Shupe v. Capital One Bank USA NA

MOTION to Dismiss Counts/Claims : III, V, VI, VII, VIII Defendant Capital One Bank USA NA Partial Motion to Dismiss

D. Ariz.November 21, 2016

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 {0005076.0021/00716185.DOCX / } D O LL A M IR & E LE Y L LP WADE M. BURGESON, SBA #015650 ENGELMAN BERGER, P.C. 3636 NORTH CENTRAL AVENUE, SUITE 700 PHOENIX, ARIZONA 85012 _____________ Ph: (602) 271-9090 Fax: (602) 222-4999 Email: wmb@eblawyers.com _____________ Attorneys for Defendant CAPITAL ONE BANK (USA), N.A. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RICHARD SHUPE, Plaintiff, v. CAPITAL ONE BANK USA, N.A., Defendant. Case No. 4:16-cv-00571-JGZ DEFENDANT CAPITAL ONE BANK (USA), N.A.’S PARTIAL MOTION TO DISMISS Defendant Capital One Bank (USA), N.A. (“Capital One”) moves pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for an order dismissing Counts III, V, VI VII, and VIII of the Amended Complaint filed by Plaintiff Richard Shupe (“Plaintiff”). Counts III and V through VIII of the Amended Complaint are subject to dismissal because they fail to state a claim on which relief can be granted, and because Plaintiff lacks standing. WHEREFORE, Capital One respectfully requests that the Court grant its motion and dismiss Counts III, V, VI, VII, and VIII of Plaintiff’s Amended Complaint with prejudice. This Motion is supported by the following memorandum of points and authorities, as well as the papers and pleadings already on file, all of which are incorporated by reference. MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION Plaintiff Richard Shupe sued Capital One related to his spouse’s Capital One credit card. In short, Plaintiff alleges that Capital One failed to properly investigate a billing dispute on his spouse’s account, resulting in incorrect credit reporting on his spouse’s credit Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 1 of 11 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 {0005076.0021/00716185.DOCX / } 2 D O LL A M IR & E LE Y L LP report and calls to Plaintiff’s cellular telephone number, which his spouse provided to Capital One. Based on these allegations, Plaintiff alleges eight causes of action. But several of his claims fail as a matter of law, and he lacks standing to bring even more because they are based only on injury allegedly suffered by his spouse. Specifically, Count III, alleging a violation of the Fair Debt Collection Practices Act (“FDCPA”) fails as a matter of law because Capital One, as a creditor and not a debt collector, is exempt from liability under the FDCPA. Count V, alleging negligence, fails as a matter of law because Capital One owes Plaintiff no duty as a non-customer. Count VII, alleging defamation, fails as a matter of law because it is preempted by the Fair Credit Reporting Act. And because Plaintiff alleges injury to his spouse, and not himself, Plaintiff lacks standing to bring Counts V, VI, VII, and VIII, alleging negligence, violation of the Fair Credit Billing Act, defamation, and violation of Ariz. Rev. Stat. § 44-1522. Counts III, V, VI, VII, and VIII of Plaintiff’s Amended Complaint should thus be dismissed.1 II. SUMMARY OF ALLEGATIONS As it must on a motion to dismiss, defendant Capital One takes the factual allegations (although not the legal conclusions) in Plaintiff’s Amended Complaint as true. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014) (“While we do accept all of the factual allegations in the complaint as true . . . we do not accept legal conclusions in the complaint as true, even if cast in the form of factual allegations.” (citation and quotation omitted)). Plaintiff’s spouse applied for a credit card from Capital One. (See Am. Compl. ¶ 4(d); p. 3.)2 At application, the spouse provided Plaintiff’s cellular telephone number ending in -6400. (See id.) Later, upon receipt of a statement that included an unauthorized charge, Plaintiff’s spouse disputed the charge with Capital One in writing. (See id.) According to 1 Capital One does not admit that Counts I, II, and IV of the Amended Complaint have merit, but it recognizes that those causes of action meet the minimum pleading requirements under Federal Rule of Civil Procedure 8. 2 Despite the Court’s order to do so, Plaintiff failed to allege his claims in “discrete paragraphs, each of which is numbered in consecutive order,” in his Amended Complaint. (Dkt. 8.) For ease, Capital One cites both the apparent paragraph number and page of the Amended Complaint. Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 2 of 11 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 {0005076.0021/00716185.DOCX / } 3 D O LL A M IR & E LE Y L LP the allegations, Plaintiff’s spouse received no response, and instead Capital One began calling Plaintiff on his cellular telephone. (See id.) Plaintiff also alleges that Capital One incorrectly reported on his spouse’s credit report after failing to properly investigate the dispute. (See id. ¶ 10(a); p. 9.) Plaintiff alleges he answered the first call, informed Capital One he was not Capital One’s customer, his telephone was a prepaid cell phone, Capital One did not have permission to call him again, and the calls distressed his spouse. (See Am. Compl. ¶ 4(h); p. 3.) Despite these instructions and later-sent written communication, calls continued. (See id. ¶¶ 4(h)-(i); pp. 3-4.) Based on these allegations, Plaintiff alleges eight causes of action: Count I- violation of the Telephone Consumer Protection Act (“TCPA”); Count II-violation 64 C.F.R. § 1200, the regulations implementing the TCPA; Count III-violation of the FDCPA; Count IV-invasion of privacy; Count V-negligence; Count VI-violation of the Fair Credit Billing Act; Count VII-Defamation; and Count VIII-violation of Ariz. Rev. Code § 44-1522, consumer fraud. III. LEGAL STANDARD A. Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Fed. R. Civ. Pro. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). “To survive a motion to dismiss [brought pursuant to Federal Rule of Civil Procedure 12(b)(6)], a 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, 129 S. Ct. 1937, 1949 (2009) (quotation omitted). This plausibility standard requires that Plaintiff “plead[] factual content [that] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. In deciding a motion to dismiss for failure to state a claim, the court’s review is limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 385 Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 3 of 11 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 {0005076.0021/00716185.DOCX / } 4 D O LL A M IR & E LE Y L LP (9th Cir. 1995). The court accepts all factual allegations pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995). Despite the deference the court must pay to the plaintiff’s allegations, a court does not assume that “the [plaintiff] can prove facts which [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Furthermore, the court is “not bound to accept as true a legal conclusion couched as a factual allegation,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 129 S. Ct. at 1949-50. Indeed, a court is not required to credit conclusory legal allegations cast in the form of factual allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). In other words, a Rule 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Under this standard, Counts III, V, and VII fail as a matter of law and should be dismissed. B. Federal Rule of Civil Procedure 12(b)(1). A motion under Rule 12(b)(1) argues that the court does not have subject-matter jurisdiction and may “attack the allegations of the complaint or may be made as a ‘speaking motion’ attaching the existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). On attack, “[t]he party asserting jurisdiction has the burden of proving all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Allow, 912 F.2d 1090, 1092 (9th Cir. 1990). A court must, as with a Rule 12(b)(6) motion, accept as true the complaint’s factual allegations. McLachlan v. Bell, 261 F.3d 908, 909 (9th Cir. 2001). A plaintiff must have standing to sue in order to satisfy the case-or-controversy requirement of Article III of the Constitution, and it is a requirement to establish subject- Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 4 of 11 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 {0005076.0021/00716185.DOCX / } 5 D O LL A M IR & E LE Y L LP matter jurisdiction. See Lujan v. Defenders Wildlife, 504 U.S. 555, 560-61 (1992). Because Plaintiff lacks standing to allege Counts V, VI, VII, and VIII on his spouse’s behalf, this Court lacks subject matter jurisdiction, and Counts V, VI, VII, and VIII should be dismissed. IV. LEGAL ARGUMENT A. Count III Fails as a Matter of Law Because Capital One is Exempt from FDCPA Liability. Plaintiff’s third cause of action purports to state a cause of action against Capital One for violation of the FDCPA. The FDCPA distinguishes between “debt collectors” and “creditors,” and regulates only the former. See 15 U.S.C. § 1692a(4), (6). A “debt collector” is one who collects debts owed to someone else: “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6); see also 15 U.S.C. §§ 1692e, 1692f (prohibiting various activities by “debt collectors”). By contrast, a “creditor” as “any person who offers or extends credit creating a debt or to whom a debt is owed.” 15 U.S.C. § 1692a(4); see also Gowing v. Royal Bank of Canada, 100 F. 3d 962 (9th Cir. 1996) (declining to apply the FDCPA to a bank collecting a debt on its own behalf). The distinction between debt collectors and creditors is fundamental to the FDCPA, and courts have consistently held that creditors are excluded from the FDCPA’s scope. See, e.g., Volden v. Innovative Fin. Sys., 440 F.3d 947, 950 (8th Cir. 2006) (noting that the FDCPA applies only to debt collectors); Schmitt v. FMA Alliance, 398 F.3d 995, 998 (8th Cir. 2005) (same); see also Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208-09 (9th Cir. 2013) (affirming motion to dismiss where plaintiffs failed to alleges facts to support that Wells Fargo was in debt-collection business and collected debts owed to another). Applying this black-letter law, courts have routinely dismissed cases brought against Capital One Bank and its affiliates under the FDCPA because Capital One Bank is a creditor, not a debt collector. See, e.g., Davidson v. Capital One Bank (USA), N.A., 797 F.3d Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 5 of 11 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 {0005076.0021/00716185.DOCX / } 6 D O LL A M IR & E LE Y L LP 1309, 1318 (11th Cir. 2015) (affirming that Capital One is not a debt collector); Neff v. Capital Acquisitions & Mgmt. Co., 352 F.3d 1118, 1121-22 & n.5 (7th Cir. 2003) (noting that Capital One is a creditor); Hightower v. Capital One Auto Fin., No. 13-3042, 2013 WL 3242500, at *9 (W.D. Tenn. June 25, 2013); Cooper v. Pressler & Pressler, LLP, 912 F. Supp. 2d 178, 185 (D. N.J. 2012); Baker v. Capital One Bank (USA), N.A., No. 1:12-cv- 971; 2012 WL 5930094, at *2 (S.D. Ind. Nov. 26, 2012); Gonzalez v. United Recovery Sys., Inc., No. 11-5996 (SRC), 2012 WL 395523, at **2-3 (D. N. J. Feb. 6, 2012); Andresakis v. Capital One Bank (USA), N.A., No. 09 CV 8411, 2011 WL 1097413, at *3 (S.D.N.Y. Mar. 23, 2011); Wellesley v. Chief Fin. Officer, No. 3:10-CV-00183, 2010 WL 2926162, at *2-3 (D. Nev. July 20, 2010); Perry v. Capital One Bank, No. 08-CV-2149, 2008 WL 4615462, at *3 (C.D. Ill. Oct. 16, 2008). The rationale of these cases applies equally here. Plaintiff alleges that his spouse applied for a credit card from Capital One, which makes Capital One a creditor. (See Am. Compl., ¶ 4(d); p. 3.) And Plaintiff does not even allege that Capital One is a debt collector for purposes of the FDCPA. Thus, any claims Plaintiff intended to bring against Capital One Bank fail as a matter of law because the FDCPA applies only to debt collectors, not creditors such as Capital One. Plaintiff’s FDCPA claim should be dismissed. B. Count V Alleging Negligence Fails as a Matter of Law Because Plaintiff is Not Capital One’s Customer and Capital One Owes Him No Duty. Plaintiff alleges a negligence claim based on his allegations that Capital One “fail[ed] to abide by federal and state laws . . . caused injury to Plaintiff[’]s spouse . . . and fail[ed] to place Plaintiff[’]s phone number on the internally required do-not-call list.” (See Am. Compl., ¶¶ 9(a)-(d); pp. 8-9.) Under Arizona law, a plaintiff must prove four elements to establish negligence: “(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). The court decides the legal question of whether a duty exists. Id. Here, the answer to that question is no. Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 6 of 11 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 {0005076.0021/00716185.DOCX / } 7 D O LL A M IR & E LE Y L LP Plaintiff alleges that his spouse has a Capital One credit card. (See Am. Compl., ¶ 4(d); p. 3.) Nowhere does he allege that he is a customer or that Capital One’s alleged actions were directed to him as Capital One’s customer. Because Plaintiff is not Capital One’s customer, Capital One owes him no duty under Arizona law, as Arizona has “rejected the argument that banks owe a duty to non-customers.” Gilbert Tuscany Lender, LLC v. Wells Fargo Bank, 2307 P.3d 1025, 1028 (Az. Ct. App. 2013). Because Plaintiff admittedly is not Capital One’s customer, no duty exists, and Plaintiff’s negligence claim fails as a matter of law and should be dismissed. To the extent Plaintiff alleges negligence on behalf of his spouse, who is a Capital One customer but is not a party to this action, the claim fails because Plaintiff lacks standing, as Capital One argues in Part IV.D. C. Count VII Alleging Defamation Fails as a Matter of Law Because it is Preempted by the Fair Credit Reporting Act. Even if Plaintiff has standing to allege defamation based on Capital One’s alleged credit reporting on his spouse’s credit report, the claim is preempted by the Fair Credit Reporting Act and thus fails as a matter of law and should be dismissed. Plaintiff’s defamation claim is based solely on Capital One’s act of providing information to the credit reporting agencies (“CRAs” or “credit bureaus”), and it is therefore expressly preempted by the FCRA, which provides that States cannot impose any “requirement” or “prohibition” “relating to the responsibility of persons who furnish information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F). The preemption provision in § 1681t(b)(1)(F) was added to the FCRA in 1996 as part of a group of amendments that simultaneously imposed new duties on furnishers of credit information, provided a new federal cause of action for some of those duties, and preempted all State claims relating to any of those duties. See 15 U.S.C. §§ 1682s-2, 1681t(b)(1)(F). The new duties arising out of the 1996 amendments require furnishers to report accurate information to CRAs, promptly investigate disputed information when they receive a dispute from a CRA, and correct inaccurate information. 15 U.S.C. § 1681s-2(a) and (b). Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 7 of 11 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 {0005076.0021/00716185.DOCX / } 8 D O LL A M IR & E LE Y L LP The new private right of action allows consumers to sue only for violations of the duty to investigate, and not for violations of the duty to report accurate information. See Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1060 (9th Cir. 2002); Thulin v. EMC Mortg. Corp., No. 06-CV-3514, 2007 WL 3037353 (D. Minn. Oct. 16, 2007) (Kyle, J.). The new preemption provision preempts all state-law claims relating to any of the new duties created by section 1681s-2 (with two exceptions relating to claims under Massachusetts and California law that are not relevant here). The preemption provision states: No requirement or prohibition may be imposed under the laws of any State with respect to any subject matter regulated under . . . section 1681s-2 of this title, relating to the responsibility of persons who furnish information to consumer reporting agencies . . . . 15 U.S.C. § 1681t(b)(1)(F). The 1996 preemption provision adds to, but does not replace, the original preemption provision that has been part of the FCRA since its enactment in 1970. That original provision provides that no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligent with respect to reporting of information against . . . any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m . . . or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in party on the report except as to false information furnished with malice or willful intent to injury such consumer. 15 U.S.C. § 1681h(e). As the Ninth Circuit has recognized, “[a]ttempting to reconcile [the two preemption provisions] has left district courts in disarray.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1166 (9th Cir. 2009). Gorman recognized that section “1681t(b)(1)(F) appears to preempt all state laws based on a creditor’s responsibilities under § 1681s-2,” while “§ 1681h(e) suggests that defamation claims can proceed against creditors as long as the Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 8 of 11 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 {0005076.0021/00716185.DOCX / } 9 D O LL A M IR & E LE Y L LP plaintiff alleges falsity and malice.” Id. The Ninth Circuit did not choose among the various bases for reconciling the provisions, but two other Courts of Appeals have, concluding that § 1681t(b)(1)(F) totally preempts state statutory and common law causes of action that fall within the conduct proscribed by § 1681s-2. See Macpherson v. JP Morgan Chase Bank, N.A., 665 F.3d 45, 47-48 (2d Cir. 2011); Purcell v. Bank of Am., 659 F.3d 622, 624-25 (7th Cir. 2011). The majority of district courts examining the issue have followed the Second and Seventh Circuits in applying the total preemption approach. See, e.g., Martinez v. Flagstar Bank, FSB, No. 2:15-cv-01934-KJM-CKD, 2016 WL 3906810, at **5-6 (E.D. Cal. July 19, 2016) (“[T]his court adopts the growing majority rule: state law claims based on alleged injury arising purely from the reporting of credit information by a furnisher of credit are preempted by the FCRA.” (quotation omitted)); Mamboleo v. Wells Fargo Bank, NA, No. CV-14-00648-PHX-DJH, 2015 WL 9691022, at *5 (D. Ariz. Feb. 25, 2015) (Humetewa, J.) (adopting total preemption approach and dismissing state law claims); Warring v. Green Tree Servicing LLC, No. CV-14-0098-PHX-DGC, 2014 WL 2605425, at *4 (D. Ariz. June 11, 2014) (Campbell, J.) (dismissing state law declaratory judgment claim). Under the total preemption approach, Plaintiff’s defamation claim against Capital One is squarely preempted because it arises out of Capital One’s duties as furnisher under section 1681s-2. Plaintiff alleges that Capital One “placed negative and false information” on his spouse’s credit report. (See Am. Compl., ¶ 11(a), p. 9.) Under section 15 U.S.C. § 1681s-2(a), Capital One is under a duty to refrain from knowingly furnishing inaccurate, which is precisely what Plaintiff alleges Capital One did. Because Plaintiff’s defamation claim squarely arises out of Capital One’s duty under section 1681s-2(a), it is preempted and should be dismissed. D. Plaintiff Lacks Standing to Bring Counts V, VI, VII, and VIII on Behalf of His Spouse. Plaintiff alleges throughout his Amended Complaint that his spouse has been injured by Capital One. (See, e.g., Am. Compl. ¶¶ 3, 4(h), 4(k), 4(o), 8(d), 9(c), 10(a), 11(b); pp. 2- Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 9 of 11 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 {0005076.0021/00716185.DOCX / } 10 D O LL A M IR & E LE Y L LP 4, 7-9.) Based on the injuries to his spouse, Plaintiff alleges negligence (Count V), violation of the Fair Credit Billing Act (Count VI), defamation (Count VII), and violation of Ariz. Rev. Stat. § 44-1522 (Count VIII). Because these claims are in part or in whole based on Plaintiff’s allegations that Capital One injured his spouse or violated the law in dealing with his spouse, Plaintiff lacks standing to pursue these claims, and they should be dismissed. To establish standing under Article III, a plaintiff must establish: “1) an injury-in- fact, 2) causation between the injury and the alleged wrongful conduct, and 3) the injury is likely redressable by the court.” Advocates for Am. Disabled Individuals LLC v. Price Co., No. CV-16-02141-PHX-GMS, 2016 WL 5939467, at *2 (D. Ariz. Oct. 13, 2016) (Snow, J.) (citing Lujan, 504 U.S. at 560-61). It is Plaintiff’s burden to establish standing. See Lujan, 504 U.S. at 561. An injury in fact is concrete and particularized, and actual or imminent. Id. at 560. To establish particularity, the “party seeking review must allege facts showing that he is himself adversely affected.” Sierra Club v. Morton, 405 U.S. 727, 740 (1972) (emphasis added). A concrete injury is “real, and not abstract.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). Plaintiff’s claims alleging negligence, violation of the Fair Credit Billing Act, defamation, and consumer fraud under Arizona state law all rest on allegations that Capital One wronged his spouse. He alleges that Capital One committed acted negligently toward his spouse by violating unspecified duties under state and federal law. (See Am. Compl. ¶¶ 5(a)-(c); pp. 8-9.) He alleges that Capital One violated the Fair Credit Billing Act by its “refusal to reply to the written dispute of charges on the spouse of Plaintiff[’]s billing statement,” despite his spouse’s monthly letters to Capital One. (See id. ¶ 10(a); p. 9.) He alleges that Capital One defamed his spouse’s credit with negative credit reporting. (See id. ¶ 11(a); p. 9.) And he alleges that Capital One violated Ariz. Rev. Stat. § 44-1522 “in the process of providing credit card services,” but the only person alleged to have a Capital One credit card is Plaintiff’s non-party spouse. (See id. ¶ 12 (b); p. 10.) Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 10 of 11 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 {0005076.0021/00716185.DOCX / } 11 D O LL A M IR & E LE Y L LP Plaintiff cannot establish standing to bring claims on behalf of his spouse, because he has not suffered an injury-in-fact. Any injuries suffered based on Counts V, VI, VII, and VIII, and Capital One denies that any were, were suffered by Plaintiff’s spouse. Because Plaintiff has suffered no injury-in-fact, he does not have standing to allege violation of the Fair Credit Billing Act, defamation, and consumer fraud under Arizona state law, or negligence to the extent that claim relies on injury to Plaintiff’s spouse. Counts V, VI, VII, and VIII of Plaintiff’s Amended Complaint should thus be dismissed. V. CONCLUSION For the foregoing reasons, Capital One respectfully requests that its motion to dismiss be granted in its entirety and Counts III, V, VI, VII, and VIII of Plaintiff’s Amended Complaint be dismissed with prejudice. DATED this 21st day of November 2016. ENGELMAN BERGER, P.C. By /s/ SBA #015650 Wade M. Burgeson Attorneys for Capital One Bank (USA), N.A. CERTIFICATE OF SERVICE I hereby certify that on the 21st day of November, 2016, I electronically transmitted the foregoing Defendant Capital One Bank (USA), N.A.’s Partial Motion to Dismiss to the U.S. District Court Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Richard Shupe 3657 S. Double Echo Rd. Tucson, AZ 85735 mmm9088@gmail.com /s/ Lisa G. Morgan Case 4:16-cv-00571-JGZ Document 13 Filed 11/21/16 Page 11 of 11