dispute Form claiming that he was fraudulently 21 charged $6,347.48 on October 1, 2018. Dkt. 112-1 at 91. The form describes the error as, 22 “USAA alleges that I made payments on charges which I disputed as fraudulent, which I did not 23 make. However [sic] payments Aug-Sept were authorized.” Id. It is not clear from this form

24 1 whether Plaintiff filed it anywhere, what the disputed charge is, or what merchant made the 2 charge. Plaintiff has had numerous opportunities to make clear the basic facts of his claim, 3 including what payments he disputes, how he notified the Defendants of the errors, and how they 4 failed to respond accordingly. His failure to do so demonstrates that amendment would be futile.

5 Plaintiff’s motion for leave pursuant to the EFTA should be denied, with prejudice. 6 III. ORDER 7 Therefore, it is hereby ORDERED that: 8 • Plaintiff’s Motion for Leave of Court to Amend the Complaint (Dkt. 112) should 9 be DENIED with prejudice as to all claims and Defendants EXCEPT the claim 10 under 15 U.S.C. § 1681c-1(b) against Defendant Equifax, and; 11 • All Defendants except Equifax are DISMISSED 12 • Within 14 days of this date, Plaintiff should submit a clean copy of the complaint 13 against Equifax only, in short and plain statements without attachments. 14 The Clerk is directed to send uncertified copies of this Order to all counsel of record and

15 to any party appearing pro se at said party’s last known address. 16 Dated this 1st day of December, 2020. A 17

18 ROBERT J. BRYAN 19 United States District Judge

20 21 22 23 24