Alex Isidro Dominguez v. Navient Solutions, Inc.NOTICE OF MOTION AND MOTION to Dismiss Case or, In the Alternative, for More Definite Statement; Memorandum of Points and AuthoritiesC.D. Cal.January 5, 2017{40336321;1} 1 CASE NO. 2:16-CV-09625-RSWL-JPR MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 AKERMAN LLP CHRISTOPHER R. FREDRICH (SBN 266471) Email: christopher.fredrich@akerman.com 725 South Figueroa Street, 38th Floor Los Angeles, California 90017-5433 Telephone: (213) 688-9500 Facsimile: (213) 627-6342 AKERMAN LLP DENNIS N. LUECK, JR. (SBN 292414) Email: dennis.lueck@akerman.com 1900 Sixteenth Street, Suite 1700 Denver, Colorado 80202 Telephone: (303) 260-7712 Facsimile: (303) 260-7714 Attorneys for Defendant NAVIENT SOLUTIONS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION ALEX ISIDRO DOMINGUEZ, Plaintiff, v. NAVIENT SOLUTIONS, INC. Defendant. Case No. 2:16-cv-09625-RSWL-JPR Honorable Ronald S.W. Lew NAVIENT SOLUTIONS, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT; MEMORANDUM OF POINTS AND AUTHORITIES Hearing Date: Date: February 7, 2017 Time: 10:00 a.m. Crtrm: TBD Complaint Filed: November 17, 2016 Trial Date: None TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE on February 7, 2017 at 10:00 a.m. or as soon thereafter as may be heard in the above-entitled Court, located at 350 West 1st Street, Los Angeles, California 90012, defendant Navient Solutions, Inc. (NSI) Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 1 of 8 Page ID #:42 {40336321;1} 2 CASE NO. 2:16-CV-09625-RSWL-JPR MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 will and hereby does move this Court to dismiss Alex Isidro Dominguez (Plaintiff)'s Complaint with prejudice. The specific courtroom location for the hearing will be separately noticed by the Court. This motion is made and based upon FED.R.CIV.P. 12(b)(6), and is based on the ground that Plaintiff fails to state a claim upon which relief may be granted and the Complaint is barred as a matter of law against NSI. In the alternative, NSI moves this Court for a more definite statement of Plaintiff's claim under FED.R.CIV.P. 12(e). This motion is based upon this notice, the attached memorandum of points and authorities, and upon all papers and documents on file herein, the court’s files concerning this action, together with those facts and documents of which defendants request judicial notice and/or matters for which judicial notice is proper, as well as any oral argument that may be presented at the time of the hearing. This motion is made following a conference of the parties pursuant to Local Rule 7-3. NSI's counsel first contacted Plaintiff on December 30, 2016, leaving a detailed voicemail regarding NSI's its intent to file this motion and the grounds upon which it would be based. NSI's counsel then spoke at length with Plaintiff on January 4, 2017 to further discuss the contemplated the motion. The parties were unable to reach an agreement obviating the need for the motion. Dated: January 5, 2017 Respectfully submitted, AKERMAN LLP By: /s/ Christopher R. Fredrich Dennis N. Lueck, Jr. Christopher R. Fredrich Attorneys for Defendant NAVIENT SOLUTIONS, INC. Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 2 of 8 Page ID #:43 {40336321;1} 1 CASE NO. 2:16-CV-09625-RSWL-JPR MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Alex Isidro Dominguez (Plaintiff) filed a civil action against Defendant Navient Solutions, Inc. (NSI), Plaintiff's student loan servicer, in the small claims division of the Los Angeles County Superior Court. NSI removed the case to the Central District on December 29, 2016 and now moves this Court under Fed. R. Civ. P. 12(b)(6) for an order dismissing Plaintiff's Complaint on the ground that it fails to state a claim upon which relief can be granted. Plaintiff's Complaint seeks remedies related to credit reporting, including "deletion from credit," which invoke the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq. (See Complaint ¶ 3.) Plaintiff, however, lacks Article III standing because the Complaint does not allege a concrete and particularized injury in fact. Plaintiff's claim further fails because he provides no factual allegations to support the naked legal conclusion NSI violated the FCRA. Because Plaintiff does not identify what credit information NSI allegedly communicated or how that information was inaccurate, the Complaint fails to state a claim and the Court should grant NSI's motion to dismiss. Alternatively, the Court should order Plaintiff to provide a more definite statement under Rule 12(e). II. STATEMENT OF RELEVANT FACTS NSI is engaged in the business of servicing both federal and private student loans. As a student loan servicer, NSI handles billing, customer service, and other services for student borrowers. Specific to this action, NSI services Plaintiff's student loans. III. LEGAL STANDARD A court may dismiss a complaint under FED. R. CIV. P. 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The factual "allegations must be enough to raise a right to relief Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 3 of 8 Page ID #:44 {40336321;1} 2 CASE NO. 2:16-CV-09625-RSWL-JPR MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 beyond a speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Dismissal with prejudice is proper if "it is clear that the complaint could not be saved by any amendment." Livid Holdings, Ltd. v. Solomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). IV. ARGUMENT A. Plaintiff Has Not Pleaded Injury In Fact for Article III Standing Plaintiff lacks standing to sue because he has not suffered a concrete injury caused by any alleged statutory violation. The standing to sue doctrine is derived from Article III of the Constitution's limitation of the judicial power of federal courts to address cases and controversies. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). Standing consists of three elements. Plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).) The first element, injury in fact, is a constitutional requirement and it is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting Lujan, 504 U.S. at 560). "'For an injury to be "particularized,' it 'must affect the plaintiff in a personal and individual way.'" Id. (quoting Lujan, 504 U.S. at 560, n.1). Meanwhile, "[a] 'concrete' injury must be 'de facto'; that is, it must actually exist." Id. (citing Black’s Law Dictionary 479 (9th ed. 2009)). Therefore, a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 4 of 8 Page ID #:45 {40336321;1} 3 CASE NO. 2:16-CV-09625-RSWL-JPR MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation." Id. at 1549. A "bare procedural violation, divorced from any concrete harm," does not satisfy the injury-in-fact requirement of Article III. Id. Here, Plaintiff claims NSI is liable for $2,500 in damages but offers no explanation for how that figure was calculated, or how it is tied to any concrete injury. Plaintiff's Complaint contains a bare allegation of a violation without even identifying what the violation is, let alone identifying how Plaintiff suffered concrete and particularized injury as a result of that violation. The claim fails because Plaintiff lacks standing to assert it. B. The Complaint Contains No Factual Allegations that NSI Falsely or Incorrectly Reported Anything Plaintiff's Complaint does not include any factual allegations about the information NSI allegedly reported or how that information was incorrect or false such that it would require "deletion." Without those factual allegations, the Complaint is nothing more than a scant single-sentence conclusion that NSI violated the FCRA. Such speculative conclusions are insufficient to state a claim upon which relief can be granted. C. Alternatively, Plaintiff Must Provide a More Definite Statement NSI alternatively moves for a more definite statement of the Complaint because it "is so vague or ambiguous that [NSI] cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). NSI cannot ascertain the nature or basis of Plaintiff's claim as presently pleaded and NSI cannot reasonably be expected to frame a proper response without Plaintiff providing those factual allegations. / / / / / / / / / / / / Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 5 of 8 Page ID #:46 {40336321;1} 4 CASE NO. 2:16-CV-09625-RSWL-JPR MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 V. CONCLUSION For the foregoing reasons, NSI respectfully requests the Court dismiss Plaintiff's Complaint in its entirety, with prejudice. In the alternative, NSI respectfully requests the Court order Plaintiff to provide a more definite statement of his claim. Dated: January 5, 2017 Respectfully submitted, AKERMAN LLP By: /s/ Christopher R. Fredrich Dennis N. Lueck, Jr. Christopher R. Fredrich Attorneys for Defendant NAVIENT SOLUTIONS, INC. Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 6 of 8 Page ID #:47 {40336321;1} 1 CASE NO. 2:16-CV-09625-RSWL-JPR CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 PROOF OF SERVICE I am employed in the County of Los Angeles, California. I am over the age of 18 and not a party to the within action. My business address is 725 South Figueroa Street, 38th Floor, Los Angeles, California 90017. On January 5, 2017, I served the following document(s) described as: NAVIENT SOLUTIONS, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Alex Isidro Dominguez 11018 Moorpark Street North Hollywood, CA 91602 Telephone: (909) 957-6815 Pro Se Plaintiff (MAIL) I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California. (OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document in sealed envelopes or packages designated by the express service carrier, addressed as stated above, with fees for overnight delivery paid or provided for. (MESSENGER SERVICE) I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed and provided them to a professional messenger service for service. A separate Personal Proof of Service provided by the professional messenger service will be filed under separate cover. (PERSONAL/MESSENGER SERVICE) Delivery was made to the attorney or at the attorney's office by serving the documents in an envelope or package clearly addressed and identifying the attorney at the addresses listed above and/or by leaving with a receptionist or an individual in charge of the office. Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 7 of 8 Page ID #:48 {40336321;1} 2 CASE NO. 2:16-CV-09625-RSWL-JPR CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 7 25 S . F IG U E R O A S T R E E T ,3 8 T H F L O O R L O S A N G E L E S ,C A L IF O R N IA 9 00 1 7 T E L (2 13 ) 6 88 -9 50 0 - F A X : (2 13 ) 62 7 -6 3 42 (FACSIMILE) Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. (E-MAIL or ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(d)(1). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” I declare under penalty of perjury that I am employed in the office of a member of the bar of this Court at whose direction this service was made and that the foregoing is true and correct. (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on January 5, 2017, at Los Angeles, California. Suzanne I. Jimenez /s/ Suzanne I. Jimenez (Type or print name) (Signature) Case 2:16-cv-09625-RSWL-JPR Document 8 Filed 01/05/17 Page 8 of 8 Page ID #:49
