Bromfield, et Al. v. Toyota Motor Sales Company

Motion to Dismiss for Failure to State a Claim . Oral Argument requested.

D. Or.August 12, 2016

Page 1 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Michael C. Lewton, OSB No. 872860 mlewton@cosgravelaw.com Cosgrave Vergeer Kester LLP 500 Pioneer Tower 888 SW Fifth Avenue Portland, OR 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Attorneys for Defendant Toyota Motor Credit Corporation, erroneously sued as Toyota Motor Sales Company UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION DAMION BROMFIELD and ALICIA CARR, Plaintiffs, v. TOYOTA MOTOR CREDIT CORPORATION, Defendant. Case No. 3:16-cv-00121-BR DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) Oral Argument Requested MOTION In compliance with Local Rule 7-1, the parties made a good faith effort through a telephone conference to resolve the dispute and have been unable to do so. When conferring about this Motion, the parties discussed the issues that are the subject of this Motion. Defendant Toyota Motor Credit Corporation (“TMCC”) moves for an order dismissing the First Amended Complaint (“FAC”) filed by plaintiffs Damion Bromfield and Alicia Carr (“Plaintiffs”) pursuant to Federal Rules of Civil Procedure 12(b)(6) on the grounds that Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 1 of 9 Page 2 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Plaintiffs’ FAC, and the single cause of action-for violation of the Fair Credit Reporting Act (“FCRA”), 15 USC § 1681 et seq.-asserted therein, fails to state a claim upon which relief may be granted. This Motion is based on the Memorandum of Points and Authorities filed herewith, the complete files and records in this action, and any further argument that the Court may properly receive at or before the time of the hearing on the Motion. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs Damion Bromfield and Alicia Carr (“Plaintiffs”) bring their First Amended Complaint (“FAC”) against defendant Toyota Motor Credit Corporation (“TMCC”) but do not allege sufficient facts to state a cause of action for their single Fair Credit Reporting Act (“FCRA”), 15 USC § 1681 et seq., claim. First, albeit on extremely limited facts, it appears that Plaintiffs allege that TMCC reported inaccurate information regarding their TMCC account and, as such, violated Section 1681s-2(a) of the FCRA. Section 1681s-2(a), however, does not create a private right of action and may only be enforced by federal agencies and certain state officials. Plaintiffs therefore lack standing to bring their claim under Section 1681s-2(a) and, for this reason, Plaintiffs’ FAC must be dismissed. Second, even if there were a private right of action under Section 1681s-2(a) or if Plaintiffs had intended to bring a claim under some other provision of the FCRA, Plaintiffs simply have not pled sufficient facts to state a claim.1 Specifically, Plaintiffs primarily focus their FAC on the purported injuries they suffered, but fail to identify any wrongful conduct by 1 In the first instance, Plaintiffs cite only broadly to Section 1681s-2 and fail to identify which provision of Section 1681s-2 TMCC purportedly violated. Section 1681s-2 contains dozens of subsections that create a multitude of separate and distinct obligations. Without identifying the particular provision of the FCRA that TMCC purportedly violated TMCC cannot be put on notice regarding the claims against it. Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 2 of 9 Page 3 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 TMCC. More broadly, Plaintiffs fail to make any allegation identifying the specific information reported, when it was reported, or whether and why it was inaccurate. Without alleging this most basic information, Plaintiffs cannot state a claim against TMCC. For this separate reason, Plaintiffs’ claims must be dismissed. Plaintiffs fail to state a claim for violation of the FCRA, and their FAC should be dismissed without leave to amend. II. FACTUAL ALLEGATIONS Pro se Plaintiffs’ threadbare FAC alleges that, at some unspecified time, Plaintiffs purchased a vehicle that was financed through TMCC. FAC at ¶1. They do not identify an account number associated with the financing or which of the Plaintiffs’ names were listed on the account. See FAC, generally. Plaintiffs allege that they made timely payments on the account. FAC at ¶2. Plaintiffs then allege various damages they claim to have suffered. FAC at ¶¶3-6. Regarding credit reporting, Plaintiffs then allege only that “information” was reported to an unspecified credit bureau in October or November 2015. FAC at ¶7. Plaintiffs do not identify what information was reported. See FAC, generally. Plaintiffs do not specify why the information reported was inaccurate. See FAC, generally. And Plaintiffs do not allege that TMCC knew or had reason to believe that the information purportedly reported was inaccurate. See FAC, generally. Plaintiffs then appear to copy and paste information from a consumer website describing FCRA claims and damages available thereunder. FAC at p.4. It is unclear, however, the type(s) of damages Plaintiffs actually seek or the amount sought, and Plaintiffs fail to make a request for relief. See FAC, generally. /// /// Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 3 of 9 Page 4 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 III. LEGAL STANDARD ON MOTION TO DISMISS A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint to determine whether there is a “lack of cognizable legal theory,” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8. The function of this pleading requirement is to “give the defendant fair notice of what the…claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); see also Twombly, 550 U.S. at 555. /// /// /// /// /// /// Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 4 of 9 Page 5 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 IV. LEGAL ARGUMENT A. Plaintiffs’ FCRA Claim Fails as a Matter of Law Because There Is No Private Right of Action Under Section 1681s-2(a) and Because Plaintiffs Fail to Allege Facts Sufficient to State a Claim Under Any Section of the FCRA 1. There Is No Private Right of Action Under Section 1681s-2(a) Against a Furnisher of Credit Information and Plaintiffs Therefore Lack Standing to Sue Section 1681s-2(a) of the FCRA, titled “Duty of furnishers of information to provide accurate information,” imposes the following obligation on a furnisher of credit information, such as TMCC: “A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A). In the FAC, Plaintiffs allege that “Section 1681s-2 applies,” which “imposes obligations on the furnishers to provide correct and accurate information to the credit reporting agencies.” FAC at p.3. Plaintiffs also allege that TMCC “reported false information to the credit burera (sic).” FAC at ¶6. The allegations as pled indicate that Plaintiffs are attempting to allege a cause of action against TMCC under Section 1681s-2(a) for allegedly furnishing inaccurate credit information to a credit reporting agency. There is, however, no private right of action under section 1681s-2(a) of the FCRA. Nelson v. Chase Manhattan Mortg. Corp., 282 F. 3d 1057, 1060 (9th Cir. 2002). Instead, the provisions of subsection 1681s-2(a) are “enforced exclusively…by the Federal agencies and officials and [certain] State officials.” 15 U.S.C. § 1681s-2(d); see also Nelson, 282 F. 3d at 1060 (“Congress did not want furnishers of credit information exposed to suit by any and every consumer dissatisfied with the credit information furnished. Hence, Congress limited the enforcement of the duties imposed by § 1681s-2(a) to governmental bodies”); Gorman v. Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 5 of 9 Page 6 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Wolpoff & Abramson, LLP, 584 F. 3d 1147, 1154 (9th Cir. 2009); McNall v. Credit Bureau of Josephine County, 689 F. Supp. 2d 1265 (D. Or. 2010) (“no private right of action exists to remedy a violation of this provision. Instead, subsection (a) is enforced exclusively by federal agencies and certain state officials”). Consequently, Plaintiffs lack standing to bring a claim under Section 1681s-2(a) of the FCRA, and their claim for violation of the FCRA fails as a matter of law and should be dismissed. 2. Plaintiffs Also Fail to Plead Facts Sufficient to State a Claim under Any Provision of the FCRA A complaint is sufficient only if it gives the defendant “fair notice of what the … claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 US 544, 555 (2007) (internal quotes omitted). FRCP 8(a)(2) requires a “showing that the pleader is entitled to relief,” and the Supreme Court has stated that “(w)ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Twombly, 550 US at 556. Plaintiff must also provide “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 US 662, 678 (2009); Valadez- Lopez v. Chertoff, 656 F3d 851, 858-859 (9th Cir. 2011). Further, even pro se pleadings “must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. United States Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Also, specifically, in order to plead a claim arising under 1681s -2, a plaintiff must allege facts showing that the defendant reported inaccurate information. See Carvalho v. Equifax Information Services, LLC, 629 F.3d 876, 890 (9th Cir. 2010) (holding that although the FCRA “does not on its face require that an actual inaccuracy exist for a plaintiff to state a claim, many courts, including our own, have imposed such a requirement”); see also Bowers v. Experian Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 6 of 9 Page 7 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Information Solutions, Inc., 2009 WL 2136632 at *3-4 (D.Or. July 15, 2009) citing Howard v. Blue Ridge Bank, 371 F.Supp.2d 1139, 1143 (S.D. Cal. 2005) (finding the conclusory allegations to be insufficient where the plaintiff failed to allege the specifics or the basis of the dispute, and dismissing FCRA claim) and citing Gorman v. Wolpoff & Abramson, LLP, 370 F.Supp.2d 1005, 1010 (N.D. Cal. 2005), aff'd in part, rev'd in part, 552 F.3d 1008 (9th Cir. 2009) (finding that FCRA claims failed because they were based on non-descriptive phrases and legal conclusions and because the plaintiff failed to give notice of even one particular statement that was false). Here, Plaintiffs have failed to plead any facts sufficient to give rise to a cause of action under the FCRA, or to put TMCC on notice of the wrongful conduct alleged against it. Plaintiffs allege only that “information” was reported to an unspecified credit bureau in October or November 2015. FAC at ¶7. Plaintiffs do not identify what information was reported. See FAC, generally. Plaintiffs do not specify why the information reported was inaccurate. See FAC, generally. And Plaintiffs do not allege that TMCC knew or had reason to believe that the information purportedly reported was inaccurate. Plaintiffs have also failed to set forth a demand for relief sought under Rule 8(a)(3). F.R.C.P. Rule 8(a)(3). Plaintiffs only appear to copy and paste information from some secondary source that describes claims under the FCRA and damages available thereunder. Plaintiffs do not plead the type(s) of damages they actually seek or the amount sought. Plaintiffs’ claims therefore fail as a matter of law for failure to plead facts sufficient to state a cause of action. /// /// /// /// /// Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 7 of 9 Page 8 - DEFENDANT TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6) 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 V. CONCLUSION Plaintiffs’ single FCRA claim fails as a matter of law because Plaintiffs’ lack standing to sue under Section 1681s-2(a) and because Plaintiffs fail to allege the essential facts necessary to plead a FCRA claim. As a result, TMCC requests that its Motion to Dismiss be granted and the FAC be dismissed without leave to amend. DATED: August 12, 2016 COSGRAVE VERGEER KESTER LLP /s/ Michael C. Lewton Michael C. Lewton, OSB No. 872860 Telephone: (503) 323-9000 Fax: (503) 323-9019 E-mail: mlewton@cosgravelaw.com Attorneys for Defendant Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 8 of 9 Page 1 - CERTIFICATE OF SERVICE 2651239 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the date indicated below by: mail with postage prepaid, deposited in the US mail at Portland, Oregon, hand delivery, facsimile transmission, overnight delivery, electronic filing notification. If served by facsimile transmission, attached to this certificate is the printed confirmation of receipt of the document(s) generated by the transmitting machine. I further certify that said copy was placed in a sealed envelope delivered as indicated above and addressed to said attorney(s) at the address(es) listed below: Damion Bromfield and Alicia Carr 15050 SW Mallard Dr., #203 Beaverton, OR 97007 Of Attorneys for Plaintiffs Pro Se DATED: August 12, 2016 /s/ Michael C. Lewton Michael C. Lewton Case 3:16-cv-00121-BR Document 29 Filed 08/12/16 Page 9 of 9