United States District Court, D. Nevada
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.
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”).
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.”Id.
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).
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).
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).
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).
instant motion, defendant moves to dismiss plaintiff's
claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 8).
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
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
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).
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 ...