Espinoza v. Trans Union LLC

Opinion

1 WO 2 3 4 5

9 Raymond Espinoza, No. CV-22-01670-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Trans Union LLC, et al.,

13 Defendants. 14 15 Pending before the Court is a motion to dismiss filed by Defendant Trans Union 16 LLC (“Trans Union”). (Doc. 17.) The motion is fully briefed and neither side requested 17 oral argument. (Docs. 21, 23.) For the following reasons, the motion is granted. 19 On January 31, 2023, Plaintiff filed the operative pleading in this action, the First 20 Amended Complaint (“FAC”). (Doc. 14.) As relevant to Trans Union,1 the FAC alleges 21 as follows. 22 On an unspecified date, non-party Nissan Acceptance “inaccurately reported” a 23 tradeline regarding Plaintiff to Trans Union. (Id. ¶ 7.) More specifically, “Nissan 24 Acceptance is reporting an inaccurate payment . . . status of 60-89 days late on Plaintiff’s 25 Trans Union credit disclosure.” (Id. ¶ 8.) “The reporting is inaccurate because the account 26 1 The FAC also names Equifax Information Services, LLC (“Equifax”), Experian 27 Information Solutions, Inc. (“Experian”), and Citibank, N.A. (“Citibank”) as Defendants. (Doc. 14.) Plaintiff has since settled with Experian (Docs. 24, 34) and was ordered to 28 arbitrate his claims as to Citibank (Doc. 35). Equifax filed an answer to the FAC (Doc. 36) and remains a Defendant. 1 reflected by the Nissan Acceptance False Tradeline was paid by Plaintiff in full.” (Id. 2 ¶ 11.) 3 “On August 26, 2022, Plaintiff, through Credit Repair Lawyers of America, 4 submitted a letter to Trans Union disputing the Nissan Acceptance False Tradeline. In his 5 letter, Plaintiff explained that the account reflected by the Nissan Acceptance False 6 Tradeline was paid in full by the Plaintiff and electronically signed the letter [sic]. Plaintiff 7 attached the Nissan Payment History and Nissan Lien Satisfaction letter verifying the same. 8 He asked the Trans Union to correct the inaccurate reporting.” (Id. ¶¶ 13-14.) However, 9 “[o]n September 14, 2022, Plaintiff received a letter from Trans Union stating that it didn’t 10 appear that Plaintiff or a properly authorized third party send [sic] the letter to them, hence, 11 Defendant failed or refused to provide the Plaintiff with the result of their investigation.” 12 (Id. ¶ 21.) 13 Based on these allegations, Plaintiff asserts two claims against Trans Union. First, 14 in Count Three of the FAC, Plaintiff asserts a claim for negligent violation of the Fair 15 Credit Reporting Act (“FCRA”). (Id. ¶¶ 41-47.) More specifically, Plaintiff alleges that 16 (1) “Trans Union negligently failed to maintain and/or follow reasonable procedures to 17 assure maximum possible accuracy of the information it reported to one or more third 18 parties pertaining to Plaintiff, in violation of 15 USC 1681e(b)”; and (2) “[a]fter receiving 19 Plaintiff’s consumer dispute to the False Tradeline, Trans Union negligently failed to 20 conduct a reasonable reinvestigation as required by 15 U.S.C. 1681i.” (Id.) Second, in 21 Count Four of the FAC, Plaintiff asserts a claim for willful violation of the FCRA. (Id. 22 ¶¶ 48-54.) The allegations underlying this claim are similar to the allegations underlying 23 Count Three, except Plaintiff alleges that Trans Union’s failures were willful rather than 24 negligent. (Id. ¶¶ 45, 52.) 25 … 26 … 27 … 28 … 2 I. Legal Standard 3 “[T]o survive a motion to dismiss under Rule 12(b)(6), a party must allege sufficient 4 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re 5 Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (internal quotation marks 6 omitted). “A claim has facial plausibility when the plaintiff pleads factual content that 7 allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll 9 well-pleaded allegations of material fact in the complaint are accepted as true and are 10 construed in the light most favorable to the non-moving party.” Id. at 1444-45 (citation 11 omitted). However, the court need not accept legal conclusions couched as factual 12 allegations. Iqbal, 556 U.S. at 679-80. Moreover, “[t]hreadbare recitals of the elements of 13 a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. 14 The court also may dismiss due to “a lack of a cognizable theory.” Mollett v. Netflix, Inc., 15 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted). 16 II. The Parties’ Arguments 17 Trans Union moves to dismiss Counts Three and Four pursuant to Rule 12(b)(6). 18 (Doc. 17.) As an initial matter, Trans Union argues that because the FAC explicitly refers 19 to, and incorporates by reference, Plaintiff’s “correspondence to Trans Union and how his 20 Nissan Account was reporting on his credit file at the time of his August 2022 dispute,” 21 the Court may take judicial notice of those items without converting Trans Union’s motion 22 into a motion for summary judgment. (Id. at 3-4.) To that end, Trans Union encloses, as 23 an attachment to its motion, a copy of its October 2022 credit report concerning Plaintiff. 24 (Doc. 17-2.)2 Trans Union also provides a declaration from a Trans Union representative 25 avowing that “[t]he Nissan Motor Acceptance Account displayed on Page 2 of 20 [of the 26 October 2022 credit report] was last updated and closed by Nissan on June 9, 2022. This 27 2 Although Trans Union’s motion seems to suggest that Trans Union is also seeking 28 consideration of the dispute-related correspondence between Plaintiff and Trans Union, no copies of that correspondence were provided by the parties. 1 || account was reporting in August 2022 as shown on [the October 2022 credit report] at the 2|| time of Plaintiff's alleged August 2022 dispute.” (Doc. 17-1 95.) The relevant portion of || the October 2022 credit report appears as follows: 4 NISSAN MOTOR ACCEPTANCE # (PO BOX 660366, DALLAS, TX 75266-0366, (800) 777-6700) 5 Date Opened: 06/27/2015 Date Updated: 06/09/2022 Pay Status: 2Paid, Closed; was 60 days past Responsibility: Individual Account Payment Received: $176 due date¢ 6 Account Type: Installment Account Last Payment Made: 06/09/2022 Terms: $0 per month, paid Monthly for 82 Loan Type: AUTOMOBILE months Date Closed: 06/09/2022 7 >Maximum Delinquency of 60 days in 05/2022 for $1 and in 06/2022 High Balance: High balance of $49,381 from 03/2021 to 03/2021; $49,381 from 05/2021 to 03/2022; $49,381 from 05/2022 to 06/2022 8 Estimated month and year that this item will be removed: 03/2029 [06/2022 | 05/2022 | 04/2022 | 03/2022 | 02/2022 | 01/2022 | 12/2021 | 11/2021 | 10/2021 | 09/2021 | 08/2021 | □□□□□□□ | 9 Balance | 3] S17 | 827277] $1,019,698] $2,384] 33,07 $3,754 □□□□□□□ $5,128 meer | | PO AmountPaid | Si7q_ S| S08 S85] S68] $689 □□□□ □□□□ Pastoue —[__—SqsSCCCSSSCi SSCSSC □□ Remarks | DRG/CLO] □□□ □□□ RG RG] RG RG] RG RG □□□ □□ 11] Rane 12) Sane sear me | | 13 Amount Paid | $68f Sos TSB PastDue | SU Remarks | DRG RG □□ Rating | Coe] Cowl] xd] Ce} xd} eee] □□ || Rating Lox] foes} ok} ok} fox |} fowl} [ox] 16 || Ratins

ig) = (Doc. 17-2 at 3.) With this background in mind, Trans Union argues that Plaintiff's FCRA 20 || claims necessarily fail. According to Trans Union, such claims “require a plaintiff to plead || and prove an inaccuracy in his credit report or credit file.” (Doc. 17 at 4-5.) Trans Union 22 || argues that the theory of inaccuracy asserted in the FAC is that Trans Union falsely reported 23 || Plaintiff's payment status as “60-89 days late” when the account “was paid by Plaintiff in pay y p y full,” but the excerpted portion of Plaintiff's credit report shows that, “when viewing the 25 || Account in its entirety, it becomes abundantly clear that Plaintiff's Account was accurately 26 || reported and does not look as if the Account was still open and 60 days late. Instead, the || Nissan Account reflects that it: 1) has a balance of $0; 2) was last updated on June 9, 2022; 28 |} 3) was closed on June 9, 2022; 4) was 60 days past due in May 2022 and June 2022 and ysp

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1 noted as its maximum delinquency; and (5) also has a Pay Status of closed.” (Id. at 5.) 2 Trans Union continues that “[t]he only reasonable reading of the Account, in its entirety, 3 is that Plaintiff was 60 days past due in May 2022 and in June 2022, at which time (on June 4 9, 2022) the Account was closed, and the balance reduced to $0. It does not indicate, as 5 Plaintiff contends, that the Account was currently ‘60-89 days late.’” (Id. at 6.) Trans 6 Union also cites an array of decisions by district and circuit courts concluding that a 7 derogatory “pay status” section reflecting historical late payments does not suggest that the 8 account is still open and past due. (Id. at 6-13.) Trans Union concludes by asking the 9 Court to reject Plaintiff’s “tortured” theory “that reporting his accurate, derogatory 10 payment history[] makes it look like the Account is still open with some outstanding 11 amount due.” (Id. at 13-14.) At a minimum, Trans Union argues the Court should dismiss 12 Count Four because there are inadequate allegations of willfulness. (Id. at 14-17.) 13 Plaintiff opposes Trans Union’s motion. (Doc. 21.) Plaintiff argues that Trans 14 Union’s dismissal arguments are unavailing because they are premised on the October 15 2022 credit report, which isn’t properly before the Court at this stage of the case. (Id. at 6- 16 8.) In response to Trans Union’s contention that the October 2022 credit report was 17 incorporated by reference in the FAC, Plaintiff argues that the “October 19, 2022 credit 18 disclosure is not referred to in the Complaint and does not form any part of the basis of the 19 Complaint. Rather, by letter dated August 26, 2022, Plaintiff disputed to Trans Union that 20 the Nissan tradeline should report as paid in full. On or about September 14, 2022, Plaintiff 21 received a letter from Trans Union stating that it didn’t appear that Plaintiff or a properly 22 authorized third party sent the letter to them.” (Id. at 7.) Plaintiff further contends that the 23 declaration from the Trans Union representative is not properly before the Court because 24 “[t]he Declaration . . . is not referred to in the Complaint and is an improper attempt by 25 Trans Union to refute Plaintiff’s allegations, which this Court must accept as true when 26 considering Trans Union’s motion to dismiss. [The deponent] has not been deposed in this 27 case to test the accuracy of his statements in the Declaration.” (Id. at 6.) Turning to the 28 merits, Plaintiff argues that the FAC adequately alleges an inaccuracy, as required to 1 support an FCRA claim, because “Plaintiff does not allege that a historical payment term 2 is reporting inaccurately. Rather, Plaintiff alleges that Trans Union is reporting a 60-89 3 days late payment status for the Nissan tradeline. Plaintiff alleges that the account was 4 paid in full and the payment status should reflect the payment in full. Plaintiff clearly pled 5 the inaccuracy in the Nissan tradeline: the 60-89 days late negative payment status when 6 Plaintiff has paid the account in full.” (Id. at 8-9.) Elsewhere, Plaintiff elaborates: 7 “Plaintiff clearly pled an inaccuracy. Specifically, Plaintiff pled that the Nissan tradeline 8 inaccurately reported the payment status as 6[0]-89 days late in Plaintiff’s Trans Union 9 credit report when it was paid in full by Plaintiff. Without this accurate reporting notation, 10 any creditor reading Plaintiff’s credit report would be misled to believe that this account 11 was not paid in full and active when, in fact, it was paid in full and is no longer Plaintiff’s 12 obligation.” (Id. at 10.) Finally, Plaintiff defends the sufficiency of the FAC’s willfulness 13 allegations (id. at 12) and requests leave to amend in the event of dismissal (id. at 12-13). 14 In reply, Trans Union argues that the October 2022 credit report is properly before 15 the Court because “the reporting of the Nissan account on Plaintiff’s Trans Union file was 16 indisputably referenced and centrally relied upon by Plaintiff in his Complaint” and that 17 the accompanying declaration “was not being offered for any reason other than for 18 authentication purposes.” (Doc. 23 at 1-2.) Trans Union then reincorporates its arguments 19 as to why the information contained in the October 2022 credit report cannot be considered 20 inaccurate: “Plaintiff’s account accurately reflected that the account was paid, closed, and 21 that Plaintiff was 60 days past due at the time the account was closed.” (Id. at 2-3.) Trans 22 Union also contends that leave to amend should be denied because amendment would be 23 futile. (Id. at 4.) 24 III. Analysis 25 As a threshold matter, the Court must determine whether it may consider Plaintiff’s 26 October 2022 credit report, which Trans Union provided as an attachment to its motion. 27 “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence 28 outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion 1 for summary judgment, and it must give the nonmoving party an opportunity to respond.” 2 United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, 3 consider certain materials—documents attached to the complaint, documents incorporated 4 by reference in the complaint, or matters of judicial notice—without converting the motion 5 to dismiss into a motion for summary judgment.” Id. at 908. Here, Trans Union seeks to 6 rely on the incorporation-by-reference doctrine. The Ninth Circuit has “extended the 7 doctrine of incorporation by reference to consider documents in situations where the 8 complaint necessarily relies upon a document or the contents of the document are alleged 9 in a complaint, the document’s authenticity is not in question and there are no disputed 10 issues as to the document’s relevance. But the mere mention of the existence of a document 11 is insufficient to incorporate the contents of a document.” Coto Settlement v. Eisenberg, 12 593 F.3d 1031, 1038 (9th Cir. 2010). 13 Applying these standards, the Court agrees with Trans Union that the credit report 14 may be considered. Plaintiff’s FCRA claims against Trans Union turn on the accuracy of 15 the information contained in his Trans Union credit reports and the FAC contains specific 16 allegations regarding the contents of those reports: “Nissan Acceptance is reporting an 17 inaccurate payment . . . status of 60-89 days late on Plaintiff’s Trans Union credit 18 disclosure.” (Doc. 14 ¶ 8.) This is precisely the sort of scenario that triggers the 19 incorporation-by-reference doctrine. See, e.g., Nelson v. Equifax Info Servs., LLC, 2021 20 WL 4497500, *2 (C.D. Cal. 2021) (“[B]ecause the Complaint references Westlake’s credit 21 reporting to Equifax and the credit report is the basis of Plaintiff’s claims, the Court can 22 consider the credit reporting based on the incorporation by reference doctrine in ruling on 23 the instant Motion.”) (citations omitted); Holmes v. JP Morgan Chase Bank, 2019 WL 24 2183449, *1 n.2 (S.D. Cal. 2019) (“The Court will consider Plaintiff’s credit report 25 pursuant to the doctrine of incorporation by reference.”); Torion v. JPMorgan Chase Bank, 26 Nat. Ass’n, 2017 WL 2986250, *4 (N.D. Cal. 2017) (“[A]lthough the credit reports were 27 not attached to the complaint, the court will consider them on Chase’s motion to dismiss 28 pursuant to the incorporation by reference doctrine.”); Muehlenberg v. Experian Info. 1 Solutions, Inc., 2017 WL 6622837, *3 n.2 (N.D. Cal. 2017) (“While the credit reports 2 themselves were not submitted with the pleadings, . . . [b]ecause Muehlenberg both ‘refers 3 extensively to the document[s]’ and they ‘form[] the basis of the Muehlenberg’s claim[s],’ 4 I will consider these documents incorporated by reference in Muehlenberg’s Second 5 Amended Complaint.”). 6 There are two potential wrinkles, but neither undermines the conclusion that the 7 document submitted by Trans Union was incorporated by reference in the FAC. The first 8 is a timing issue. Trans Union has submitted a credit report that was issued in October 9 2022, but the FAC alleges that Plaintiff noticed an inaccuracy in his Trans Union credit 10 report at some point before August 2022 and then complained to Trans Union in August 11 2022, only for Trans Union to decline to address his concerns. (Doc. 14 ¶¶ 13-14, 21.) If 12 Plaintiff’s claims against Trans Union turned on inaccuracies that appeared in earlier 13 versions of his credit reports but had been changed by October 2022, this timing issue 14 might present a hurdle to the incorporation-by-reference analysis. Cf. Moses v. Experian 15 Info. Solutions, Inc., 2016 WL 3670068, *3 (N.D. Cal. 2016) (“The February 2016 reports 16 submitted by AFNI were obtained months after the credit reports referenced in the FAC 17 and do not speak to the contents of the credit reports that form the basis of Plaintiff’s FCRA 18 claim. AFNI’s request for incorporation by reference is DENIED.”). But that is not the 19 situation here. The FAC, which was filed in January 2023, specifically alleges that the 20 same inaccuracies that prompted Plaintiff to complain to Trans Union in August 2022 21 continue to appear in his Trans Union credit reports: “Nissan Acceptance is reporting an 22 inaccurate payment . . . status of 60-89 days late on Plaintiff’s Trans Union credit 23 disclosure.” (Doc. 14 ¶ 8, emphasis added.) Additionally, the document submitted by 24 Trans Union indicates that Trans Union’s reporting in relation to Plaintiff’s Nissan account 25 was last updated on “06/09/2022.” (Doc. 17-2 at 3.) This is further evidence that the 26 reporting set forth in Plaintiff’s October 2022 credit report is the same reporting that gives 27 rise to Plaintiff’s claims. Plaintiff conspicuously does not suggest otherwise in his 28 opposition brief. 1 The second wrinkle relates to authentication. As noted, one of the requirements for 2 incorporation by reference is that “the document’s authenticity is not in question.” Coto 3 Settlement, 593 F.3d at 1038. Here, Trans Union has submitted a declaration from a 4 qualified representative avowing that the October 2022 credit report is authentic. (Doc. 5 17-1 ¶ 6.) Meanwhile, Plaintiff’s 16-page opposition brief does not raise any objections to 6 the authenticity of the October 2022 credit report. (Doc. 21.) The word “authenticity” 7 only appears once, in a generic recitation of the Ninth Circuit incorporation-by-reference 8 standard (id. at 5), and Plaintiff’s sole proffered reason for opposing consideration of the 9 October 2022 credit report is that it was “not referred to in the Complaint and does not 10 form any part of the basis of the Complaint” (id. at 6-7). However, Plaintiff also included, 11 as an attachment to his opposition brief, a declaration from his counsel. (Doc. 21-1.) In 12 that declaration, counsel asserts that “[i]f the Court converts Trans Union LLC’s Motion 13 to Dismiss to a summary judgment motion the [sic] pursuant to Fed. R. Civ. P. 56(d) there 14 is a need for Plaintiff for facts essential to justify opposition to a summary judgment motion 15 though discovery. Specifically, discovery regarding the Declaration of Don Wagner 16 incorporated by Trans Union in its Motion to Dismiss and attached as Exhibit A, Doc #17- 17 1, and the TransUnion credit disclosure attached as Exhibit A-1, Doc #17-2, including the 18 authenticity and admissibility of the documents.” (Id. at 2.) 19 The Court does not construe this passage in counsel’s declaration as raising an 20 authenticity challenge to the October 2022 credit report for purposes of the incorporation- 21 by-reference analysis. Nowhere does Plaintiff, or Plaintiff’s counsel, affirmatively 22 question the authenticity of the October 2022 credit report. Mentioning a vague desire to 23 conduct discovery into “the authenticity and admissibility” of various documents is a far 24 cry from actually impugning the authenticity of Trans Union’s proffered copy of the credit 25 report that forms the basis of Plaintiff’s claims. Clearly, Plaintiff knows what his credit 26 report contains—the claims in the FAC against Trans Union are entirely premised upon it. 27 But notably absent from Plaintiff’s response is any assertion that the October 2022 credit 28 report differs in any respect from the report in his possession. Cf. Stewart v. Kodiak Cakes, 1 LLC, 537 F. Supp. 3d 1103, 1119 (S.D. Cal. 2021) (“Plaintiffs raise the specter of an 2 authenticity dispute . . . [but] Plaintiffs do not detail how [the disputed documents] are 3 inauthentic, inaccurate, or disputed; instead, they merely question the manner in which they 4 are presented before the Court. Therefore, Plaintiffs do not genuinely question the 5 authenticity of the exhibits.”); Dual Diagnosis Treatment Ctr., Inc. v. Blue Cross of Cal., 6 2016 WL 6892140, *23 (C.D. Cal. 2016) (largely rejecting authenticity challenge to 7 incorporation-by-reference request where “Plaintiffs did not object to the authenticity of 8 the offered documents per se, but did state that they ‘cannot agree to their authenticity’”). 9 Cf. Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006) 10 (“Whether the authentication requirement should be applied to bar evidence when its 11 authenticity is not actually disputed . . . [is] questionable. . . . [A]n exception to the 12 authentication requirement is particularly warranted in cases such as this where the 13 objecting party does not contest the authenticity of the evidence submitted but nevertheless 14 makes an evidentiary objection based on purely procedural grounds.”). Nor did Plaintiff 15 append to his response a copy of his credit report from August 2022 (or any other month) 16 to demonstrate that the credit report provided by Defendant was potentially inauthentic. 17 Having concluded that the October 2022 credit report is properly before the Court 18 and reflects the status of Trans Union’s credit reporting for Plaintiff as of June 2022, the 19 dismissal analysis is straightforward. Although the inquiry under Rule 12(b)(6) is 20 generally “limited to the allegations in the complaint, which are accepted as true and 21 construed in the light most favorable to the plaintiff,” a court “need not accept as true 22 allegations contradicting documents that are referenced in the complaint or that are 23 properly subject to judicial notice.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th 24 Cir. 2008). Here, although the FAC attempts, through artful pleading, to suggest that Trans 25 Union “report[ed] an inaccurate payment . . . status of 60-89 days late” even though 26 Plaintiff’s Nissan Acceptance account “was paid by Plaintiff in full” (Doc. 14 ¶¶ 8, 11), 27 the actual credit report shows that Trans Union reported that Plaintiff’s balance was $0 and 28 that the “Pay Status” of the account was “Paid, Closed; was 60 days past due date.” (Doc. 1 17-2 at 3, emphasis added.) The actual credit report also provided details regarding the 2 historical late payments that occurred before Plaintiff paid the account in full. (Id.) 3 The Third Circuit’s decision in Bibbs v. Trans Union LLC, 43 F.4th 331 (3d Cir. 4 2022), is instructive in evaluating whether such reporting may give rise to an FCRA claim. 5 In Bibbs, each plaintiff’s credit report “contained a negative ‘Pay Status’ notation stating 6 ‘>Account 120 Days Past Due<,’” but “[t]he entries also stated that the loans were closed, 7 transferred, and had account balances of zero.” Id. at 336. Notably, unlike here (where the 8 “Pay Status” line indicted that Plaintiff’s account “was past due date” but had since become 9 “Paid, Closed,” see Doc. 17-2 at 3), there were “no verbs such as ‘is’ or ‘was’ or any other 10 language in this entry that make ‘patently’ clear whether it means ‘currently’ 120 days past 11 due or ‘historically’ 120 days past due.” Bibbs, 43 F.3d at 343. The plaintiffs sued Trans 12 Union under the FCRA, arguing that their credit reports were misleading and inaccurate 13 because “the only way to read this entry is to conclude it means ‘currently’ past due.” Id. 14 The Third Circuit rejected this argument, explaining that the “reports contain multiple 15 conspicuous statements reflecting that the accounts are closed and [plaintiffs] have no 16 financial obligations to their previous creditors. These statements are not in conflict with 17 the Pay Status notations, because a reasonable interpretation of the reports in their entirety 18 is that the Pay Status of a closed account is historical information.” Id. at 344. Thus, the 19 Third Circuit held that the district court properly rejected the plaintiffs’ FCRA claims, 20 including their reinvestigation-based claims. Id. at 345 (“[T]he Pay Status entries in 21 [plaintiffs’] credit reports are neither inaccurate nor misleading to a reasonable reader. 22 That forecloses [their] claims under § 1681i(a), just as it does their § 1681e(b) claims.”). 23 As Trans Union correctly notes in its motion, Bibbs is not an outlier in reaching this 24 conclusion. Instead, it is simply a recent example of a long string of decisions—including 25 decisions by other district courts in Arizona—rejecting FCRA claims under similar 26 circumstances. See, e.g., Sanchez v. JPMorgan Chase Bank NA, 643 F. Supp. 3d 1025, 27 1036 (D. Ariz. 2022) (“As Plaintiff alleges, her tradeline does read ‘Pay Status: Account 28 120 Days Past Due Date.’ Yet this is neither patently inaccurate nor materially misleading. 1 When ‘Pay Status’ is looked at in conjunction with the other items reported on her tradeline, 2 it becomes obvious that the tradeline is reporting a historical pay status. Her tradeline lists 3 her balance as zero, shows that the last payment was made in September of 2018, notes 4 that the account was closed in 2018, and that it was settled for less than the full balance. 5 Furthermore, no account information is provided for dates after September 2018. Her 6 tradeline also notes the months during which she was delinquent. Finally, nowhere on the 7 tradeline does it state that it is reporting a ‘current’ pay status. No reasonable reader could 8 look at all of these facts and still believe that her Pay Status represents a current debt. Thus, 9 the information reported is not patently inaccurate or materially misleading. Many other 10 courts have held that there was no inaccuracy in similar circumstances.”); Gross v. Private 11 National Mortgage Acceptance Company, LLC, 512 F. Supp. 3d 423, 426-27 (E.D.N.Y. 12 2021) (“If a creditor read the ‘Pay Status’ entry in isolation, the creditor might conclude 13 that the account was currently past due. But when the creditor read the rest of the entries, 14 the creditor would surely forego that conclusion. The credit report contains several other 15 entries that show that the ‘30 Days Past Due’ refers to the period when the payments were 16 due to PNMAC. For instance, the report shows that the account is closed and has a $0 17 balance. An account with a $0 balance cannot currently be past due—what would the 18 debtor have to pay to bring the account current? . . . Reading these entries together, the 19 only logical inference is that the account was previously 30 days past due. It is simply not 20 plausible to think that a creditor would conclude otherwise.”). 21 This is an even easier case than Bibbs and some of the other decisions cited by 22 Trans Union. By including the word “was” in the Pay Status line immediately before the 23 phrase “past due date,” Trans Union clearly denoted that the current status of the account 24 was “Paid, Closed” and that the “past due date” payments were simply part of Plaintiff’s 25 historical payment record. Thus, Plaintiff’s credit report was “neither inaccurate nor 26 misleading to a reasonable reader,” which in turn “forecloses [his] claims under § 1681i(a), 27 just as it does [his] § 1681e(b) claims.” Bibbs, 43 F.4th at 345. See also Guimond v. Trans 28 Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995) (“In order to make out a prima facie violation under § 1681e(b), a consumer must present evidence tending to show that a || credit reporting agency prepared a report containing inaccurate information.”); Carvalho 3|| v. Equifax Info. Servs., LLC, 629 F.3d 876, 890 (9th Cir. 2010) (“Although the FCRA’s 4|| reinvestigation provision, 15 U.S.C. § 16811, does not on its face require that an actual 5 || inaccuracy exist for a plaintiff to state a claim, many courts, including our own, have 6 || imposed such a requirement.”). 7 The final question is whether Plaintiff should be granted leave to amend. Rule 15(a) 8 || of the Federal Rules of Civil Procedure “advises the court that ‘leave [to amend] shall be freely given when Justice so requires.’” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 10}} 1048, 1051 (9th Cir. 2003) (citation omitted). “This policy is ‘to be applied with extreme liberality.’” /d. (citation omitted). Thus, leave to amend should be granted unless “the 12 || amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an 13 || undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). The Court agrees with Trans Union that leave to amend 15 || is unwarranted here due to futility. Plaintiffs credit report is not inaccurate and no attempt 16 || at amendment can change that fact. It is also telling that Plaintiff does not attempt to 17 || identify, in his request for leave to amend, any new facts he might be able to plead to cure 18 || the deficiencies identified by Trans Union. 19 Accordingly, 20 IT IS ORDERED that Trans Union’s motion to dismiss (Doc. 17) is granted. 21 || Counts Three and Four of the FAC are dismissed without leave to amend and Trans Union is dismissed as a Defendant. 23 Dated this 25th day of September, 2023. 24 25 Am ee 26 i _o—— Dominic W. Lanza a7 United States District Judge 28

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