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Middleton v. LexisNexis Risk Solutions, Inc.

United States District Court, D. Nevada

January 31, 2018

ERVIN MIDDLETON, Plaintiffs,
v.
LEXISNEXIS RISK SOLUTIONS, INC., Defendants.

          ORDER

         Presently before the court is defendant LexisNexis Risk Solutions Inc.'s (“LexisNexis”) motion to dismiss. (ECF No. 8). Plaintiff Ervin Middleton filed a response (ECF No. 10). LexisNexis has not filed a reply, and the time to do so has since passed.

         Also before the court is plaintiff's motion “that the court order defendant to provide proof of agency.” (ECF No. 11). LexisNexis filed a response (ECF No. 16). Plaintiff has not replied, and the time for doing so has since passed.

         Also before the court is plaintiff's motion for judgment on the pleadings. (ECF No. 14). LexisNexis filed a response (ECF No. 17), to which plaintiff replied (ECF No. 18).

         Also before the court is plaintiff's motion to remand the case as to all defendants except Nexis Lexis Risk Solutions [sic]. (ECF No. 19). Defendants LexisNexis and American Express Company (“AmEx”) filed responses (ECF Nos. 20, 21), to which plaintiff replied (ECF No. 28).

         Also before the court is defendant AmEx's motion to dismiss plaintiff's first amended cause of action. (ECF No. 23). Plaintiff filed a response (ECF No. 29), to which AmEx replied (ECF No. 36).

         Also before the court are five motions for entry of clerk's default filed by plaintiff. (ECF Nos. 30, 31, 32, 33, 34).

         Also before the court is defendants Capital One and Capital One Bank (USA), N.A.'s (collectively, “Capital One”) motion to dismiss. (ECF No. 38). Plaintiff has not filed a response, and the time for doing so has since passed.

         Also before the court are four motions for default judgment filed by plaintiff. (ECF Nos. 56, 57, 58, 59).

         I. Facts

         In the instant dispute, plaintiff brings a Fair Credit Reporting Act claim against LexisNexis.[1] (ECF No. 6-2). Plaintiff alleges that defendant LexisNexis posted inaccurate information on both Experian and Equifax once a month, for at least 48 months each, for a total of 96 violations.[2] Id. Plaintiff's complaint cites 15 U.S.C. § 1681s-2ii as the applicable statute that defendant violated. Id.

         Plaintiff filed the underlying complaint in state court on June 15, 2017, alleging one cause of action (“trespass on the case”) against LexisNexis. (ECF No. 6-2). Plaintiff filed service of process as to LexisNexis, which its agent transmitted to LexisNexis on June 22, 2017. (ECF No. 6-2).

         Prior to defendant LexisNexis' petition for removal, plaintiff filed an amended complaint that names LexisNexis, AmEx, and Capital One as defendants. (ECF No. 38-1) (declaration of Brandon Fernald, which contains the amended complaint). To date, plaintiff has not filed service of process of the first amended complaint as to any defendant. (ECF Nos. 12, 23, 38).

         Defendant LexisNexis filed a petition for removal on July 13, 2017. (ECF No. 6).

         II. Legal Standard

         a. Remand to state court

         Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”

         A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. § 1447(c). Remand to state court is proper if the district court lacks jurisdiction. Id. Pursuant to 28 U.S.C. 1447(c), “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).”

         b. Failure to state a claim

         A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable ...


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