Skiles v. Tesla, Inc. et al, No. 3:2017cv05434 - Document 132 (N.D. Cal. 2020)
Court Description: ORDER GRANTING MOTIONS TO DISMISS. Signed by Judge William H. Orrick on 07/15/2020. (jmdS, COURT STAFF) (Filed on 7/15/2020)
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Skiles v. Tesla, Inc. et al Doc. 132 Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 1 of 9 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WAYNE SKILES, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 Case No. 17-cv-05434-WHO ORDER GRANTING MOTIONS TO DISMISS v. TESLA, INC., et al., Re: Dkt. No. 117, 118 Defendants. Defendants Tesla, Inc. (“Tesla”) and Experian Marketing Services, Inc. (“Experian”) move 13 to dismiss plaintiff Wayne Skiles’s Second Amended Complaint (“SAC”). Skiles alleges that 14 Tesla violated the Fair Credit Reporting Act (“FCRA”) when Experian provided Tesla with a 15 “Mosaic score,” a marketing report based upon aggregate data, at the time that Skiles visited 16 Tesla’s showroom. There are many problems with Skiles’s theory of the case. Most importantly, 17 Skiles fails to allege that the Experian’s “Mosaic score” is a “consumer report” under the 18 definition set forth in the FCRA. He also fails to state that Experian is a “consumer reporting 19 agency” under the statute or that the defendants acted willfully. For these reasons, the defendants’ 20 motions to dismiss are GRANTED, and Skiles’s SAC is dismissed WITH PREJUDICE. 21 BACKGROUND 22 Skiles first filed this action on September 19, 2017 and filed an amended complaint 23 (“FAC”) on December 22, 2017. Dkt. Nos. 1, 61. After I granted the defendants’ motions to 24 dismiss, he filed the SAC, which includes the same primary allegations as the FAC. Dkt. No. 111 25 (“SAC”). Dkt. No. 111 (“SAC”). He alleges that in August of 2015, he visited a Tesla vehicle 26 showroom in Newport Beach, California. Id. ¶ 15. A Tesla employee approached him and 27 offered to let him test drive a Tesla car. Id. ¶¶ 16-17. Skiles stated that he was interested. Id. ¶ 28 17. The Tesla employee then requested Skiles’s driver’s license, which Skiles believed was for Dockets.Justia.com Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 2 of 9 1 the purpose of verifying that he was permitted to operate a motor vehicle, but which Tesla in fact 2 used to obtain a report from Experian called a “Mosaic score.” Id. ¶¶ 18-38. Skiles was not 3 provided an opportunity to consent to this use of his driver’s license. Id. ¶ 38. United States District Court Northern District of California 4 Tesla filed a motion to dismiss and to compel arbitration on January 24, 2018. Dkt. No 64. 5 I granted Tesla’s motion to compel arbitration and stayed the case. Dkt. No. 76. After the 6 arbitrator found that Skiles’s claims were not subject to arbitration, I granted Skiles’s request to 7 lift the stay. Dkt. No. 98. The parties subsequently resumed briefing on Tesla’s original motion to 8 dismiss the FAC filed in 2017. Dkt. Nos. 64, 99, 102, 103. On February 19, 2020, I granted the 9 defendants’ motions to dismiss with leave to amend, and allowed Skiles to substitute the 10 appropriate Experian entity as a defendant. Dkt. No. 110 (“Order”). Skiles filed the SAC on 11 March 9, 2020, which both defendants move to dismiss. Dkt. Nos. 117, 118. 12 LEGAL STANDARD 13 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 14 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 15 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 16 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 17 the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the defendant 18 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). There must be 19 “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not 20 require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a 21 right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 22 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 23 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 24 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is 25 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 26 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 27 2008) (citation omitted). “Dismissal can be based on the lack of a cognizable legal theory or the 28 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 2 Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 3 of 9 1 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). DISCUSSION 2 3 4 I. WHETHER THE MOSAIC SCORE IS A CONSUMER REPORT AND EXPERIAN IS A “CONSUMER REPORTING AGENCY” In my prior Order, I held that Skiles alleged facts sufficient to show that the Mosaic Score 5 6 7 8 9 10 satisfied the first prong of the FCRA’s definition of a “consumer report.” Order at 4. However, I found that Skiles did not satisfy the second prong, stating that “to plead that the Mosaic score is a ‘consumer report’ . . . Skiles must allege that it was used or expected to be used in connection with one of the ‘specifically enumerated transactions’ in Section 1681a(d) or Section 1681b(3)(A)(E), ‘i.e., credit, insurance eligibility, employment, or licensing.’” Id. at 5. I also stated that Skiles must allege facts with respect to Experian’s (instead of Tesla’s) expectations regarding the use of 11 United States District Court Northern District of California the report. Id. at 6. 12 Skiles contends that the Mosaic Score is a consumer report because it is a collection of 13 data used at least in part as a factor in making credit determinations, and because Experian 14 expected that it would be used as a factor in making credit decisions. Dkt. No. 120 at 5-6. The 15 16 SAC alleges that “[o]ne source of summarized credit that makes up the Mosaic Score is from Experian’s Summarized Credit Statistics, which Experian advertises as ‘information [that] 17 effectively targets consumers for a diverse range of marketing offers, such as invitations to apply 18 19 20 21 22 for a credit card, home equity loans or financial advisement services.’” SAC ¶ 31. The Mosaic score provides “detailed information on the consumer which is vital in deciding to establish credit, such as the individual’s age, income, and even credit worthiness.” Id. ¶ 33. Skiles alleges that in making the Mosaic score, “Experian took into consideration factors bearing on Plaintiff’s credit worthiness, personal characteristics, and mode of living, among other things.” Id. ¶ 61. Experian 23 was aware that purchasers of the Mosaic score would rely on the information in the report to 24 25 determine eligibility for credit, in part because it includes information such as “summarized credit and automotive data” and because of the expensive nature of Tesla vehicles. Id. ¶¶ 64-65. 26 Tesla allegedly obtained the Mosaic score for both marketing and sales purposes, and to 27 determine eligibility for an extension of credit to purchase a Tesla car. Id. ¶ 35. “Upon 28 3 Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 4 of 9 1 information and belief,” Experian was aware of Tesla’s practices of obtaining the Mosaic score for 2 the dual purpose of marketing and for credit evaluations. Id. ¶ 69. Skiles further alleges that 3 “Experian knew, or should have known, that Tesla was using a consumer report for this 4 impermissible purpose when Experian integrated its consumer data systems with the Appstem 5 application and Salesforce profiles, such that Mosaic scores were automatically and 6 instantaneously produced with the driver’s license being scanned and uploaded to the Salesforce 7 profile.” Id. ¶ 80. 8 United States District Court Northern District of California 9 In arguing that these allegations adequately plead that the Mosaic score is a consumer report within the definition of the FCRA, Skiles relies heavily on the content of the Mosaic score 10 to support inferences that Experian expected Tesla and others to use the report for credit 11 determinations. See Dkt. No. 120 at 7; Dkt. No. 121 at 8. He argues that inclusion of such data 12 demonstrates that Experian intended for this information to be used in establishing credit, as well 13 as for marketing purposes. Dkt. No. 120 at 7; Dkt. No. 121 at 8. Similarly, he states that “[i]t can 14 be inferred from these facts that Experian expected the Mosaic Score would be utilized to 15 establishing consumer’s credit eligibility. Dkt. No. 120 at 8. 16 Much of this information supports my prior finding that the Mosaic score is a “written, 17 oral, or other communication of any information by a consumer reporting agency bearing on a 18 consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, 19 personal characteristics, or mode of living.” 15 U.S.C.A. § 1681a(d)(1). However, this 20 information does not necessarily lead to an inference that the report also satisfies the second prong 21 of the statute’s definition—that it is used or expected to be used or collected in whole or even in 22 part for the purpose of serving as a factor in establishing the consumer’s eligibility for credit- 23 related decisions. Id. To hold otherwise would render the second element of “consumer report” 24 superfluous. 25 The contents of the Mosaic score contradict an inference that the reports are collected, 26 used, or expected to be used for credit-related decisions. The documents cited in the SAC (and 27 incorporated by reference) and the documents in Skiles’s request for judicial notice 28 overwhelmingly portray the Mosaic score as a marketing tool. See Dkt. No. 122-3 at 3 (stating 4 United States District Court Northern District of California Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 5 of 9 1 that users of the Mosaic score “use it to maximize their engagement with customers to increase 2 loyalty, retention and value; drive profitable acquisition; and plan for the future” and touting its 3 ability to determine customer strategy, target customer audience, and analyze consumer behavior); 4 Dkt. No. 117-2 at 3 (“Through Mosaic, we provide marketers with the most accurate and 5 comprehensive view of their customers, prospects, and markets.”). Skiles does not identify a 6 single portion of the report or materials related to the report describing utility in evaluating credit 7 eligibility; statements describing a consumer as “credit aware” cannot reasonably be used to 8 determine credit eligibility. See Dkt. No. 122-3 at 19. 9 Skiles emphasizes the SAC’s assertion that the Mosaic score is created from Experian’s 10 Summarized Credit Statistics and points to its use of “summarized credit and automotive data.” 11 Dkt. No. 120 at 7, 16. The SAC describes this data as “information [that] effectively targets 12 consumers for a diverse range of marketing offers, such as invitations to apply for a credit card. . 13 .” SAC ¶ 31. But a “marketing offer” such as an invitation to apply for a credit card is not the 14 same thing as a determination of credit eligibility. See Tailford v. Experian Info. Sols., Inc., No. 15 SACV1902191JVSKESX, 2020 WL 2464797, at *2, 5 (C.D. Cal. May 12, 2020) (evaluating 16 Experian’s database that uses Summarized Credit Statistics, and stating that “using information to 17 identify a pool of potential credit applicants is not the same as using information to determine 18 credit eligibility”).1 The Experian documents show that aggregate statistics are used to create a Mosaic score. 19 20 Dkt. No. 123 at 4. While I held previously that this does not prevent a finding that the Mosaic 21 score satisfies the first prong of the “consumer report” definition, this fact does reduce the 22 plausibility of Skiles’s allegation that Experian expected the score to be used as a factor in 23 individual credit determinations. Accordingly, the content of the Mosaic score alone does not 24 support an inference that the score is a consumer report. 25 26 27 28 Skiles’s request for judicial notice and motion for leave to file a sur-reply are GRANTED. Dkt. Nos. 122, 125. Experian’s request for judicial notice refers in part to materials incorporated by the complaint, and is not opposed. To the extent I rely upon these materials in this Order, Experian’s request is GRANTED; it is otherwise DENIED AS MOOT. Dkt. No. 117-1. Tesla’s request for judicial notice, to which Skiles objects on authenticity grounds, is DENIED AS MOOT. Dkt. Nos. 118-1; 120-1. 5 1 Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 6 of 9 United States District Court Northern District of California 1 While the Mosaic score’s primary use as a marketing tool does not necessarily preclude it 2 from being a consumer report under the FCRA, the SAC lacks facts necessary to support this 3 inference. The remaining allegations in the SAC on this point are either conclusory or 4 implausible. Skiles alleges that Tesla offers credit financing services and thus would have reason 5 to use the report to make credit determinations. Dkt. No. 121 at 8. But the fact that Tesla offers 6 credit financing services does not mean that Experian would expect the Mosaic score to be used in 7 connection with those services. Notably, Skiles does not allege that the Mosaic score was used, 8 even as a factor, related to Tesla’s credit financing services. And in his opposition, he states that 9 he does not contend that Tesla in fact used the Mosaic score to make a determination of credit 10 eligibility for him. Dkt. No. 120 at 6. Skiles does not allege a single instance in which a Mosaic 11 score was used to make a credit eligibility determination by Tesla, nor has he alleged that Mosaic 12 scores are generally used by any other businesses as a factor in credit determinations. The 13 inference that Skiles proffers is too attenuated to raise the right to relief above a speculative level. 14 Skiles also alleges that Experian integrated its consumer data systems with the Appstem 15 application and Salesforce profiles, and that the expensive nature of Tesla cars reinforces 16 Experian’s expectation. Id. at 9. But he fails to explain how these facts support his allegations 17 that Experian expected the Mosaic score to be used in connection with a credit determination. 18 They do not facially support this inference. 19 Finally, the cases that Skiles cites for this point are distinguishable. In Hansen v. Morgan, 20 the report at issue was a credit report from the Pocatello Credit Bureau that fell “directly” within 21 the FCRA’s definition. 582 F.2d 1214, 1216, 1218 (9th Cir. 1978). There was little dispute that 22 the Pocatello Credit Bureau expected such a report to be used to assess credit worthiness. Id. at 23 1218. In Boothe v. TRW Credit Data, the court noted that there was a dispute of fact regarding the 24 nature of the report, and the defendants argued that it was a credit report on the plaintiff’s 25 business, not the plaintiff himself. 523 F. Supp. 631, 634 (S.D.N.Y. 1981). 26 Finally, in the Federal Trade Commission’s (“FTC”) Trans Union opinion, Trans Union 27 was undisputedly a consumer reporting agency. Dkt. No. 122-2 at 4. It gathered information on 28 consumers, including tradeline information, from credit grantors and used this information from 6 Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 7 of 9 1 its credit reporting database to sell to target marketers. Id. at 5. The FTC noted that Trans Union 2 was “in a special position” because it “has access to a vast array of very current and detailed 3 consumer information from its credit reporting business which affords it a distinct advantage as a 4 target marketer.” Id. Notably, the court held that “[a] purchaser of a Trans Union target 5 marketing list knows that every consumer included has at least one tradeline and possesses 6 whatever additional characteristics the purchaser has specified.” Id. at 14. Here, the information 7 in the Mosaic score is not alleged to be based upon tradeline information. And the information is 8 aggregate, a fact that the FTC noted distinguished Trans Union from its competitors. Id. at 11-12. 9 Skiles has failed to allege that the Mosaic score is a consumer report and, as a result, his FCRA 10 United States District Court Northern District of California 11 cause of action fails. Experian and Tesla also argue that Experian is not a “consumer reporting agency.” I agree. 12 “The term ‘consumer reporting agency’ means any person which, for monetary fees, dues, or on a 13 cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or 14 evaluating consumer credit information or other information on consumers for the purpose of 15 furnishing consumer reports to third parties, and which uses any means or facility of interstate 16 commerce for the purpose of preparing or furnishing consumer reports.” 15 U.S.C.A. § 1681a(f). 17 The SAC effectively alleges that because the Mosaic score is a consumer report, Experian is a 18 consumer reporting agency. SAC ¶¶ 59-60. Because the Mosaic score is not a consumer report, 19 this argument fails. 20 Moreover, Skiles fails to adequately state that, even if the Mosaic score were a “consumer 21 report” with respect to Tesla, that this Experian entity “regularly” provides consumer reports to 22 third parties. The SAC alleges nothing about Experian’s activities more broadly, stating only that 23 Experian provides the Mosaic score to “marketers around the world.” Dkt. No. 120 at 22. Again, 24 the target of the Mosaic score to “marketers” undermines Skiles’s contention that the Mosaic score 25 is a consumer report. Indeed, as the defendants point out, Skiles does not cite any cases in which a 26 court has found that this Experian entity is a “consumer reporting agency.” Dkt. No. 124 at 13. 27 Skiles has failed to allege that Experian Marketing Services, Inc. is a consumer reporting agency. 28 7 Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 8 of 9 1 II. SECTION 1681E Section 1681e states that “[e]very consumer reporting agency shall maintain reasonable 2 procedures designed to avoid violations of section 1681c of this title and to limit the furnishing of 3 consumer reports to the purposes listed under section 1681b of this title.” 15 U.S.C.A. § 1681e. 4 5 As I noted in my prior Order, “courts have held that a violation of 1681b is a prerequisite to a claim under Section 1681e.” Order at 8. Because the Mosaic score is not a consumer report, and 6 Skiles has failed to allege a violation of Section 1681b, this claim fails. 7 8 Moreover, Skiles again failed to “provide any facts regarding what effort, if any, Experian made to verify that the uses purportedly certified by Tesla complied with the FCRA.” Id. He does 9 not allege a separate violation of Section 1681e or any allegations specific to this section. He 10 argues that Experian’s knowledge that Tesla would use the Mosaic score for an impermissible 11 United States District Court Northern District of California purpose violates Section 1681e, but for the reasons above, this argument fails. He also asserts that 12 Experian failed to maintain reasonable procedures and states that “it would be impossible for a 13 plaintiff to know the exact policies and procedures of a CRA, or what specific steps a CRA took to 14 verify a third-party’s use at the pleading stage.” Id. He contends that “[c]ourts often look to the 15 facts plead regarding the violation of § 1681b itself to infer whether the CRA had reasonable 16 procedures.” Id. at 15. But Skiles has provided no facts at all regarding a violation of Section 17 1681e. His attempt to piggyback this claim onto his Section 1681b claim is not adequate to state a 18 claim. For these reasons, Skiles does not state a cause of action pursuant to Section 1681e. 19 20 III. WILLFUL VIOLATION Even if the SAC stated a claim for a violation of the FCRA, Skiles has not adequately 21 alleged that Experian or Tesla acted willfully. The parties agree that the defendants can only be 22 liable for FCRA violations if they were willful—either knowing or with reckless disregard for the 23 requirements imposed under the FCRA. Dkt. No. 117 at 13-14; Dkt. No. 118 at 10; Dkt. No. 120 24 25 at 10. They also agree that a “defendant that violates the FCRA based on an erroneous, but objectively reasonable, reading of the statute does not act recklessly.” Dkt. No 117 at 14; Dkt. No. 26 118 at 10; Dkt. No. 120 at 10-11. 27 Skiles largely recycles his conclusory arguments in support of his claim for FCRA 28 8 United States District Court Northern District of California Case 3:17-cv-05434-WHO Document 132 Filed 07/15/20 Page 9 of 9 1 violations, stating that Experian knew of Tesla’s impermissible use and knew or should have 2 known that its Mosaic report was a regulated credit report. Dkt. No. 121 at 17-25. He also argues 3 that the willfulness challenge is premature. Id. at 25. But even if the FCRA’s definition of 4 “consumer report” encompassed the Mosaic report, and even if Experian and Tesla did not have a 5 “permissible use” for that report, the law on this point is neither established nor clear. There is no 6 plausible argument that the law unambiguously demonstrated that the Mosaic score was a 7 consumer report or that Experian was a consumer reporting agency. Skiles pleads no additional 8 facts in the SAC that even suggest willfulness on the part of either defendant. See Tailford, 2020 9 WL 2464797, at *7 (C.D. Cal. May 12, 2020) (allegation that “Experian does, or should, 10 recognize the disclosure failures outlined” in the complaint was not sufficient to plead willful 11 violation of FCRA). Accordingly, even if Skiles had stated a valid FCRA claim, he cannot show 12 that Tesla or Experian acted willfully. CONCLUSION 13 14 For the above reasons, the defendants’ motions to dismiss are GRANTED. Because this is 15 Skiles’s third attempt to state a claim, and his allegations demonstrate that he cannot state a claim 16 for relief, the SAC is dismissed with prejudice and judgment will be entered accordingly. 17 18 IT IS SO ORDERED. Dated: July 15, 2020 19 20 William H. Orrick United States District Judge 21 22 23 24 25 26 27 28 9
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