Opinion
No. 2:05-cv-01207-MCE-KJM.
October 7, 2008
MEMORANDUM AND ORDER
Through the present action, Plaintiffs Daniel and Vida Roybal ("Plaintiffs") allege that Equifax, Transunion, Rickenbacker, and City Towing Body Shop, Inc. ("City Towing") violated both state and federal consumer protection laws by furnishing and reporting erroneous credit information on Plaintiffs' credit report.
Plaintiffs' lawsuit originally included other Defendants who have since been dismissed either voluntarily or by Court order following previous motions in this matter.
Presently before the Court is Defendant City Towing's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, that Motion will be granted.
Unless otherwise noted, all further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure.
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
This lawsuit stems from alleged credit report inaccuracies that Plaintiffs claim they discovered while attempting to refinance their home in 2003. Because Plaintiffs' credit report included a number of entries incorrectly linked to Plaintiffs by Defendant Rickenbacker, an agency who furnished credit information to national credit reporting agencies (including Defendants Trans Union and Equifax, hereinafter "CRAs"), Plaintiffs allege they attempted to contact Rickenbacker directly in order to resolve the inaccuracies and clear their credit report.It appears that some of the allegedly inaccurate collection accounts listed on Plaintiffs' credit report were attributable to debts purportedly owed to Defendant City Towing.
According to the Declaration of Greg Albee, a loan officer who originally tried to help Plaintiffs secure a new loan, Plaintiffs' credit report included some thirteen alleged collection accounts from City Towing. Albee Decl., ¶ 2. Plaintiffs' Amended Complaint, however, contains no specific allegations whatsoever directed to City Towing. In addition, while the Declarations of Plaintiffs Vida Roybal and Daniel Roybal outline steps they claim to have taken to rectify the inaccurate entries with Defendants Equifax and Rickenbacker, there is no evidence that any contacts whatsoever were made with City Towing.
While Plaintiffs' Opposition to this Motion purports to include numerous declarations, including that of Mr. Albee, in fact no declarations were filed by Plaintiffs' counsel with respect to City Towing's Motion for Summary Judgment. Because the declarations that were supposed to have been attached were filed in the other concurrently pending summary judgment motions, however, including those brought by Defendants Rickenbacker and Equifax, the Court has considered those declarations as having also been directly submitted in support of this Motion.
Plaintiffs' Amended Complaint, filed on April 24, 2006, asserts claims under the Fair Credit Reporting Act ("FCRA") and the Fair Debt Collection Practices Act ("FDCPA"), along with various state law claims, brought both statutorily and under California common law. Plaintiffs' Amended Complaint was subject to a Motion to Dismiss brought by Defendant Medamerica under Rule 12(b)(6). The Court granted that Motion as to Plaintiffs' FDCPA claim on statute of limitations grounds, and further dismissed the FCRA claim against Medamerica, also without leave to amend.
Defendant City Towing filed a Motion for Judgment on the Pleadings as to the Amended Complaint on January 25, 2008. Thereafter, on June 4, 2008, while its motion attacking the pleadings still remained under submission, City Towing filed the present Motion for Summary Judgment, which the Court now considers.
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed.R.Civ.P. 56(a) ("A party seeking to recover upon a claim . . . may . . . move . . . for a summary judgment in the party's favor upon all or any part thereof."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).
The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed.R.Civ.P. 56(a), 56(c); Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. at 323 (quoting Rule 56(c)).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987).
Stated another way, "before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more that simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586-87.
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),aff'd, 810 F.2d 898 (9th Cir. 1987).
ANALYSIS
I. PLAINTIFFS CANNOT STATE ANY CLAIM AGAINST DEFENDANT CITY TOWING BECAUSE CITY TOWING HAD NO ACTIVE ROLE IN THE EVENTS UNDERLYING THIS LITIGATION
Plaintiffs premise City Towing's liability in this action on the fundamental assertion that City Towing, as a furnisher of credit information, provided false information in that regard concerning Plaintiffs to the CRA Defendants. As indicated above, some of the allegedly incorrect credit entries appeared to concern debts owed by Plaintiffs to City Towing.In fact, there is no evidence to buttress this underlying contention, and absent actionable conduct on the part of City Towing itself Plaintiffs' claims necessarily fail. It is undisputed that City Towing never did any business with Plaintiffs, never engaged in any conduct intended to result in any such business with Plaintiffs, and never entered into any credit transaction with the Plaintiffs. Undisputed Fact Nos. 10-13. It is further undisputed that Plaintiffs have never owed any debt to City Towing (Undisputed Fact No. 14), and that City Towing has never attempted to collect any such debt from Plaintiffs. Undisputed Fact No. 15.
While Plaintiffs purport to dispute the fact that City Towing never retained Defendant Rickenbacker as a collection agency to collect against the Plaintiffs on its behalf (see Undisputed Fact No. 16 and Plaintiffs' response thereto), Plaintiffs offer no evidence whatsoever to support that assertion.
In contrast, City Towing has produced a declaration from City Towing's owner, Kenneth Carvalho, which states unequivocally that City Towing never retained Rickenbacker to collect any debt from Plaintiffs. Carvalho Decl., ¶ 4. In addition, City Towing has further offered a declaration from Defendant Rickenbacker's Compliance Manager, Stacey Angst, which confirms that Rickenbacker was never asked by City Towing to perform any duties in that regard. Angst Decl., ¶ 5.
With regard to the CRA Defendants, City Towing has also produced declarations from personnel at both Equifax, Trans Union and Experian which further establish that City Towing never furnished any credit information concerning Plaintiffs to those entities, either. See Decls. of Vicki Banks (Equifax), ¶ 2; Eileen Little (Trans Union), ¶ 3; and Kimberly Hughes (Experian), ¶ 3.
Consequently Plaintiffs have failed to controvert, with any admissible evidence, City Towing's claim that it had no role at all in causing entries concerning Plaintiffs to be placed in their credit report. Although both Plaintiffs allege by way of declaration that they contacted other Defendants in an attempt to rectify the inaccurate reporting (including Defendants Equifax and Rickenbacker), no allegation of any such contact is made with respect to City Towing.
While Plaintiffs generally assert that the City Towing entries on Plaintiffs' credit report did not "appear out of thin air", the fact remains that they have pointed to no actual evidence linking any conduct by City Towing with those entries. Therefore Plaintiffs have failed to rebut City Towing's showing that it bears no responsibility for those entries, and City Towing is entitled to summary judgment as to Plaintiffs' claims stemming from improper credit reporting in their entirety.
II. PLAINTIFFS' STATE-BASED CLAIMS ARE PREEMPTED BY THE FCRA IN ANY EVENT
Plaintiffs fare no better if we examine the merits of the specific claims asserted by Plaintiffs against City Towing. First, with respect to Plaintiff's state-based causes of action, those claims are preempted by the FCRA.
The FCRA establishes standards for the collection, communication, and use of consumer credit information for business purposes. Given this statutory framework of uniform requirements applicable to both the gathering and dissemination of such credit information, Congress has included certain preemption provisions within the FCRA in order to prevent state laws from interfering with its objectives. With regard to regulations affecting the furnishers of credit information, the FCRA provides in pertinent part as follows:
"No requirement or prohibition may be imposed under the laws of any State-(1) with respect to any subject matter regulated under — . . . (F) section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies, except that this paragraph shall not apply — . . . (ii) with respect to section 1785.25(a) of the California Civil Code. . . ."15 U.S.C. § 1681t(b)(1)(F)(ii).
Section 1681s-2, as cited in this statute, imposes in part a duty on regular furnishers of credit information to correct and update the information they provide so that the information is "complete and accurate." 15 U.S.C. § 1681s-2(a)(2).
On its face, this preemption provision precludes all state statutory or common law causes of action that would impose any "requirement or prohibition" on those who furnish credit information. In its October 20, 2005 Order granting Defendant Rickenbacker's Motion to Dismiss, the Court found that this language completely preempted the state claims being asserted by Plaintiffs at that time, which as stated above included both statutory and common law claims. That conclusion is equally compelling here.
While the statute makes an exception for California Civil Code § 1785.25(a), Plaintiffs have not alleged a violation of that provision and even had they done so, no private right of action exists under § 1785.25(a) in any event. Instead, the language affording consumers a private right of action is found within §§ 1785.25(g) and 1785.31. Since Congress was very specific in exempting only § 1785.25(a) from preemption, and does not include those provisions which do authorize a private right of action, the Court concludes that no provisions authorizing a private right of action under the California Civil Code would be available to Plaintiffs here.
Because Plaintiffs' state law claims against City Towing are all based on alleged injuries arising from City Towing's reporting of credit information, the Court's previous finding that all such claims are completely preempted with regard to Rickenbacker (as another credit information furnisher defendant) also applies to City Towing here. See, e.g., Jaramillo v. Experian Info. Solutions, Inc., 155 F. Supp. 2d 356, 361-62 (E.D. Pa. 2001) ("it is clear. . . . that Congress wanted to eliminate all state causes of action relating to the responsibilities of persons who furnish [credit] information"); Hasvold v. First USA Bank, 194 F. Supp. 2d 1228, 1239 (D. Wyo. 2002) ("federal law under the FCRA preempts plaintiff's claims [for defamation and invasion of privacy] against the defendant relating to it as a furnisher of information"); Riley v. Gen. Motors Acceptance Corp., 226 F. Supp. 2d 1316, 1322 (S.D. Ala. 2002) (finding preemption of state claims for negligence, defamation, invasion of privacy and outrage).
III. PLAINTIFFS CANNOT ASSERT A VIABLE CLAIM UNDER THE FCRA
Having determined that Plaintiffs' state-based claims against City Towing are completely preempted by the FCRA, we now turn to whether Plaintiffs are left with a viable FCRA claim that precludes entry of summary judgment in City Towing's favor.
In Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1060 (9th Cir. 2002), the Ninth Circuit found that Congress did not want furnishers of credit information companies exposed to suit by every dissatisfied individual contesting the veracity of credit information so furnished. The Nelson court went on to recognize, however, that the FCRA does provide a means for allowing such suits provided that certain procedural prerequisites were satisfied:
"[C]ongress did provide a filtering mechanism . . . by making the disputatious consumer notify a CRA and setting up the CRA to receive notice of the investigation by the furnisher. With this filter in place and opportunity for the furnisher to save itself from liability by taking the steps required by § 1681s-2(b), Congress put no limit on private enforcement under §§ 1681n o."Id.
The foregoing makes it clear that a private right of action against a furnisher of credit information exists only if the consumer has notified a CRA in the first instance. Under the FCRA, the CRAs then have an obligation to investigate whether the claim is frivolous or irrelevant. See 15 U.S.C. § 1681i(a)(3). Once a claim is deemed viable, the CRAs must contact the furnisher of the credit information who is then afforded the opportunity to investigate and rectify erroneous reporting entries. See 15 U.S.C. § 1681s-2(b). The furnisher's duty to investigate, however, does not arise unless and until it receives notice of the credit reporting dispute directly from the CRAs. Bypassing the CRAs, as the filtering entities, and contacting the credit information furnishers directly does not actuate the furnishers obligation to investigate under the FCRA, and does not give rise to a private right of action against the furnishers on behalf of an allegedly aggrieved consumer. See Nelson, 282 F.3d at 1060.
Applying these prerequisites for liability to the present case, in order for Plaintiffs to state a claim under the FCRA against a purported furnisher of credit information like Defendant City Towing, Plaintiffs must show that they contacted the CRAs and that the CRAs, in turn, determined the claim was viable and contacted City Towing, thereby triggering City Towing's duty to investigate. In the absence of such showing, Plaintiffs lack standing under the FCRA to pursue a private right of action against City Towing.
While Plaintiffs claim they contacted Defendant Rickenbacker directly, and also assert that they at least contacted the CRA Defendant Equifax by telephone, there is absolutely no evidence that the CRAs notified City Towing itself of the purported inaccuracies so as to trigger City Towing's duty to investigate under the FCRA and the corresponding right on Plaintiffs' behalf to bring an action against City Towing alleging that any investigation and/or action subsequently taken was inadequate. Without that showing, Defendant City Towing is entitled to summary judgment under the terms of the FCRA.
While Plaintiffs appear to argue that their state common law causes of action are not preempted because 15 U.S.C. § 1681h(e) exempts "false information furnished with malice or willful intent to injure" from the scope of FCRA's preemption, in the absence of any showing of City Towing's involvement in the credit reporting at issue in the first place, such involvement by definition could not have been willful or malicious.
IV. PLAINTIFFS' FDCPA CLAIMS ARE TIME-BARRED
Plaintiffs' claims that City Towing violated the FCDPA by using false and misleading statement to collect a debt, in violation of 15 U.S.C. §§ 1692e and 1692f, is equally unavailing even if the Court were to overcome the fundamental issue of City Towing's lack of involvement, which it has not.
The purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to protect consumers against debt collection issues. 15 U.S.C. § 1692(e). Under both the FDCPA and its California counterpart, the so-called Rosenthal FDCPA, the applicable limitations period is one year. See 15 U.S.C. § 1692k(d) (federal); Cal. Civ. Code § 1788.30(f) (state).
Here, Plaintiffs allege that Defendants violated the FDCPA by "report[ing] false and derogatory information." Pls.' Amended Compl., ¶ 69. The same allegation is made with respect to Plaintiff's allegations under the state-based Rosenthal FDCPA.Id. at ¶ 75. It is undisputed that the alleged credit reporting occurred in 1997 and 2001 (Undisputed Fact No. 5), and was discovered by Plaintiffs on or about December 13, 2003. Undisputed Fact No. 4.
The present action was commenced on May 10, 2005, well beyond the one-year statute of limitations irrespective of how that date is calculated. Assuming, for example, that the statute began to run from the date the allegedly improper credit reports were made, the statute would have run in either 1998 or 2002, well before Plaintiffs' lawsuit was filed in 2005. Conversely, even if the statute did not start until after Plaintiffs admit they discovered the inaccuracies in question on December 13, 2003, Plaintiff's lawsuit was still not filed within the requisite one-year period. Plaintiffs' FDCPA claims are accordingly time-barred.
CONCLUSION
For the reasons set forth above, Defendant City Towing's Motion for Summary Judgment is GRANTED. The Court recognizes that Plaintiffs have requested in the body of their Opposition that a continuance be granted should the Court be inclined to grant Rickenbacker's Motion for Summary Judgment. (Pls.' Opp., 18:15-17). The stated grounds for that continuance, despite the fact that the discovery deadline has long since passed, is to allow "further follow up in discovery," with no further detail of any kind being provided. Plaintiffs have failed to identify just what discovery might be undertaken that would lead to information suggesting a different result.
Because this Motion supplants City Towing's earlier-filed Motion for Judgment on the Pleadings, that Motion is denied as moot.
No declaration supporting the need for such discovery was submitted in advance of the hearing on this Motion, as required by Federal Rule of Civil Procedure 56(f). Plaintiffs have failed to outline, as they must, the steps or procedures necessary to obtain needed discovery, why the discovery was not obtained beforehand, or how any facts obtained through additional discovery would defeat Defendant City Towing's Motion. See Tatum v. City County of San Francisco, 441 F.3d 1090, 1101 (9th Cir. 2006). Consequently Plaintiffs' continuance request is DENIED.
IT IS SO ORDERED.