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Galicia v. Plusfour, Inc.

United States District Court, D. Nevada

July 23, 2018

PLUSFOUR, INC., Defendants.


         Presently before the court is defendant PlusFour Inc.'s motion to dismiss. (ECF No. 8). Plaintiff Agustin Galicia II filed a response (ECF No. 18), to which defendant replied (ECF No. 19).

         I. Facts

         The instant action involves allegations of inaccurate credit reporting in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (2011) (the “FDCPA”), and the Fair Credit Reporting Act, 15 U.S.C. § 1681 (2011) (the “FCRA”).

         Plaintiff alleges that defendant erroneously reported three collection accounts on plaintiff's national credit profiles. (ECF No. 7 at 3). Plaintiff also alleges that defendant's report included incorrect and inaccurate debt balances because the charges related to these three accounts were the result of identity theft. (ECF No. 7 at 2). According to plaintiff, defendant reported the first two erroneous accounts in 2013, and defendant reported the third erroneous account “later in 2014.”[1]Id.

         Plaintiff asserts that he contacted defendant twice to dispute the erroneous accounts. Id. The first time plaintiff reports that he contacted defendant about the dispute was in April 2014. Plaintiff claims that he contacted defendant a second time to dispute the erroneous accounts after defendant reported the third erroneous account in 2014. Plaintiff also claims, in his response to defendant's motion, that he disputed these three erroneous accounts with the national credit agencies (i.e., credit reporting agencies or “CRA's”), including TransUnion, Experian, and Equifax in September of 2016. Id.; (ECF No. 7 at 3; ECF No. 18 at 13).

         Plaintiff alleges that defendant unlawfully ignored his dispute in violation of the FDCPA, the FCRA, and industry standards, causing harm to plaintiff's credit, impairing plaintiff's access to financing, as well as harassing, abusing and oppressing plaintiff until plaintiff suffered “meaningful emotional distress, ” including excessive worry, frustration, sleeplessness, anger, humiliation, chagrin, embarrassment, and “other mental anguish.” (ECF No. 7 at 3-5).

         Plaintiff further asserts that defendant continued to report the disputed balance to Equifax, failed to conduct an adequate investigation of the debts in dispute, and failed to remove the erroneous debts even after defendant confirmed the debts were a result of identity theft and did not belong to plaintiff. (ECF No. 17).

         On September 26, 2017, plaintiff filed his original complaint. (ECF No. 1). Plaintiff filed the underlying amended complaint on January 5, 2018, for damages, alleging two claims for relief against defendant: (1) violations of the FDCPA; and (2) violations of the FCRA. (ECF No. 7).

         In the instant motion, defendant moves to dismiss plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 8).

         II. Legal Standard

         When considering a Rule 12(b)(6) motion for failure to state a claim, the court must accept as true all factual allegations in the complaint as well as all reasonable inferences that may be drawn from such allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150, n.2 (9th Cir. 2000). Such allegations must be construed in the light most favorable to the moving party. Shwarz v. U.S., 234 F.3d 428, 435 (9th Cir. 2000). Generally, the court should only look to the contents of the complaint during its review of a 12(b)(6) motion to dismiss; however, the court may consider documents attached to the complaint or referred to in the complaint whose authenticity no party questions. Id.; see also Durning v. First Bos. Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

         The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The issue is whether a claimant is entitled to offer evidence to support the claims, not whether the claimant will ultimately prevail. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (quotations omitted).

         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). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancements.'” Id. (quoting Twombly, 550 U.S. at 557).

         “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 ‚Äústate a claim to relief that is ...

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