Smith II v. Bridgecrest Credit Company, LLC

• Court: District Court, D. Nevada
• Decided: January 27, 2025
• Docket: 2:25-cv-00004
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 ROBERT CHARLES SMITH II, Case No. 2:25-cv-00004-MMD-EJY

5 Plaintiff, ORDER 6 v.

7 BRIDGECREST CREDIT COMPANY, LLC, ZANE’S INCORPORATIONS, EVA G, and 8 MICHAEL GONZALES,

9 Defendants.

10 11 Pending before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP”) and 12 Complaint. ECF Nos. 1, 1-1. Plaintiff’s IFP is complete and granted. Plaintiff’s Complaint fails to 13 state a claim as presently drafted. Leave to amend is granted below. 14 I. Screening Standard 15 Upon granting Plaintiff’s IFP application the Court must screen his Complaint under 28 16 U.S.C. § 1915(e)(2). In its review, the Court must identify any cognizable claims and dismiss any 17 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 18 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 19 Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 20 696, 699 (9th Cir. 1988). A federal court must dismiss a claim if the action “is frivolous or 21 malicious[,] fails to state a claim on which relief may be granted[,] or seeks monetary relief against 22 a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). The standard for dismissing 23 a complaint for failure to state a claim is established by Federal Rule of Civil Procedure 12(b)(6). 24 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 25 the complaint with directions to cure its deficiencies unless it is clear from the face of the complaint 26 that the deficiencies cannot be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th 27 Cir. 1995). In making this determination, the Court treats all allegations of material fact stated in 1 the complaint as true, and the court construes them in the light most favorable to the plaintiff. 2 Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 3 Allegations of a pro se complainant are held to less stringent standards than pleadings drafted 4 by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does 5 not require detailed factual allegations, a plaintiff must plead more than mere labels and conclusions. 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a 7 cause of action is insufficient. Id. In addition, a reviewing court should “begin by identifying 8 pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the 9 assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can 10 provide the framework of a complaint, they must be supported with factual allegations.” Id. “When 11 there are well-pleaded factual allegations, a court should assume their veracity and then determine 12 whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint 13 states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to 14 draw on its judicial experience and common sense.” Id. 15 Finally, all or part of a complaint may be dismissed sua sponte if the plaintiff’s claims lack 16 an arguable basis either in law or in fact. This includes claims based on legal conclusions that are 17 untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a 18 legal interest which clearly does not exist), as well as claims based on fanciful factual allegations 19 (e.g., fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 20 McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 21 II. Plaintiff’s Complaint 22 Plaintiff’s Complaint, also titled a Motion for Summary Judgment, identifies four defendants 23 including Bridgecrest Credit Company, LLC (“Bridgecrest”), Zane Incorporation (“Zane”), and Eva 24 G. and Michael Gonzales (each individual alleged to be associated with Bridgecrest). ECF No. 1-1 25 at 1-2. Plaintiff states he is a resident of Clark County, Nevada; however, Plaintiff does not identify 26 the citizenship of any defendant. Id. 27 After providing a timeline of events, Plaintiff lists five causes of action. Id. at 2-3. These 1 Act (“FDCPA”), violations of the Fair Credit Reporting Act (“FRCA”), and fraud and 2 misrepresentation. Id. The only facts alleged to support these claims are as follows: (1) Plaintiff 3 purchased a vehicle through Carvana in August 2022; (2) Carvana was the original creditor; (3) 4 subsequently, “Plaintiffs account” reflected a zero balance in September and November 2022; (4) in 5 June and July 2024 Plaintiff sent letters of dispute to Bridgecrest; (5) Plaintiff’s car was repossessed 6 in August 2024 by Zane; (6) Plaintiff demanded the return of his car in August 20024; (7) Bridgecrest 7 reported a charge-off damaging Plaintiff’s credit in August 2024; (8) Plaintiff sent letters to the 8 Consumer Financial Protection Bureau (“CFPB”) in August and October 2024; (9) Bridgecrest sold 9 Plaintiff’s car in October 2024; (10) “A third complaint was filed requesting vehicle replacement 10 and … damages” in November 2024; and (11) another “complaint was filed” with the CFPB in 11 December 2024. Id. at 2. 12 A. The Fair Debt Collection Practices Act. 13 To state a claim under the FDCPA, a plaintiff must allege: (1) the plaintiff is the object of 14 debt collection activity; (2) the debt at issue is a consumer debt; (3) the defendant is a debt collector 15 as defined by the FDCPA; and (4) the defendant has engaged in an act or omission prohibited by the 16 FDCPA. Robinson v. Managed Accounts Receivables Corp., 654 F. Supp.2d 1051, 1057 (C.D. Cal. 17 2009). Liberally construed, Plaintiff’s claims appear to arise under 15 U.S.C. § 1692f(6), which 18 prohibits the use of “unfair or unconscionable means to collect or attempt to collect any debt … 19 [and] (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement 20 of property if—(A) there is no present right to possession of the property claimed as collateral 21 through an enforceable security interest; (B) there is no present intention to take possession of the 22 property; or (C) the property is exempt by law from such dispossession or disablement.” Here, 23 although Plaintiff says Defendants’ conduct of repossession was “unlawful”; he alleges no facts 24 demonstrating Defendants’ conduct was oppressive, fraudulent or malicious. Therefore, Plaintiff 25 does not state a cause of action under § 1692f(6). 26 Plaintiff also identifies 15 U.S.C. § 1692g under the FDCPA alleging he sent letters to 27 Bridgecrest that were not “adequately addressed.” ECF No. 1-1 at 2. These facts do not demonstrate 1 sufficient facts to meet the notice pleading requirements of Rule 8(a) because he does not allege 2 sufficient facts regarding Bridgecrest or any other defendant as a debt collector under 15 U.S.C. 3 Section 1692a(6). Accordingly, Plaintiff fails to state a claim under the FDCPA. Banks v. HomeEq 4 Servicing, Civil No. 09cv1197-L(POR), 2010 WL 1009998, at *3 (S.D. Cal. Mar. 18, 2010). 5 B. The Fair Credit Reporting Act. 6 Plaintiff attempts to assert a claim for failure to properly investigate and correct inaccuracy 7 under the FCRA. To state a claim for failing to investigate, arising under the FCRA (15 U.S.C. § 8 1681i(a)(5)), a plaintiff must allege facts supporting his allegations that a defendant’s investigation 9 of the disputed account was unreasonable. Berberyan v. Asset Acceptance, LLC, Case No. CV 12- 10 4417-CAS (PLAx), 2013 WL 1136525, at *5 (C.D. Mar. 18, 2013). See also Mestayer v. Experian 11 Information Solutions, Inc., Case Nos. 15-cv-3645-EMC; 15-cv-3650-EMC, 2016 WL 631980, at 12 *4 (N.D. Cal. Feb. 17, 2016) (dismissing FCRA claims that a furnisher failed to reasonably 13 investigate the disputed account information where the plaintiff alleged the furnisher had failed to 14 review relevant information rendering its investigation unreasonable but offered no factual support 15 for the allegations). “Plaintiff must allege at least some facts that could support a plausible claim 16 that defendant acted unreasonably in carrying out its investigation.” Berberyan, 2013 WL 1136525, 17 at *5. Plaintiff’s facts do not assert what, if any, investigation one or more Defendant did or did not 18 do and how that investigation was unreasonable. Thus, Plaintiff does not state a claim under § 19 1681(a)(5) of the FCRA. 20 To state a claim that a credit reporting agency violated FCRA Section 1681e(b), also alleged 21 in Plaintiff’s Complaint, a plaintiff must allege facts giving rise to the reasonable inference that his 22 consumer report contains inaccurate information and that the reporting agency did not follow 23 reasonable procedures to assure maximum possible accuracy. Guimond v. Trans Union Credit Info. 24 Co., 45 F.3d 1329, 1333 (9th Cir. 1995). More specifically, a plaintiff must sufficiently allege a 25 defendant prepared a report containing inaccurate information. Id. Information is inaccurate if it is 26 either “patently incorrect” or “materially misleading.” Gorman v. Wolpoff & Abramson, LLP, 584 27 F.3d 1147, 1163 (9th Cir. 2009). Information is “materially misleading” if it is “misleading in such 1 fails to state a claim under Section 1681e(b) because his Complaint does not adequately allege 2 inaccuracy. Plaintiff fails to allege decipherable facts demonstrating he was not subject to the 3 charges reported. ECF No. 1-1 at 2. Plaintiff does not allege what was inaccurate on his credit 4 report, but instead says there was a zero balance after which he says he sent a formal dispute letter. 5 There are no decipherable facts alleged explaining what the credit report said or why it was 6 inaccurate. Id. Thus, as currently pleaded, Plaintiff fails to state a claim under the FCRA Section 7 1681e(b). 8 In the absence of a claim arising under federal statute or the U.S. Constitution, Plaintiff does 9 not state a claim over which the Court may exercise subject matter jurisdiction. See Gini v. Las 10 Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994) (explaining that when “federal-law 11 claims are eliminated before trial, the balance of factors ... will point toward declining to exercise 12 jurisdiction over the remaining state law claims”). 13 C. Personal Jurisdiction. 14 Plaintiff fails to assert a basis for personal jurisdiction over any of the Defendants. Personal 15 jurisdiction is established when: “(1) provided for by law; and (2) the exercise of jurisdiction 16 comports with due process.” Southport Lane Equity II, LLC v. Downey, 177 F. Supp. 3d 1286, 1290 17 (D. Nev. 2016) citing Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1207 (9th Cir. 1980). “When 18 no federal statute governs personal jurisdiction, a federal court applies the law of the forum state.” 19 Id. citing Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Where a state, such as Nevada, 20 has a “long-arm” statute providing state “court’s jurisdiction to the fullest extent permitted by the 21 Due Process Clause of the Fourteenth Amendment, a court need only address federal due process 22 standards.” Id. citing Arbella Mut. Ins. Co. v. Eighth Judicial Dist. Court, 122 Nev. 509, 134 P.3d 23 710, 712 (2006) (citing Nev. Rev. Stat. § 14.065); Boschetto, 539 F.3d at 1015. Under these 24 standards, a defendant must generally have “certain minimum contacts” with the forum state before 25 personal jurisdiction will be established. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 26 Personal jurisdiction may be established in one of two ways—“general jurisdiction and 27 specific jurisdiction.” Boschetto, 539 F.3d at 1016; see also Helicopteros Nacionales de Colombia, 1 defendant's contacts with a forum are so substantial, continuous, and systematic that the defendant 2 can be deemed to be ‘present’ in that forum for all purposes.” Menken v. Emm, 503 F.3d 1050, 1056- 3 57 (9th Cir. 2007). Specific jurisdiction is “jurisdiction based on the relationship between the 4 defendant's forum contacts and plaintiff's claims.” Id. at 1057. “[T]he defendant's conduct and 5 connection with the forum State [must be] such that he should reasonably anticipate being haled into 6 court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). “[M]ere injury 7 to a forum resident is not a sufficient connection to the forum.” Walden v. Fiore, 571 U.S. 277, 290 8 (2014). 9 Plaintiff pleads no facts pertaining to Defendants Eva G. or Michael Gonzales and, thus, does 10 not establish personal jurisdiction over either of these Defendants. ECF No. 1-1. With respect to 11 Defendant Zane, Plaintiff says only that this entity wrongfully repossessed his car. Plaintiff does 12 not identify, for example, in what state this occurred or whether Zane is a Nevada corporation. With 13 respect to Defendant Bridgecrest, Plaintiff says only that Zane repossessed his vehicle at 14 Bridgecrest’s direction. Id. There is not a single allegation that would put either of these Defendants 15 on notice that they would be haled into court in the U.S. District Court for the District of Nevada. 16 Thus, as pleaded, Plaintiff fails to state a basis for the Court to exercise personal jurisdiction over 17 any of the Defendants and, for this independent reason, Plaintiff’s claims cannot proceed. 18 III. Order 19 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed 20 in forma pauperis (ECF No. 1) is GRANTED. 21 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1-1) is DISMISSED 22 without prejudice. 23 IT IS FURTHER ORDERED that Plaintiff is granted one opportunity to file an amended 24 complaint. The amended complaint must be filed on the Court’s form and state a bases for subject 25 matter and personal jurisdiction as explained above. The amended complaint must be complete in 26 and of itself, which means all facts alleged and all defendants to be sued must be clearly identified. 27 Plaintiff must explain what act or inaction each defendant took that violated a right protect by law 1 IT IS FURTHER ORDERED that Plaintiff must file his amended complaint no later than 2 February 14, 2025. 3 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff the form civil 4 complaint for a non-prisoner along with instructions for filing the same. 5 IT IS FURTHER ORDERED that failure to comply with the time and substance requirements 6 of this Order will result in a recommendation to dismiss this matter without prejudice in its entirety. 7 Dated this 27th day of January, 2025. 8

9 ELAYNA J. YOUCHAH 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27