Opinion
Civil Action No. 19-cv-00106-RM-NYW
05-10-2019
BRIAN BATH, on behalf of himself and all other similarly situated individuals; Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC.; TRANS UNION, LLC; LEXISNEXIS RISK SOLUTIONS, INC.; AMERICAN EXPRESS COMPANY; PAYPAL; WELLS FARGO MERCHANT SERVICES, LLC; REALPAGE, INC.; TD BANK; FIRST PREMIER BANK; and Defendants.
ORDER TO SHOW CAUSE, RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, AND ORDER
This matter comes before the court on several pending motions by both Plaintiff Brian Bath ("Plaintiff" or "Mr. Bath") and the various Defendants:
(1) Motion of Defendant American Express National Bank ("American Express") to Dismiss Plaintiff's Amended Complaint ("American Express' Motion to Dismiss") [#88, filed February 19, 2019];
(2) LexisNexis Risk Solutions, Inc.'s Motion to Dismiss Plaintiff's First Amended Class Action Complaint ("LexisNexis' Motion to Dismiss") [#89, filed February 19, 2019];
(3) Plaintiff Brian Bath Answer and Motionto Strike From the Record Defendant Experian Information Solutions Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath ("Plaintiff's First Motion for Summary Judgment") [#91, filed February 19, 2019];
Because Mr. Bath is a non-attorney proceeding pro se, this court this court construes his filings liberally and without acknowledging or correcting spelling or grammatical errors. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, the court does not act as his advocate, and holds him to the same substantive law and procedural rules as a represented party. See Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
(4) Plaintiff Brian Bath Answer and Motionto Strike From the Record Defendant Trans Union Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath ("Plaintiff's Second Motion for Summary Judgment") [#106, filed February 25, 2019];
(5) Defendant Trans Union LLC's Objections and Motion to Strike Plaintiff's Summary Judgment Evidence ("Trans Union's Motion to Strike") [#136, filed March 18, 2019];
(6) Defendant Equifax Information Services LLC's Motion to Enforce the Settlement Agreement ("Equifax's Motion to Enforce") [#138, filed March 19, 2019];
(7) Plaintiff's Unopposed Motion to Amend "Compaint" ("Plaintiff's Motion to Amend") [#144, filed March 21, 2019];
(8) Well Fargo Bank, N.A.'s Motion to Enforce Settlement ("Wells Fargo's Motion to Enforce") [#145, filed March 21, 2019]; and
(9) Defendants' Joint Motion for Protective Order [#171, filed May 7, 2019].
These Motions were referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b); the Order Referring Case dated January 29, 2019 [#59]; and various Memoranda [#92, #107, #137, #143, #149, #172]. Upon consideration of the Motions, this court respectfully RECOMMENDS that: American Express' Motion to Dismiss be GRANTED; LexisNexis' Motion to Dismiss be GRANTED; Plaintiff's First Motion for Summary Judgment be DENIED; Plaintiff's Second Motion for Summary Judgment be DENIED; Trans Union's Motion to Strike be DENIED; Equifax's Motion to Enforce be STRUCK; and Plaintiff's Motion to Amend be DENIED; and Wells Fargo's Motion to Enforce be GRANTED. In light of the Recommendation, this court GRANTS the Joint Motion for Protective Order, and STAYS discovery pending the resolution of this Recommendation by the presiding judge, the Honorable Raymond Moore.
BACKGROUND
Plaintiff Brian Bath initiated a Class Action Complaint against various defendants, including but not limited to Experian Information Solutions, Inc. ("Experian"), in Denver District Court on December 10, 2018, alleging theft and fraud; fraudulent conversion; and violations of the Federal Credit Report Act, 15 U.S.C. § 1681 et seq. [#3]. On January 4, 2019, Experian filed an Answer to the Complaint. [#20]. On January 11, 2019, Experian removed the action to this court, based on the FCRA claims. [#1]. On January 18, 2019, Trans Union LLC ("Trans Union") filed its Answer and Defenses to Plaintiff's Complaint. [#46]. Other defendants, including Wells Fargo Merchant Services, LLC ("Wells Fargo") and Lexis Nexis Risk Solutions ("LexisNexis") filed motions to dismiss. See, e.g., [#38, 48].
For the sake of clarity, this court focuses its discussion of the factual background on Parties that have not been dismissed from the action.
Plaintiff then moved to amend his Complaint on January 28, 2019, representing that his request was unopposed. [#57]. Three days later, Mr. Bath also moved to strike the motions to dismiss. [#64; #65; #66; #67]. Though certain defendants took issue with the characterization of Plaintiff's motion to amend as "unopposed," they acknowledged that Plaintiff was permitted to amend as a matter of course under Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure. See e.g., [#61, #62]. On February 4, 2019, the presiding judge, the Honorable Raymond P. Moore, granted Plaintiff's Motion to Amend, and denied the pending motions to dismiss and motions to strike as moot. Plaintiff's operative First Amended Class Complaint was docketed that same day. [#71].
The First Amended Class Complaint asserted claims against Experian; Trans Union; LexisNexis; American Express; Bank of America ("BOA"); J.P. Morgan Chase National Corporate Services ("Chase"); OneMain Financial Services, Inc. ("OneMain"); Paypal; Synchrony Bank ("Synchrony"); Wells Fargo; Capital One, N.A. ('Capital One"); RealPage, Inc. ("RealPage"); TD Bank; First Premier Bank ("First Premier"); and Barclays Bank ("Barclays") (collectively, "Defendants"). [#71]. In Count One brought against Experian and Trans Union, Plaintiff alleges various willful violations of the FCRA. [Id. at 8]. In Count Two, Mr. Bath alleges various violations of the FCRA against American Express, OneMain, Barclays, TD Bank, Wells Fargo, Chase, LexisNexis, Capital One, BOA, Realpage, First Premier, Synchrony, and Paypal. [Id.at 9-10]. Counts Three and Four are a state law claims for defamation brought against various Defendants. [Id. at 11-12]. Counts Five and Six assert negligence on the part of the Defendants [id. at 13-14], and Counts Seven and Eight allege invasion of privacy/false light against the Defendants. [Id. at 15-16]. Mr. Bath sought actual, statutory, and punitive damages, as well as injunctive relief. [Id. at 17]. Equifax, CitiBank N.A., and Discover Financial Services were named in the original Complaint but were not named in the First Amended Class Complaint. Compare [#1] with [#71].
After the docketing of the First Amended Class Complaint, numerous Defendants settled with Mr. Bath and were dismissed from the action: BOA [#111, #114]; OneMain [#84, #95]; Chase [#96], Barclays [#103]; Capital One [#135, #140]; and Synchrony [#154, #156]. There is no indication on the docket that Defendants Paypal, Realpage, First Premier, or TD Bank have been served. On February 11, 2019, Experian filed an Answer to the First Amended Class Complaint. [#83]. On February 19, 2019, American Express and LexisNexis filed separate Motions to Dismiss [#88, #89], and Trans Union answered the First Amended Class Complaint. [#90]. That same day, Mr. Bath moved to strike Experian's Answer and sought summary judgment against it. [#91]. Then, on February 25, 2019, Mr. Bath filed a substantially similar Motion to Strike against Trans Union [#106], triggering Trans Union to file its Motion to Strike Summary Judgment Evidence [#136].
The court held a Status Conference on March 11, 2019, in which the Parties and the court discussed certain Defendants' position that their settlements with Mr. Bath precluded any further action against them. [#131]. During that discussion, the court noted that one of those entities, Equifax, was not a party to the action, having not appeared as a defendant in the First Amended Class Complaint. That same day, this court denied Mr. Bath's motions [#91, #106], insofar as they sought to strike Experian's and Trans Union's Answers to the First Amended Class Complaint. But to the extent that Plaintiff moved for summary judgment against Experian and Trans Union, Judge Moore permitted those to proceed. [#142].
Equifax and Wells Fargo have respectively moved to enforce settlement agreements with Mr. Bath. [#138; #145]. On March 21, 2019, Plaintiff filed an "Unopposed" Motion to Amend, seeking to docket a Second Amended Class Complaint. [#144]. But on March 21 and 25, American Express and LexisNexis advised the court through Notices that they did, in fact, oppose the Motion to Amend. [#150; #151]. American Express and LexisNexis each filed an Opposition to the Motion to Amend [#157; #158].
During a second Status Conference held on April 24, 2019, this court declined to proceed with the scheduling for the case given the procedural history and the pending motions. [#165]. During that same conference, this court encouraged the Parties to minimize their filings so that this Recommendation could issue as to pending motions so that the Parties and the court could better understand and address the contours of the case. [Id.]. This court now turns to its Recommendation.
ANALYSIS
I. Motions to Dismiss
A. Legal Standards
1. Rule 8
As mentioned above, "[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall, 935 F.2d at 1110 (citation omitted). But "[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id.
Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint "must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought ...." Fed. R. Civ. P. 8(a). The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that "[e]ach allegation must be simple, concise, and direct." Read together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. A decision to dismiss a complaint pursuant to Rule 8 is within the trial court's sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).
2. Rule 12(b)(6)
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a pleading must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560 (2007)). While allegations that are "so general that they encompass a wide swath of conduct, much of it innocent," will not be sufficient, Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citation and quotation omitted), the statement need only give fair notice of what the claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Though the court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff," Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)), a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Hall, 935 F.2d at 1110 (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Hall instructs that the court should reasonably read the pro se litigant's pleadings to state "a valid claim on which the plaintiff could prevail...despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. Notwithstanding this accommodation, the court's role is not to advocate for the pro se litigant. Id.
B. American Express' Motion to Dismiss
American Express moves to dismiss the First Amended Complaint against it pursuant to Rule 8 and 12(b)(6) of the Federal Rules of Civil Procedure. [#88]. Specifically, American Express argues that dismissal under Rule 8 is appropriate because Mr. Bath has failed to provide any factual support for its claims of violations of the FCRA, negligence, defamation and invasion of privacy against it. [Id. at 2]. American Express also argues that dismissal of the FCRA claim under Rule 12(b)(6) is appropriate because there is no private right of action for alleged violations of credit information furnisher's duties under the statute; that Plaintiff fails to state a claim for negligence or for invasion of privacy/false light. [Id. at 5]. It also argues that Plaintiff's state law claims of negligence, defamation and invasion of privacy are all preempted by the FCRA. [Id. at 6-7]. Mr. Bath did not substantively respond to the Motion to Dismiss, though he filed "Plaintiff Brian Bath Answer and MotiontoStrike From the Record Defendant American Express Company Motion to Dismiss and in the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath" ("Plaintiff's Response to American Express' Motion to Dismiss") [#98].
In reviewing the First Amended Class Complaint, this court respectfully agrees that it is appropriate to recommend dismissal for all claims asserted against American Express under both Rule 8(a) and Rule 12(b)(6). The First Amended Class Complaint is devoid of any factual allegations specific to American Express. [#71]. It does not identify the inaccurate information furnished by American Express to any credit reporting agency [id. at ¶ 26]; it does not factually describe Plaintiff's efforts to dispute the inaccurate information [id. at ¶ 28]; it does not identify or describe the correspondence that American Express allegedly sent to Plaintiff "indicating their intent to continue publishing the inaccurate information" [id. at ¶ 30]; and it does not allege any facts to support Plaintiff's assertion that American Express failed to conduct timely and reasonable investigations [id. at ¶ 32]. Twombly superseded any precedent by the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") that suggested that a complaint containing conclusory allegations could withstand a motion to dismiss under Rule 8(a) as long as it was not factually impossible on its face, Phillips v. Bell, 365 F. App'x 133, 138 (10th Cir. 2010), and instead, recognized a "threshold requirement" that "the plain statement possess enough heft to show that the pleader is entitled to relief." Twombly, 550 U.S. at 545 (internal quotation marks omitted).
Dismissal under Rule 12(b)(6) is also warranted. Again, the First Amended Complaint fails to plead sufficient facts, taken as true, to suggest that Mr. Bath is entitled to relief against American Express for any of the asserted claims. More specifically, though 15 U.S.C. § 1681s-2(b) imposes a duty on furnishers to reasonably investigate and report incomplete or inaccurate information after receiving notice of a consumer dispute from a credit reporting agency. Id. But all Mr. Bath alleges, in a vague and conclusory fashion, is that American Express, along with a series of other credit furnishers, failed to conduct timely and reasonable investigations after being contacted by "relevant credit reporting agencies concerning Plaintiff's disputes." [#71 at ¶ 32]. Furthermore, 15 U.S.C. § 1681h(e) precludes a consumer from bringing state law negligence, defamation, and invasion of privacy claims, "except as to false information furnished with malice or willful intent to injure such consumer." 15 U.S.C. § 1681h (emphasis added). Again, Mr. Bath's allegations of malice and willfulness are unsupported by any factual averments, [#71 at ¶ 33], and are insufficient to survive dismissal as preempted by the FCRA. As observed by the Tenth Circuit, "Rule 12(b)(6) does not allow a plaintiff to file a complaint devoid of supporting facts as a vehicle to commence discovery on the off chance [s]ome facts might exist which could support a plausible claim." Roth v. Wilder, No. 10-1509, 420 F. App'x 804, 805 (10th Cir. 2011).
In addition, the remainder of Mr. Bath's claims fail as a matter of law. Even if Mr. Bath had properly articulated factual allegations to support his claim that American Express published inaccurate information about his account with it [#71 at ¶ 26], the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") has unequivocally held that while 15 U.S.C. § 1681s-2(a) requires furnishers of information to accurately report information, there is no private right of action against furnishers to enforce that provision. Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1147 (10th Cir. 2012). Finally, "Colorado does not recognize a claim for 'false light' invasion of privacy." Purzel Video GmbH v. Smoak, 11 F. Supp. 3d 1020, 1028 (D. Colo. 2014) (citing Denver Publ'g Co. v. Bueno, 54 P.3d 893, 904 (Colo. 2002)).
Accordingly, this court respectfully RECOMMENDS that American Express's Motion to Dismiss be GRANTED.
C. LexisNexis's Motion to Dismiss
LexisNexis also moves to dismiss, arguing that (1) a pro se Plaintiff cannot be a class representative; (2) there is no private right of action against a furnisher of credit information for reporting of inaccurate information in the first instance; (3) Plaintiff fails to allege sufficient facts to state a cognizable claim under 15 U.S.C. § 1681b or § 1681q; (4) Plaintiff's state law claims for negligence, defamation, and invasion of privacy/false light are preempted by the FCRA; (5) Plaintiff fails to allege sufficient facts to state cognizable state law claims of negligence, defamation, and invasion of privacy/false light; and (6) Colorado does not recognize a cause of action for invasion of privacy/false light. [#89]. For the reasons articulated above, this court concludes that Plaintiff has failed to articulate sufficient facts, taken as true, to state any cognizable claim, whether under the FCRA or state common law; that there is no private right of action against a furnisher of credit information under 15 U.S.C. § 1681s-2(a); and that Colorado does not recognize a claim for invasion of privacy/false light. See supra. Therefore, this court now considers LexisNexis's additional argument regarding the appropriateness of Plaintiff as a class representative.
Even if Mr. Bath had stated a cognizable individual claim, this court finds that he is not an adequate class representative under Rule 23 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1654. It is well-settled that "[a] litigant may bring his own claims to federal court without counsel, but not the claims of others." Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000). As confirmed during his Status Conference with this court, Mr. Bath is not an attorney. Therefore, to the extent that the First Amended Class Complaint seeks to proceed with class claims, it cannot with Plaintiff proceeding pro se. Id.
Accordingly, this court respectfully RECOMMENDS that LexisNexis' Motion to Dismiss be GRANTED. LexisNexis also argues to the extent that Plaintiff is granted leave to amend, the court should order Plaintiff to "outline [] in clear, direct and understandable terms the precise factual allegations to support each essential element of the remaining claims and advise Plaintiff that any such complaint must also comply with Fed. R. Civ. P. 11, which requires the complaint to be 'warranted by existing law or a good faith argument for the extension, modification or reversal of existing law." [#89 at 13-14]. Because Plaintiff has moved to amend, this court finds that this last argument by LexisNexis is better addressed in the context of Plaintiff's Motion to Amend below.
II. Motions to Enforce
Equifax and Wells Fargo both move to enforce settlement agreements with Mr. Bath. [#138, #145].
A. Equifax's Motion to Enforce
As noted by the court during the Status Conference on March 11, 2019, Equifax is not a party to this action. Therefore, the first issue for this court to consider is whether Equifax has standing to bring a Motion to Enforce in this action where Plaintiff originally named it as a defendant, filed an operative First Amended Class Complaint that did not include Equifax, and now seeks leave to amend with a proposed Second Amended Class Complaint that includes Equifax.
This court concludes that it lacks authority at this juncture to adjudicate Equifax's Motion to Enforce because Equifax is not a party to this action under the operative First Amended Class Complaint, and to the extent that the Motion to Enforce could be considered an Opposition to Plaintiff's Motion to Amend, it is unclear that Equifax has standing as a non-party to challenge the proposed amendment. See Smith v. TFI Family Servs., Inc., No. 17-02235-JWB-GEB, 2019 WL 1556250, at *3 (D. Kan. Apr. 10, 2019) (holding that non-parties lack standing to oppose a motion to amend). This issue is more appropriately adjudicated in a separate action before the Honorable Philip A. Brimmer, where the same motion is filed and Equifax is unequivocally a party with standing. Bath v. Equifax, Case No. 18-cv-00572-PAB-NYW [ECF No. 55].
Accordingly, this court respectfully RECOMMENDS that Equifax's Motion to Enforce be STRUCK.
B. Wells Fargo's Motion to Enforce
1. Legal Standard
A settlement agreement is a contract to end judicial proceedings, and issues involving the formation and construction of a purported settlement agreement are generally resolved by applying state contract law, see United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000), even when there are federal causes of action in the underlying litigation. Gates Corp. v. Bando Chemical Industries, Ltd., 4 F. App'x 676, 682 (10th Cir. 2001) (citation omitted). This court applies Colorado law to the issue of contract interpretation.
A settlement agreement need not be written to be enforced so long as its terms are clear, unambiguous, and capable of enforcement. See Citywide Bank of Denver v. Herman, 978 F. Supp. 966, 977 (D. Colo. 1997). "Settlement agreements comprised of a series of letters or other documents are valid." Id. (citing Devine v. Ladd Petroleum Corp., 743 F.2d 745 (10th Cir. 1984)). However, the parties must agree on all material terms to create a valid settlement agreement. See DiFrancesco v. Particle Interconnect Corp., 39 P.3d 1243, 1248 (Colo. App. 2001). A contract cannot be binding if it appears that further negotiations are required to work out important and essential terms. Id. See Industrial Prods. Int'l v. Emo Trans, Inc., 962 P.2d 983, 988 (Colo. App. 1997) (listing the essential elements of a contract to include "mutual assent to an exchange, between competent parties, with regard to a certain subject matter, for legal consideration") (citation omitted). An offer is a manifestation by one party of a willingness to enter into a bargain, and an acceptance is a manifestation of assent to the terms of the offer. Industrial Prods. Int'l, 962 P.2d at 988 (citing Restatement (Second) of Contracts §§ 24, 32 (1979)). "Acceptance of an offer must be of the identical terms of the offer, and in the manner, if any, specified in the offer, without any changes." Citywide Bank of Denver, 978 F. Supp. at 977 (citing Nucla Sanitation Dist. v. Rippy, 140 Colo. 444, 344 P.2d 976 (1959)). "If the acceptance modifies the proposition in any particular, it amounts to nothing more than a counter-proposal and is not an acceptance which will complete the contract." Id.
2. Application
In its Motion to Enforce, Wells Fargo argues that it entered into a binding settlement agreement with Plaintiff on February 13, 2019, including the material term of payment, that was accepted and agreed to in writing by Mr. Bath through an exchange of electronic mail correspondence. [#145]. Wells Fargo further contends that after receiving the draft Settlement Agreement, Mr. Bath refused to execute the written agreement or provide the required W-9 tax form without more monetary consideration. [Id. at ¶ 11].
No evidentiary hearing is necessary in this matter because the material facts concerning the terms of the settlement agreement are undisputed. United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993). On February 13, 2019, Defendant Wells Fargo and Plaintiff Brian Bath agreed to material terms to resolve the ongoing litigation. [#145-1 at 1, 2]. Specifically, Wells Fargo agreed to a monetary payment and updating its reporting for a particular instance, while Mr. Bath agreed that Wells Fargo could execute and file on behalf of Mr. Bath and itself stipulations to dismiss Wells Fargo, with prejudice, in this action and in a separate action, case number 2019CV000061 pending before the Colorado state District Court for Denver County and that Mr. Bath would provide Wells Fargo a general release. [#145-1 at 12, #146 at 5]. Counsel for Wells Fargo indicated that she would draft a written settlement and release agreement. [#145-1 at 2]. Mr. Bath responded unequivocally, "Mr. Bath, plaintiff agrees to the terms." [Id. at 2]. At that point, with a meeting of the minds as to specific terms, conditions and consideration, the Parties had a binding and enforceable contract under Colorado law.
The court takes judicial notice that this state court action, Bath v. American Express Company, was removed to this District Court on March 1, 2019, and bears case number 19-cv-00606-RM-NYW. The same Motion to Enforce is docketed in the 19-cv-00606 action as ECF No. 72. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (A court may take judicial notice of its own files and records, as well as facts which are a matter of public record.).
Nothing that occurred after February 13 changes this conclusion. On February 28, 2019, Mr. Bath inquired as to the status of his payment. [#145-1 at 4]. At that time, he indicated "[j]ust needing the check before I stipulate Wells out of both action and not have them served my Amended Complaint. Attached." [Id.]. Counsel for Wells Fargo responded within 30 minutes, attaching a copy of a settlement agreement and W-9 form. [Id. at 5]. She also informed Mr. Bath Wells Fargo would send the check within 15 days of receiving the executed settlement agreement and W-9 form. [Id.]. Mr. Bath then indicated that he required further monetary consideration before he would agree to stipulated to dismiss Wells Fargo. [Id. at 6 ("Wait one minute, because I am just getting this today after having to remind you. You need to redraft the agreement for [redacted] in settlement . . . . You get paid to keep this organized, I do not, time to step up [Ms. Elliott]".) But the timing for the execution of the settlement agreement and the payment was not a material term negotiated by the Parties as part of the resolution of this action, and Mr. Bath's dissatisfaction with the timing of the settlement or the payment does not change the binding nature of the agreement reached on February 13. See Brackens v. Sedgwick Claims Mgmt. Servs., Inc., No. CIV. 07-CV-01953-REB, 2008 WL 906121, at *3 (D. Colo. Apr. 1, 2008)
"A trial court has the power to summarily enforce a settlement agreement entered into by the litigants while the litigation is pending before it." Hardage, 96 F.2d at 1496. The undisputed record reflects that, by affixing his signature to an executed document send by Mr. Bath to Wells Fargo, Mr. Bath agreed to all the terms of written settlement agreement except the amount of payment. Compare [#146] with [#146-1 at 7-13]. Therefore, this court respectfully RECOMMENDS that the Motion to Enforce be GRANTED, the Settlement Agreement found at [#146] be ENFORCED; and that all claims against Wells Fargo be DISMISSED with prejudice.
III. Motion to Amend
As described in the Background section of this Recommendation, during the pendency of the various motions, Plaintiff filed a Motion to Amend that he inaccurately described as "unopposed."
A. Rule 11 Obligations
At the outset, this court notes that it is troubled by Mr. Bath's inaccuracies in representing other Parties' position with respect to the relief he seeks. It is clear, not simply from the Notices filed by American Express and LexisNexis but also from the correspondence included in LexisNexis' Notice, that Mr. Bath was informed that at least one Defendant did not consent to the filing of his motion as unopposed, and in fact, asked for the motion to be revised to reflect the opposition. [#151-1]. Instead of revising such motion to accurately reflect the position of opposing counsel, Mr. Bath responded, "If the judge ask, I will confirm." [#151-1 at 3]. When asked for clarification about that statement, Plaintiff responded, "I cannot give legal advice because of the fact I am not a BAR attorney rather an idiota [] Look it up[.]" [Id. at 2]. While this court might have simply dismissed Mr. Bath's misrepresentation as an unintentional mistake by a non-attorney, pro se litigant, the instant Motion to Amend represents the second such instance where he has represented a motion to amend to be unopposed when, in fact, it was opposed.
American Express indicated in its Notice that it was attaching correspondence as Exhibit A and B [#150], but the docket did not reflect any such exhibits.
On January 28, 2019, Mr. Bath filed a Motion to Amend the Complaint and stated that "Certificate of Conferral: The Plaintiff conferred with defendants [sic] counselors for their position on the Motion to Amend via email on January 14, 2019. Counselors for the Defendants do not oppose the Motion to Amend." [#57 at 1]. Two defendants then promptly filed notices with the court reflecting that Mr. Bath never conferred with them about the proposed motion. [#61; #62]. At that stage of the litigation Mr. Bath had the right to amend, and Judge Moore granted leave to amend and docketed the First Amended Class Complaint. [#70].
While Mr. Bath is not a licensed attorney, as a party he is still bound by the same procedural and substantive law. Dodson, 878 F. Supp. 2d at 1236. That includes Rule 11 of the Federal Rules of Civil Procedure makes clear that every written motion must include the signature of a party if unrepresented, and that signature certifies that the factual contentions have evidentiary support. Fed. R. Civ. P. 11(b)(3). Accordingly, this court specifically advises Mr. Bath that he is bound by Rule 11 of the Federal Rules of Civil Procedure and that by signing his name to a pleading, written motion, or other paper, he is certifying that to the best of his knowledge, information and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;Fed. R. Civ. P. 11(b). Mr. Bath has an obligation to be forthcoming and accurate with the court, without requiring the court "to ask."
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
In addition, the court notes the discourteous language reflected in Mr. Bath's communications with opposing counsel. A district court has the power to enjoin litigants who abuse the court system by harassing their opponents pursuant to 28 U.S.C. § 1651(a). Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (per curiam). Courts are vested with an inherent power to oversee and control the conduct of litigation, and tailor necessary orders to that end. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986). While mere litigiousness alone will not support such an order, the right of access to the courts is not absolute and an injunction is proper where a litigant has engaged in a persistent pattern of meritless, abusive litigation. Tripati, 828 F.2d at 353. This includes the entry of an order restricting a party's ability to or setting conditions for filings with the court. While it does not find an adequate basis, at this juncture, to recommend any such order against Mr. Bath, this court does strongly encourage all Parties to be professional in their communications with each other, including that occurring outside the presence of the court.
Failure to adhere to Rule 11 may lead to this court issuing an order to show cause why such conduct has not violated Rule 11(b) and to a Recommendation and/or Order for sanctions or a filing restriction against Mr. Bath.
B. Rule 15(a)
Because this court has yet to set a deadline for joinder of parties and amendment of pleadings, the instant Motion to Amend comes before any such deadline and is governed by Rule 15(a) of the Federal Rules of Civil Procedure. See Fernandez v. Bridgestone/Firestone, Inc., 105 F. Supp. 2d 1194, 1195 (D. Colo. 2000) (explaining that the movant need not demonstrate good cause under Rule 16(b) under such circumstances). Rule 15(a)(2) provides that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a)(2). "Indeed, Rule 15(a)'s purpose is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties." Warnick v. Cooley, 895 F.3d 746, 754-55 (10th Cir. 2018) (internal quotation marks omitted). But the court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Whether to allow amendment is within the trial court's discretion. Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996).
Plaintiff provides two bases for amendment: (1) the undersigned Magistrate Judge requested amendment; and (2) he sought to add exhibits to support his claims against the Defendants for FCRA violations. [#144 at 1]. To be clear, this court did not request an amendment from Plaintiff nor give leave to amend. Rather, the court noted that Equifax was not a party to the lawsuit pursuant to the operative First Amended Class Complaint, so to the extent that Mr. Bath intended to pursue any claims against Equifax, it would need to be added back into the lawsuit through amendment of the pleadings. Therefore, this court focuses on whether Plaintiff should be permitted leave to amend based on the second enumerated ground, i.e., the addition of exhibits to support his claims for FCRA violations.
Both American Express and LexisNexis oppose amendment of Plaintiff's operative pleading. [#157; #158]. They respectively argue that Plaintiff's proposed amendments do not cure the deficiencies of the First Amended Class Complaint, and that the proposed amendments are futile.
A review of the proposed Second Amended Class Complaint leads this court to recommend that the Motion to Amend be denied based on failure to cure deficiencies by amendments previously allowed, or futility of amendment. First, it is entirely unclear what factual allegations are contained in the exhibits to the proposed Second Amended Class Complaint that Mr. Bath seeks to incorporate into the Second Amended Class Complaint. While Mr. Bath attaches to the proposed Second Amended Class Complaint a series of documents from Trans Union, Equifax, Discover Card, Capital One, Chase, TD Bank, the proposed Second Amended Class Complaint articulates no further factual allegations to warrant amendment to cure Plaintiff's deficiencies from the First Amended Class Complaint to save claims from dismissal under Rule 8 and 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff's proposed Second Amendment is also procedurally flawed. To the extent that Mr. Bath seeks to incorporate information from other filings (in this case or others) into the proposed Second Amended Class Complaint, see [#144-1 at ¶ 19], such incorporation is not permitted under the Rules. While Rule 10(c) allows for a statement in a pleading to be adopted by reference elsewhere in the same pleading, or in any other pleading or motion, a pleading cannot adopt factual assertions from other filings. See Wood v. World Wide Ass'n of Specialty Programs and Schs., Inc., No. 2:06-cv-708 TS, 2007 WL 5823646, at *1 (D. Utah Feb, 22, 2007) ("[T]here is no provision in the Rules for incorporation of statements or material into a complaint by reference unless they are either contained in a pleading or attached as an exhibit to a pleading."). Indeed, a court in this District has previously held that a party "may not incorporate by reference his original Complaint into the amended complaint, nor may he incorporate previously filed motions and papers. The amended complaint must stand alone; it must contain all of the plaintiff's claims." See Murphy v. Colo. Dep't of Corrections, No. 06-cv-01948-REB-BNB, 2007 WL 2028763, at *2 (D. Colo. July 11, 2007).
Second, to the extent that Plaintiff continues to assert claims of defamation, negligence, and invasion of privacy/false light, there continue to be insufficient allegations of willful or malicious conduct on the part of Defendants, and therefore, such claims appear to be preempted by the FCRA. "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007) (quotation and internal quotation omitted).
Third, to the extent that Plaintiff seeks to include claims against Wells Fargo through its Second Amended Class Complaint [#109-2], such claims are precluded by an enforceable settlement between Mr. Bath and Wells Fargo. See supra.
Accordingly, this court respectfully RECOMMENDS that Plaintiff's Motion to Amend be DENIED.
IV. Plaintiff's First and Second Motions for Summary Judgment
The three remaining motions relate to Mr. Bath's currently pending Motions for Summary Judgment [#91; #106], and Trans Union's Motion to Strike. [#136]. TransUnion objects specifically to "Exhibit H," a letter attached to Mr. Bath's Motion for Summary Judgment Against TransUnion [#106 at 4], and generally to Mr. Bath's other evidence as hearsay, unauthenticated, and irrelevant. [#136].
Though Judge Moore permitted Plaintiff to proceed with the Motions for Summary Judgment without compliance with his Practice Standards [#130], it does not appear that Mr. Bath has carried his burden under Rule 56 of the Federal Rules of Civil Procedure to justify summary judgment on any claim against any Defendant in his favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). As to American Express and LexisNexis, this court has recommended dismissal of the operative First Amended Class Complaint, which would moot any request for summary judgment in Mr. Bath's favor against those two Defendants. More broadly, Mr. Bath does not establish a set of material, undisputed facts that entitle him to judgment on any claim against any of Defendants. Indeed, the Motions for Summary Judgment suffer from the same factual deficiencies as the First Amended Class Complaint. Trans Union seeks to strike Exhibit H, a letter from Mr. Bath to Trans Union's President and Chief Executive Officer, to the Motions as unauthenticated and containing hearsay. [#136]. This court agrees, and will recommend the striking of the exhibit, but notes that even with consideration of the exhibit, the analysis and Recommendation as to the Motions for Summary Judgment would not change.
V. Joint Motion for Protective Order
On May 7, 2019, LexisNexis, Experian, Trans Union and American Express jointly moved for a Protective Order staying discovery pending the disposition of these instant motions. Though the court ordered that Plaintiff respond no later than May 17, 2019, it now finds, in light of this Recommendation, that it should proceed in adjudicating the Joint Motion for Protective Order without further response. D.C.COLO.LCivR 7.1(d).
The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings; however, the power to stay "is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citing Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)). Whether to stay discovery is a matter left to the sound discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). In determining whether a stay is appropriate, the court weighs interests such as whether defendants are likely to prevail in the civil action, whether defendants will suffer irreparable harm, whether the stay will cause substantial harm to other parties to the proceeding, and the public interests at stake. United Steelworkers of Am. v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227 (10th Cir. 2003). The factors to be applied by the court in determining the propriety of a stay are: (1) Plaintiffs' interests in proceeding expeditiously with the action and the potential prejudice to Plaintiffs resulting from a delay; (2) the burden on the Defendants; (3) the convenience to the Court; (4) the interests of persons not parties to the litigation; and (5) the public interest. String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-CV-01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006).
In light of the court's Recommendation, it finds that the weighing of the factors justifies a stay. Plaintiff's interest in proceeding expeditiously is outweighed by the burdens to Defendants and the court, given the lack of specific factual allegations. Accordingly, this court GRANTS the Joint Motion for Protective Order and STAYS discovery pending the disposition of this Recommendation.
VI. Rule 4(m) and Order to Show Cause
In the Amended Complaint, Plaintiff Bath seeks to name additional defendants who have not yet been served in the over ninety days since the filing of the Amended Complaint on February 5, 2019. [#71]. Specifically, as noted above, there is no indication that Defendants Realpage, Inc., First Premier Bank, TD Bank, or Paypal have been properly served at this point. Federal Rule of Civil Procedure 4(m) provides that a defendant must be served within ninety days of filing the complaint or the court, after notice to Plaintiff, must dismiss the unserved defendants. Hammond v. Nagle, No. 18-CV-00579-RBJ-NYW, 2019 WL 652596, at *5 (D. Colo. Feb. 15, 2019). Therefore, Plaintiff Brian Bath is ORDERED TO SHOW CAUSE, in writing and on or before May 24, 2019, why this court should not dismiss these four defendants under Rule 4(m).
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) Motion of Defendant American Express National Bank to Dismiss Plaintiff's Amended Complaint [#88] be GRANTED;
(2) LexisNexis Risk Solutions, Inc.'s Motion to Dismiss Plaintiff's First Amended Class Action Complaint [#89] be GRANTED;
(3) Plaintiff Brian Bath Answer and Motionto Strike From the Record Defendant Experian Information Solutions Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath [#91] be DENIED;
(4) Plaintiff Brian Bath Answer and Motionto Strike From the Record Defendant Trans Union Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath [#106] be DENIED;
(5) Defendant Trans Union LLC's Objections and Motion to Strike Plaintiff's Summary Judgment Evidence [#136] be GRANTED;
(6) Defendant Equifax Information Services LLC's Motion to Enforce the Settlement Agreement [#138] be STRICKEN;
(7) Plaintiff's Unopposed Motion to Amend "Compaint" [#144] be DENIED; and
(8) Well Fargo Bank, N.A.'s Motion to Enforce Settlement [#145] be GRANTED.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
And it is ORDERED:
(1) Defendants' Joint Motion for Protective Order [#171] is GRANTED and discovery, including responses to any already-served discovery is STAYED pending the resolution of this Recommendation. To the extent that there are any remaining claims after the resolution, the Parties will contact the chambers of Magistrate Judge Nina Y. Wang within three (3) days of Judge Moore's order to set a further Status Conference to discuss scheduling and discovery.
(2) That on or before May 24, 2019 Plaintiff Brian Bath is ORDERED TO SHOW CAUSE in writing why this court should not dismiss Defendants Realpage, Inc., First Premier Bank, TD Bank, and Paypal under Rule 4(m). DATED: May 10, 2019
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge