Opinion
2:05-CV-1207-MCE-KJM.
August 14, 2006
MEMORANDUM AND ORDER
Through the present action, Plaintiffs Daniel and Vida Roybal ("Plaintiffs") allege that Equifax, Transunion, Experian, Rickenbacker, Medamerica, City Towing Body Shop, Inc. and Sears violated both state and federal consumer protection laws by furnishing and reporting erroneous credit information on Plaintiffs' credit report. A number of the foregoing claims have been adjudicated by this Court through earlier proceedings. Specifically, with respect to Defendant furnisher of credit Medamerica, Inc. ("Medamerica"), the Court has dismissed all claims against it save Plaintiffs' eighth cause of action for the alleged violation of the Fair Credit Reporting Act ("FCRA"). Medamerica now moves to dismiss that remaining claim as well as a Fair Debt Collection Practices Act ("FDCPA") claim Plaintiffs have reasserted in their First Amended Complaint. Medamerica asserts that Plaintiffs have failed to state a claim upon which relief can be granted. For the reasons set forth below, Medamerica's Motion to Dismiss is granted.
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
The Court has previously set forth a factual background for this action in its Order of October 19, 2005, which is incorporated by reference and need not be reproduced herein. Mem. Order 2-3, October 19, 2005.
STANDARD
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
A complaint will not be dismissed for failure to state a claim "`unless it appears beyond doubt that plaintiff can prove no set of facts in support of [his or] her claim that would entitle [him or] her to relief.'" Yamaguchi v. Dep't of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997) (quoting Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)).
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment. . . ." Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
ANALYSIS
1. Fair Credit Reporting Act
As this Court explained in its October 19, 2005, and April 4, 2006, Orders, under the FCRA a disputatious consumer may only bring a private right of action against a furnisher of credit if he notifies the credit reporting agency ("CRA") in the first instance who, in turn, must notify the furnisher of credit. It is only then that an FCRA cause of action arises against the furnisher of credit. See Mem. Order, October 19, 2005.
The Court has twice dismissed Plaintiffs' FCRA claims against the Defendant furnishers of credit. In both instances, the Court granted Plaintiffs leave to amend their Complaint so as to properly plead facts sufficient to support their FCRA claim. Plaintiffs elected to forego their opportunity to amend to cure this defect as against Defendant Rickenbacker. Plaintiffs, however, did file an Amended Complaint as against Medamerica. See Pl.s First Amended Compl., April 24, 2006. The amendment does nothing to cure the foregoing defect. Specifically, Plaintiffs First Amended Complaint does not aver that Medamerica was notified of the allegedly erroneous credit entries by the CRAs triggering a private right of action under the FCRA. Accordingly, no FCRA claim can be stated as against them.
In Plaintiffs' First Amended Complaint, they request leave to reassert their FCRA claim against Defendant Rickenbacker, leave to amend having expired long ago. Plaintiffs' bald request is groundless and hereby denied.
In this instance, leave to amend should be granted because the deficiencies of the Complaint can be cured. The Court cautions, however, that should Plaintiffs again fail to properly allege an FCRA claim against Medamerica, the Court will consider further leave to amend futile. Accordingly, Medamerica's Motion to Dismiss Plaintiffs' FCRA claim is granted with leave to amend.
2. Fair Debt Collection Practices Act
Plaintiffs' FDCPA claim against Medamerica was dismissed without leave to amend as barred by the statute of limitations. See Mem. Order, May 18, 2006. To the extent Plaintiffs attempt to revive this claim in their First Amended Complaint, the Court reaffirms its earlier ruling dismissing this claim as time barred.
CONCLUSION
For the reasons set forth above, Medamerica's Motion to Dismiss Plaintiffs' FCRA claim is granted with leave to amend. In addition, the Court reaffirms its earlier dismissal of Plaintiffs' FDCPA claim as time barred.
IT IS SO ORDERED.