United States District Court, D. Nevada
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.
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.
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).
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).
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).
before the court are five motions for entry of clerk's
default filed by plaintiff. (ECF Nos. 30, 31, 32, 33, 34).
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
before the court are four motions for default judgment filed
by plaintiff. (ECF Nos. 56, 57, 58, 59).
instant dispute, plaintiff brings a Fair Credit Reporting Act
claim against LexisNexis. (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. Id. Plaintiff's
complaint cites 15 U.S.C. § 1681s-2ii as the applicable
statute that defendant violated. Id.
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).
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).
LexisNexis filed a petition for removal on July 13, 2017.
(ECF No. 6).
Remand to state court
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.”
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
Failure to state a claim
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).
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).
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.
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 ...