Doak v. Capital One, N.A.

• Court: District Court, N.D. California
• Decided: September 24, 2019
• Docket: 5:18-cv-07102
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 DANIEL DOAK, on behalf of himself and 8 all others similarly situated, Case No. 5:18-cv-07102-EJD

9 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITH LEAVE 10 v. TO AMEND

11 CAPITAL ONE, N.A., and DOES 1-10 Re: Dkt. No. 14 inclusive 12 Defendant. 13 Plaintiff Daniel Doak filed this lawsuit on behalf of himself and a putative class against 14 Defendant Capital One Bank (USA) N.A.1 for alleged violations of the Fair Credit Reporting Act 15 (“FCRA”), 15 U.S.C. § 1681 et seq. Compl. ¶¶ 1, 2, 17. Plaintiff seeks statutory damages 16 pursuant to 15 U.S.C. § 1692k(a)(2)(A) and costs of litigation and reasonable attorneys’ fees 17 pursuant to 15 U.S.C. §§ 1681n(a)(3) and 1681o(a)(2). Id. ¶ 41. Capital One moves to dismiss 18 Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and 19 under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Def.’s Mot. 20 to Dismiss at 1. For the reasons below, Defendant’s motion is GRANTED. 21 I. BACKGROUND 22 On November 8, 2016, Plaintiff filed for bankruptcy under Chapter 7 of the United States 23 Bankruptcy Code in the United States Bankruptcy Court of the Northern District of California 24 25 26

27 1 Capital One Bank (USA) N.A. was “erroneously sued as Capital One, N.A.” Def.’s Mot. to Dismiss at 1 n.1. 1 (“Bankruptcy Court”). See Def.’s Request for Judicial Notice (“RJN”) (Dkt. No. 14-2), Ex. A2; 2 see also Compl. ¶ 12. When Plaintiff filed his Bankruptcy Petition, he had a consumer debt with 3 Capital One. Compl. ¶ 13. Capital One allegedly received notice of Plaintiff’s Bankruptcy 4 Petition that month. Id. ¶ 14. 5 On November 29, 2016, Capital One accessed Plaintiff’s consumer credit report through 6 Equifax, a credit reporting agency (“CRA”). Id. On December 9, 2016, Capital One accessed 7 Plaintiff’s credit report for a second time through Trans Union, another CRA. Id. ¶ 15. On both 8 occasions, Capital One allegedly “used false pretenses, namely the representation it intended to 9 use Plaintiff’s consumer report for a permissible account review or collection purpose, when it had 10 no such permissible purpose(s), in order to obtain Plaintiff’s private personal and financial 11 information for the illegal purpose of attempting to collect on the subject Debt.” Id. ¶ 37. Plaintiff 12 claims that Capital One committed “knowing and willful violations of the FCRA” by accessing 13 Plaintiff’s consumer credit report with “actual knowledge” that it lacked a permissible purpose. 14 Id. ¶¶ 34-36. 15 Plaintiff alleges that Capital One conducted these two credit checks after the Bankruptcy 16 Court entered its Bankruptcy Discharge. Id. ¶¶ 34-35. Capital One, however, accessed Plaintiff’s 17 consumer credit report before the Bankruptcy Court entered its Bankruptcy Discharge. See RJN, 18 Ex. B. Plaintiff corrected this error in his Opposition to Capital One’s Motion to Dismiss, stating 19 that “although the discharge was granted, at the time of the credit pull, the discharge had not yet 20 been granted and any reference to these credit pulls being post-discharge was in error.” Pl.’s 21 Opp’n at 6-7 n.7. The court appreciates Plaintiff’s candor informing the court of the erroneous 22

23 2 The court GRANTS Defendant’s Request for Judicial Notice (Dkt. No. 14-2). Plaintiff’s 24 Voluntary Petition for Individuals Filing for Bankruptcy (“Bankruptcy Petition”) (Ex. A) and the Discharge of Debtor and Final Decree (“Bankruptcy Discharge”) (Ex. B) are “matters of public 25 record” that are “not subject to reasonable dispute” under Fed. R. Evid. 201(b). See Fed R. Evid. 201(b); see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (citation 26 and quotations omitted). But, the court DENIES Defendant’s Supplemental Request for Judicial Notice (Dkt. No. 22) (“Supplemental RJN”) because Plaintiff “did not refer to this document [Ex. 27 C], and the document did not form the basis of any claims” in his complaint. See Khoja, 899 F.3d at 1005. 1 references to “post-discharge” credit pulls. See id. The court, thus, will rule on Capital One’s 2 Motion to Dismiss as if Plaintiff had pled the credit pulls occurred prior to the Bankruptcy Court’s 3 entering the Bankruptcy Discharge. 4 In November 2018, Plaintiff filed this action seeking class certification, actual damages, 5 statutory damages, injunctive relief, costs of litigation, and reasonable attorneys’ fees for Capital 6 One’s alleged willful violations of the FCRA, and for Capital One causing him “mental anguish 7 and emotional distress.” Compl. ¶¶ 23, 39. 8 II. LEGAL STANDARDS 9 A. Federal Rule of Civil Procedure 12(b)(1) 10 Federal Rule of Civil Procedure 12(b)(1) provides that a party may seek dismissal of a suit 11 for lack of subject matter jurisdiction. A Rule 12(b)(1) motion challenges a court’s subject matter 12 jurisdiction and may be either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 13 1039 (9th Cir. 2004) (citation omitted); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) 14 (citation omitted). When a defendant brings a facial challenge, as in this case, defendant claims 15 that the allegations in a complaint are “insufficient on their face to invoke federal jurisdiction.” 16 Safe Air, 373 F.3d at 1039; see also Def.’s Mot. to Dismiss at 4. “In resolving a facial attack, the 17 court assumes that the allegations are true and draws all reasonable inferences in the plaintiff’s 18 favor.” Robertson v. Republic of Nicar., 2017 WL 2730177, at *2 (N.D. Cal. June 26, 2017) 19 (citing Wolfe v. Strankman, 392 F.3d at 362). 20 B. Federal Rule of Civil Procedure 12(b)(6) 21 Federal Rule of Civil Procedure 12(b)(6) provides that a party may seek dismissal of a suit 22 for failure to state a claim upon which relief can be granted. A court must “take all allegations of 23 material fact as true and construe them in the light most favorable to the nonmoving party.” Parks 24 Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted). A court 25 may dismiss a complaint on a Rule 12(b)(6) motion “based on the lack of a cognizable legal 26 theory or the absence of sufficient facts alleged under a cognizable legal theory.” Godecke v. 27 Kinetic Concepts, Inc., 2019 WL 4230098, at *3 (9th Cir. Sept. 6, 2019) (quoting Balistreri v. 1 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). Defeating a motion to dismiss requires 2 that the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief 3 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 4 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff 5 pleads factual content that allows the court to draw the reasonable inference that the defendant is 6 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 7 In reviewing a Rule 12(b)(6) motion, the court may “consider[ ]” “[d]ocuments whose 8 contents are alleged in a complaint and whose authenticity no party questions, but which are not 9 physically attached to the pleading.” Tunac v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 10 2018) (citing Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)), overruled on other grounds by 11 Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (quotations omitted). However, 12 “the mere mention of the existence of a document is insufficient to incorporate the contents of a 13 document.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (citation omitted). 14 To incorporate a document that is referenced, but not attached to a complaint, the complaint must 15 describe the document’s “contents,” and the document must be “integral” to the complaint. 16 Tunac, 897 F.3d at 1207 n.8 (citing Coto Settlement, 593 F.3d at 1038). 17 C. FCRA 18 The purpose of the FCRA is “to ensure fair and accurate credit reporting, promote 19 efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 20 551 U.S. 47, 52 (2007). Plaintiff alleges that Capital One violated Section 1681b(f) of the FCRA, 21 which “prohibits an entity from obtaining a consumer credit report for any purpose other than 22 those enumerated in section 1681b.” Adler v. DirecTV, LLC, 2018 WL 6981838, at *7 (C.D. Cal. 23 Oct. 24, 2018) (citing 15 U.S.C. § 1681b(f)(1)); see also Compl. ¶ 29-31. Section 1681b(a)(3) 24 allows a credit reporting agency to provide a consumer credit report to a person whom the agency 25 “has reason to believe” satisfies at least one of seven criteria. 15 U.S.C. § 1681b(a)(3). In 26 relevant part, Plaintiff cites the following statutory language in his complaint:

27 (a) In General. – *** [A] consumer reporting agency may furnish a consumer report 1 under the following circumstances and no other: *** 2 (3) To a person which it has reason to believe – (A) intends to use the information in connection with a credit transaction 3 involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, 4 the consumer; *** (F) otherwise has a legitimate business need for the information 5 (ii) to review an account to determine whether the consumer 6 continues to meet the terms of the account.

7 Compl. ¶ 31 (citing 15 U.S.C. § 1681b(a)(3)). 8 Section 1681n imposes civil liability for willful noncompliance with the FCRA. 15 U.S.C. 9 § 1681n; see also Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1273 (9th Cir. 10 1990) (“Sections 1681n and 1681o [sic], respectively, make consumer reporting agencies and users 11 liable for willful or negligent noncompliance with ‘any requirement imposed’ under the Act.”). 12 Section 1681n(b), in particular, provides: “Any person who obtains a consumer report from a 13 consumer reporting agency under false pretenses or knowingly without a permissible purpose shall 14 be liable to the consumer reporting agency for actual damages sustained by the consumer reporting 15 agency or $1,000, whichever is greater.” 15 U.S.C. § 1681n(b) (emphasis added). Plaintiff claims 16 that Capital One is liable for “knowing and willful violations of the FCRA” by accessing 17 Plaintiff’s consumer credit report with “actual knowledge” that it lacked a permissible purpose. 18 Compl. ¶¶ 34-36. 19 III. DISCUSSION 20 Article III of the Constitution provides that federal courts only have jurisdiction over 21 “cases” and “controversies.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992); Whitmore v. 22 Arkansas, 495 U.S. 149, 154-55 (1990). “The doctrine of standing serves to identify those 23 disputes which are appropriately resolved through the judicial process.” Whitmore, 495 U.S. at 24 155. 25 Plaintiff has the burden of showing that he has Article III standing to sue in federal court. 26 See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish Article III standing to sue, 27 Plaintiff must satisfy three elements – the “irreducible constitutional minimum of standing.” 1 Lujan, 504 U.S. at 560. First, Plaintiff must demonstrate that he “suffered an injury in fact—an 2 invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual 3 or imminent, not conjectural or hypothetical.” Id. (citation and quotations omitted). With respect 4 to (a), “concrete” means that the injury, whether tangible or intangible, “actually exist[s].” 5 Spokeo, 136 S. Ct. at 1548-49; see In re Verifone, Inc., 2018 WL 3532761, at *4 (N.D. Cal. July 6 23, 2018). With respect to the FCRA, “[a] plaintiff who alleges a ‘bare procedural violation’ of 7 the FCRA, ‘divorced from any concrete harm,’ fails to satisfy Article III’s injury-in-fact 8 requirement.” Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017) (citing Spokeo, 136 S. Ct. at 9 1549) (quotations omitted). “Particularized” means that the injury has harmed the plaintiff “in a 10 personal and individual way.” Spokeo, 136 S. Ct. at 1548 (citation and quotations omitted). 11 Second, a plaintiff must demonstrate that the injury-in-fact “is fairly traceable” to defendant’s 12 alleged conduct. Id. at 1547. Third, a plaintiff must show that the injury-in-fact “is likely to be 13 redressed by a favorable judicial decision.” Id. (citing Lujan, 504 U.S. at 560-61). 14 At the pleading stage, as is the case here, a plaintiff “must ‘clearly . . . allege facts 15 demonstrating’ each element” of standing. Spokeo, 136 S. Ct. at 1547 (citing Warth v. Seldin, 422 16 U.S. 490, 518 (1975)). If a plaintiff does not have Article III standing to sue, then the court must 17 dismiss plaintiff’s suit for lack of subject matter jurisdiction. Robertson, 2017 WL 2730177, at *2 18 (citing Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004)). 19 Here, Plaintiff does not adequately allege a concrete injury to satisfy the “injury-in-fact” 20 requirement of standing. Plaintiff claims he has suffered “and will continue to suffer” from mental 21 anguish and emotional distress due to Capital One’s alleged “impermissible account reviews and 22 credit pulls.” Compl. ¶¶ 39-40. Both parties acknowledge that the credit checks at issue are “soft 23 pulls.” See Pl.’s Opp’n at 2 n.3; see also Def.’s Mot. to Dismiss at 12. But, Plaintiff does not 24 adequately allege that Capital One’s “soft pulls” caused him a concrete injury in any way. A “soft 25 pull” does not impact a consumer’s credit score and is not visible to third parties, whereas a “hard 26 pull” can affect a consumer’s credit score and is visible to third parties. Adler, 2018 WL 6981838, 27 at *1; Banga v. First USA, N.A., 29 F. Supp. 3d 1270, 1274 n.2 (N.D. Cal. 2014); see also Duncan 1 v. JPMorgan Chase Bank, N.A., 2016 WL 4419472, at *10 (W.D. Tex. May 24, 2016). Plaintiff 2 does not claim the “soft pull” inquiries impacted his credit score or that Capital One shared his 3 private personal and financial information in the credit reports with a third party. See Bultemeyer 4 v. CenturyLink, Inc., 2017 WL 634516, at *2 (D. Ariz. Feb. 15, 2017). 5 Instead, Plaintiff claims that he has standing because Capital One’s actions “violate[] the 6 privacy interests recognized by the FCRA and amount[ ] to a concrete injury as opposed to a bare 7 procedural violation.” Pl.’s Opp’n at 8. Plaintiff cites opinions from the Ninth Circuit and the 8 Central District of California for support, but these cases are factually distinguishable. See id. at 9 7-8. 10 In Adler, a court in the Central District of California found that plaintiff had standing 11 because he satisfied the “injury-in-fact” requirement. 2018 WL 6981838, at *4. DirecTV 12 allegedly performed “hard pull” inquiries of plaintiff’s consumer credit report although the parties 13 had no “preexisting relationship” and plaintiff did not “initiate” a transaction that would prompt 14 the “hard pull” inquiries. Id. at *1, *4. Plaintiff alleges that the “hard pull” inquiries “caused him 15 to suffer diminished credit scores, shock and embarrassment, and invasion of privacy.” Id. at *2. 16 The court found that “[a] credit injury that exceeds the scope of section 1681b(a)(3),” which is at 17 issue in this case, “invades a consumer’s right to privacy and results in concrete harm sufficient 18 for Article III standing.” Id. at *4. The court concluded that DirecTV’s alleged “hard pull” 19 inquiries “violate[d] the privacy interests recognized by the FCRA and amount[ed] to a concrete 20 injury as opposed to a bare procedural violation.” Id. But, here, Plaintiff does not allege that 21 Capital One performed “hard pull” inquiries that negatively impacted—or impacted whatsoever— 22 his credit score. See id. at *2. The concrete harm in Adler is lacking here. See id. 23 In re Zappos.com, Inc. is inapposite. There, the Ninth Circuit held that plaintiffs, who 24 alleged that Zappos.com placed them at risk of identity theft following a data breach, adequately 25 pled standing. 888 F.3d 1020, 1022-23 (9th Cir. 2018). In contrast, here, Plaintiff has not pled 26 that the private personal and financial information in his credit report is at any risk of data theft 27 due to Capital One’s “soft pull” inquiries. See id. 1 Vanamann v. Nationstar Mortg., LLC is also distinguishable. The Ninth Circuit held that 2 plaintiff, who alleged that a mortgage servicer violated the FCRA by viewing her credit reports 3 several times after a bankruptcy court entered a discharge order, had standing. 735 F. App’x. 260, 4 261 (9th Cir. 2018). Plaintiff alleged that the mortgage servicer’s conduct caused her severe 5 emotional distress. Id. However, unlike in Vanamann, where the mortgage servicer allegedly 6 accessed plaintiff’s consumer credit reports post-discharge, Capital One allegedly accessed 7 plaintiff’s consumer credit reports prior to discharge, while Plaintiff’s Bankruptcy Petition was 8 pending. See id.; see also Pl.’s Opp’n at 6-7 n.7; RJN, Ex. B. Thus, Plaintiff’s reliance on these 9 cases is misplaced because the cases do not support Plaintiff’s position that he has sufficiently 10 pled the “injury-in-fact” requirement of standing. 11 Instead, the court finds persuasive the reasoning in Oneal v. First Tennessee Bank, a 12 decision from the Eastern District of Tennessee. See 2018 WL 1352519 (E.D. Tenn. March 15, 13 2018). In Oneal, the court found that plaintiff, who alleged that defendant’s “soft-pull” inquiry 14 caused him an invasion of privacy, mental anguish, and emotional distress, did not satisfy the 15 “injury-in-fact” requirement of standing. Id. at *2-3, *6. The court concluded that “an alleged 16 invasion of privacy resulting from an improper credit inquiry, without more, does not constitute a 17 concrete injury in fact.” Id. at *9. The court reasoned that “[a]bsent an allegation that defendant 18 used or disseminated his credit report in any harmful way—or otherwise exposed this information 19 to a substantial risk of access by others—plaintiff has alleged an injury that is merely abstract.” 20 Id. (citing Spokeo, 136 S. Ct. at 1548) (quotations omitted). 21 Similarly, in Bultemeyer v. CenturyLink, Inc., a district court in this circuit concluded that 22 plaintiff, who alleged that defendant violated the FCRA by conducting a credit inquiry of 23 plaintiff’s consumer credit report without a permissible purpose, lacked standing. 2017 WL 24 634516, at *1, *4. Also, as Capital One argues, “‘[m]any district courts’ in the Ninth Circuit have 25 similarly ‘dismissed [various] FCRA claims that are based on bare procedural violations.’” Def.’s 26 Mot. to Dismiss at 9-10 (citing Williams v. Nichols Demos, Inc., 2018 WL 3046507, at *4 (N.D. 27 Cal. June 20, 2018)) (dismissing plaintiff’s claim that defendants violated the “stand alone” 1 requirement of FCRA by including a disclosure and authorization for a background investigation 2 in defendant’s employment application); Bercut v. Michaels Stores Inc., 2017 WL 2807515, at *5 3 (N.D. Cal. June 29, 2017) (stating that “actual confusion or some other non-procedural harm must 4 be alleged to create an Article III controversy”); Benton v. Clarity Servs., Inc., 2017 WL 345583, 5 at *2 (N.D. Cal. Jan. 24, 2017) (finding allegation that defendant did not disclose source of 6 information in violation of Section 1681g constituted a bare procedural violation, and was 7 inadequate to establish standing); Lee v. Hertz Corp., 2016 WL 7034060, at *5 (N.D. Cal. Dec. 2, 8 2016) (finding allegation that disclosure form contained “extraneous” information was insufficient 9 to demonstrate standing). 10 Here, Plaintiff has not sufficiently pled that he suffered an “injury-in-fact.” In Oneal and 11 Bultemeyer, plaintiffs did not adequately plead a concrete injury because they neither alleged that 12 defendants’ credit inquiries impacted their credit scores nor that defendants disclosed private 13 personal and financial information in the credit reports with third parties. See Oneal, 2018 WL 14 1352519, at *6, *9; see also Bultemeyer, 2017 WL 634516, at *1-2, *4. Plaintiff likewise fails to 15 sufficiently plead that Capital One’s “soft pulls,” which are not visible to third parties and do not 16 affect a consumer’s credit score, caused him a concrete injury. See id.; see also Spokeo, 136 S. Ct. 17 at 1548-49. Because Plaintiff has alleged only “a bare procedural violation of the FCRA, divorced 18 from any concrete harm,” Plaintiff does not fulfill the “injury-in-fact” requirement of standing. 19 See Syed, 853 F.3d at 499 (citing Spokeo, 136 S. Ct. at 1549) (quotations omitted). Therefore, this 20 court dismisses Plaintiff’s claim for lack of subject matter jurisdiction and GRANTS Defendant’s 21 motion WITH LEAVE TO AMEND. 22 IV. ORDER 23 For the reasons set forth above, Defendant’s motion to dismiss for lack of jurisdiction under 24 Federal Rule of Civil Procedure 12(b)(1) is GRANTED. Because the court has dismissed 25 Plaintiff’s claims for lack of subject matter jurisdiction under Rule 12(b)(1), it need not reach 26 Defendant’s challenges under Rule 12(b)(6). 27 All claims in the complaint are DISMISSED WITH LEAVE TO AMEND. Plaintiff has ] two weeks from the filing date of this order to amend his complaint. 2 3 IT ISSO ORDERED. 4 || Dated: September 24, 2019 5 EDWARD J. DAVILA 6 United States District Judge 7 8 9 10 1] %L

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Z 18 19 20 21 22 23 24 25 26 27 28 |} Case No.: 5:18-cv-06466-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITH LEAVE TO AMEND