United States District Court, D. Nevada
JOSEPH J. SMITH, Plaintiff,
ONE NEVADA CREDIT UNION, Defendant.
M. Navarro, Chief Judge
before the Court is the Motion to Dismiss, (ECF Nos. 6, 12),
filed by Defendant One Nevada Credit Union
(“Defendant”). Plaintiff Joseph J. Smith
(“Plaintiff”) filed a Response, (ECF No. 14), and
Plaintiff filed a Reply, (ECF No. 17). For the reasons
discussed below, the Court GRANTS in part and DENIES in part
Complaint, (ECF No. 1), brings a class action lawsuit on
behalf of himself and those similarly situated, asserting
claims under the Fair Credit Reporting Act
(“FCRA”) and challenging Defendant's alleged
practice of obtaining consumer credit information without
alleges that he obtained an auto loan from Defendant in
October 2004. (Compl. ¶ 15). By November 2008, Plaintiff
alleges that his loan was paid off and his account with
Defendant was closed. (Id. ¶ 16). Moreover,
Plaintiff received a bankruptcy discharge in October 27,
2015. (Id. ¶ 19). Accordingly, Plaintiff
asserts that even if the account had not been closed, any
relationship between Plaintiff and Defendant was extinguished
by the bankruptcy discharge. (Id. ¶¶
20-22). After his relationship with Defendant ended,
Plaintiff alleges that he did not seek credit of any type
from Defendant, that Defendant knew the account had been
closed, and yet Defendant obtained information from a credit
reporting agency on January 15, 2016, without his
authorization or a permissible purpose. (Id.
on these allegations, Plaintiff alleges that Defendant
willfully and negligently violated the FCRA. Defendant argues
in the instant Motion to Dismiss that: (1) Plaintiff lacks
standing to assert such claims; and (2) Plaintiff fails to
adequately allege the FCRA violations. (See Mot. to
Dismiss “MTD”, ECF No. 6).
12(b)(1) of the Federal Rules of Civil Procedure permits
motions to dismiss for lack of subject-matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). When subject matter
jurisdiction is challenged, the burden of proof is placed on
the party asserting that jurisdiction exists. Scott v.
Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding
that “[t]he party seeking to invoke the court's
jurisdiction bears the burden of establishing that
jurisdiction exists”). Accordingly, courts presume lack
of subject matter jurisdiction until the plaintiff proves
otherwise in response to the motion to dismiss. Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
a case dismissed for lack of subject matter jurisdiction
should be dismissed without prejudice so that a plaintiff may
reassert his claims in a competent court.” Frigard
v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per
curiam). However, where there is no way to cure the
jurisdictional defect, dismissal with prejudice is proper.
standing is a defect in subject matter jurisdiction and may
be challenged under Rule 12(b)(1). See Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
The standing doctrine has a constitutional and a prudential
component. Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 11 (2004) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559-62, (1992) (constitutional
standing), and Allen v. Wright, 468 U.S. 737, 751
(1984) (prudential standing)). To satisfy the constitutional
component, a plaintiff must meet three requirements: (1) the
plaintiff must have suffered an injury in fact; (2) that is
fairly traceable to the challenged conduct of the defendant;
and (3) it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61. The plaintiff bears the
burden of establishing these elements, FW/PBS, Inc. v.
Dallas, 493 U.S. 215, 231 (1990), and must allege
sufficient facts to demonstrate that each element has been
met, Warth v. Seldin, 422 U.S. 490, 518 (1975).
12(b)(6) of the Federal Rules of Civil Procedure mandates
that a court dismiss a cause of action that fails to state a
claim upon which relief can be granted. See North Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). When considering a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555) (emphasis added). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. Rule 8(a)(2) requires that a
plaintiff's complaint contain “a short and plain
statement of the claim showing that the pleader is entitled