Tatro v. Sterling Jewelers Inc. et al, No. 3:2017cv01305 - Document 120 (S.D. Cal. 2018)
Court Description: ORDER granting Defendants First Premier Bank and Bill Me Later's Motions to dismiss (Doc. Nos. 74 , 75 ) and denying Defendant Bill Me Later's Motion to dismiss (Doc. Nos. 88 ). Signed by Judge John A. Houston on 12/17/2018. (All non-registered users served via U.S. Mail Service)(jpp)
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Tatro v. Sterling Jewelers Inc. et al Doc. 120 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MICHAEL P. TATRO, Case No.: 17cv1305-JAH (MSB) Plaintiff, 11 12 v. 13 STERLING JEWELERS, INC., a Delaware corporation; T-MOBILE, U.S.A., INC.; a Delaware corporation; MACY’S RETAIL HOLDINGS, INC., a New York corporation; TARGET CORPORATE SERVICES, INC., a Minnesota corporation; RAC ACCEPTANCE, LLC, a Delaware Limited Liability Company; VERIZON NEW ENGLAND, INC., a New York corporation; DFS SERVICES, INC., a Delaware Limited Liability Company, APPLE INC., a California corporation; FDS BANK, FSB, A Federal Savings Bank; SONY ELECTRONICS, INC., California corporation; VERIZON WIRELESS, LLC, A Delaware Limited Liability Company; NEXTEL COMMUNICATIONS OF THE MIDATLANTIC., a Delaware corporation; BILL ME LATER, INC., a Delaware corporation; DIRECTV, LLC, a California Limited Liability Company, TD BANK, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS FIRST PREMIER BANK AND BILL ME LATER’S MOTIONS TO DISMISS (Doc. Nos. 74, 75) AND DENYING DEFENDANT BILL ME LATER’S MOTION TO DISMISS (Doc. No. 88) 1 17cv1305-JAH (MSB) Dockets.Justia.com 1 15 USA, NA, a National Banking Association; CREDIT ONE BANK, NA, a National Banking Association; FIRST PREMIER BANK, a National Banking Association; CAPITAL ONE BANK, USA, NA. a National Banking Association; SYNCRONY BANK; BANK OF AMERICA CORPORATION; PNC FINANCIAL SERVICES, GROUP, INC.; MIDLAND CREDIT MANAGEMENT, INC., a Kansas corporation; THE NORTHLAND GROUP, INC., a Minnesota corporation; WELLS FARGO CARD SERVICES, INC., a Iowa corporation, WELLS FARGO BANK, NA, a National Banking Association; CONSUMERINFO.COM, INC., a California corporation; CAPITAL ONE AUTO FINANCE, a Texas corporation; G.E. CAPITAL FINANCIAL, TRANS UNION INTERACTIVE, a California company, 16 Defendants. 2 3 4 5 6 7 8 9 10 11 12 13 14 17 18 INTRODUCTION 19 Pending before the Court is Defendant First Premier Bank’s (“First Premier Bank”) 20 motion to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(2) of the Federal Rules of 21 Civil Procedure. Doc. No. 74. Also pending before the Court is Defendant Bill Me Later’s 22 motions to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of 23 Civil Procedure. Doc. Nos. 75, 88. The motions are fully briefed and unopposed. The 24 Court construes Bill Me Later’s second motion to dismiss (Doc. No. 88) as duplicative of 25 Bill Me Later’s first motion to dismiss (Doc. No. 75). After careful review of the pleadings, 26 and for the reasons set forth below, the Court GRANTS First Premier Bank’s motion to 27 dismiss (Doc. No. 74); GRANTS Bill Me Later’s first motion to dismiss (Doc. No. 75); 28 and DENIES Bill Me Later’s second motion to dismiss (Doc. No. 88) as moot. 2 17cv1305-JAH (MSB) 1 BACKGROUND 2 On June 26, 2017, Plaintiff filed a complaint against all named defendants, alleging 3 they mishandled his financial information. See Doc. No. 1. Plaintiff alleges federal claims 4 under the Fair Credit Reporting Act (“FCRA”) and Fair Debt Collection Practices Act 5 (“FDCPA”). Id. Plaintiff also alleges Rhode Island state law claims. Id. Specifically, 6 Plaintiff makes the following claims: (1) Willful, wanton, and reckless disregard; (2) 7 Violations of the Fair Credit Reporting Act (“FRCA”); (3) Violations of Rhode Island’s 8 Impersonation and Identity Fraud Act; and (4) Intrusion on Plaintiff’s Rhode Island state 9 law right to privacy. Id. On March 13, 2018, First Premier Bank filed a motion to dismiss 10 pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for a lack of personal 11 jurisdiction. Doc. No. 74. On the same day, March 13, 2018, Bill Me Later filed a motion 12 to dismiss pursuant to Rule 12(b)(6) of Federal Rules of Civil Procedure for failure to state 13 a claim. Doc. No. 75. On April 23, 2018, Plaintiff filed a document requesting additional 14 time to respond to Defendants’ motions to dismiss. Doc. No. 78. Plaintiff filed what the 15 Court construes to be a motion to stay proceedings on the same day, April 23, 2018. Doc. 16 No. 79. On May 2, 2018, this Court GRANTED Plaintiff’s motion to stay proceedings and 17 stayed proceedings until July 1, 2018. On July 25, 2018, Bill Me Later filed what the Court 18 construes to be an identical motion to dismiss (Doc. No. 88) to the motion filed on March 19 13, 2018 (Doc. No. 75). 20 The Ninth Circuit has held that a district court may properly grant a motion to 21 dismiss as unopposed pursuant to a local rule where the local rule permits, but does not 22 require, the granting of a motion for failure to respond. See Ghazali v. Moran, 46 F.3d 52, 23 53 (9th Cir. 1995). Civil Local Rule 7.1.f.3.c provides that “[i]f an opposing party fails to 24 file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may 25 constitute a consent to the granting of a motion or other request for ruling by the court.” 26 Although the Court may grant Defendants’ motions to dismiss as unopposed, in the 27 interests of justice, the Court addresses the merits below. 28 // 3 17cv1305-JAH (MSB) 1 2 3 DISCUSSION I. Legal Standard a. Rule 12(b)(2) 4 Under Rule 12(b)(2), a court may dismiss a case for lack of jurisdiction over the 5 person. The Ninth Circuit has established a two prong test for determining if the Court’s 6 assertion of personal jurisdiction is proper. Jurisdiction must comport with: (1) the state 7 long-arm statute, and (2) the constitutional requirement of due process. Mattel, Inc., v. 8 Greiner & Hausser GMBH, 354 F.3d 857, 863 (9th Cir. 2003) (quoting Ziegler v. Indian 9 River County, 64 F.3d 470, 473 (9th Cir. 1995)). 10 As to the first prong, California’s long arm statute provides that “a court of this state 11 may exercise jurisdiction on any basis not inconsistent with the Constitution of this State 12 or of the United States.” Cal. Civ. Proc. Code § 410.10. Because California law allows the 13 exercise of jurisdiction to the same extent as due process under the United States 14 Constitution, the only question is whether the exercise of jurisdiction over the defendant is 15 constitutional. See Mattel, 354 F.3d at 863. Under a due process analysis, the Court may 16 only exercise jurisdiction in accord with “traditional notions of fair play and substantial 17 justice,” thus the nonresident defendant is required to have “certain minimum contacts” 18 with the forum state in order for jurisdiction to be proper. Id. (quoting International Shoe 19 Co. v. Washington, 326 U.S. 310, 316 (1945)). 20 Personal jurisdiction may be found where the defendant’s activities subject him to 21 either general or specific jurisdiction. General jurisdiction exists where a nonresident 22 defendant’s activities within a state are “substantial” or “continuous and systematic.” Data 23 Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). 24 In the absence of general jurisdiction, a nonresident defendant may still be sued in the 25 forum if specific jurisdiction exists. Id. The Ninth Circuit has established a three part test 26 to determine whether there is specific jurisdiction over a defendant: 27 28 ‘Specific’ jurisdiction exists if (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed 4 17cv1305-JAH (MSB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 himself of the privilege of conducting activities in the forum, (2) the claim arises out of or results from the defendant’s forum-related activities, and (3) the exercise of jurisdiction is reasonable. Mattel, 354 F.3d at 863 (quoting Bancroft & Masters v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)). b. Rule 12(b)(6) A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give “detailed factual allegations,” he must plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, “the nonconclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. When ruling on a motion to dismiss, the Court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached 5 17cv1305-JAH (MSB) 1 to the complaint when authenticity is not contested, and matters of which the Court takes 2 judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court 3 determines that a complaint fails to state a claim, the court should grant leave to amend 4 unless it determines that the pleading could not possibly be cured by the allegation of other 5 facts. 6 II. Analysis 7 First Premier Bank argues that this Court does not have general jurisdiction because 8 First Premier Bank is not headquartered or incorporated in California. Doc. No. 74 at pgs. 9 4-5. First Premier Bank also contends that this Court does not have specific jurisdiction 10 because First Premier Bank does not have any connections to California. Id. at pgs. 5-6. 11 Bill Me Later argues that there is no such cause of action as “willful, wanton, and 12 reckless disregard.” Doc. 75-1 at pg. 9. Bill Me Later contends that even if this cause of 13 action was interpreted as an FCRA claim, it is still duplicative of the second cause of action. 14 Id. Bill Me Later argues that Plaintiff fails to allege facts to state a claim under the FCRA. 15 Id. at pgs. 9-10. Bill Me Later asserts Plaintiff fails to show that Bill Me Later engaged in 16 any ‘willful’ wrongdoing. Id. at pgs. 10-11. Bill Me Later contends that Plaintiff does not 17 have standing under Rhode Island law, and Rhode Island law is irrelevant in this case. Id. 18 at pgs. 11-12. Bill Me Later asserts that Plaintiff’s allegations are legal conclusions and 19 insufficient. Id. at pg. 12. Bill Me Later argues that Plaintiff’s Rhode Island claims are 20 untimely. Id. at pgs. 12-13. 21 The Court will first address First Premier Banks’ motion to dismiss for lack of 22 jurisdiction. The Court will then address Bill Me Later’s motions to dismiss for failure to 23 state a claim. 24 a. Personal Jurisdiction 25 Plaintiff bears the burden of making a prima facie showing that jurisdiction is proper. 26 Mattel, 354 F.3d at 862 (citing Harris Rutsky, 328 F.3d at 1128). “To make that showing, 27 [a plaintiff] need only demonstrate facts that, if true, would support jurisdiction over the 28 [d]efendants.” Id. The Court finds that Plaintiff does not make a prima facie showing that 6 17cv1305-JAH (MSB) 1 this Court has personal jurisdiction over First Premier Bank. First Premier Bank is not 2 headquartered or incorporated in California. See Doc. No. 74 at pgs. 4-5. Further, Plaintiff 3 does not show that First Premier Bank has sufficient contacts with the state of California. 4 “‘Conflicts between the facts contained in the parties’ affidavits must be resolved in 5 [plaintiff’s] favor for purposes of deciding whether a prima facie case for personal 6 jurisdiction exists.’” AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 7 1996); see also Doe v. Unocal Corp.,, 922 (9th Cir. 2001). The Court finds here, there is 8 no conflict of facts, but rather Plaintiff has not alleged facts to make a prima facie showing 9 that jurisdiction is proper. Thus, the Court GRANTS First Premier Bank’s motion to 10 dismiss (Doc. No. 74). 11 b. Failure to State a Claim 12 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 13 truth of all factual allegations and must construe all inferences from them in the light most 14 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 15 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). This Court follows 16 Ninth Circuit rule in noting that legal conclusions need not be taken as true merely because 17 they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 18 (9th Cir. 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The 19 Court finds while Plaintiff asserts that he was a customer of Bill Me Later, Plaintiff does 20 not plead sufficient facts to suggest Bill Me Later engaged in any wrongdoing. Plaintiff 21 asserts that he was not involved in the credit transactions when the alleged wrongdoing 22 occurred, but Plaintiff does not adequately plead Bill Me Later’s wrongdoing in those 23 credit transactions. Plaintiff does not offer any facts in support of his claims against Bill 24 Me Later. The Court finds Plaintiff fails to “raise a right to relief above the speculative 25 level.” See Twombly, 550 U.S. at 545. Thus, the Court GRANTS Bill Me Later’s motion 26 to dismiss (Doc. No. 75). Accordingly, the Court DENIES Bill Me Later’s second motion 27 to dismiss (Doc. No. 88) as moot because it is duplicative. 28 // 7 17cv1305-JAH (MSB) 1 CONCLUSION 2 Based on the foregoing reasons, IT IS HEREBY ORDERED THAT Defendant 3 First Premier Bank and Defendant Bill Me Later’s motions to dismiss (Doc. Nos. 74, 75) 4 are GRANTED. Plaintiff’s complaint against Defendants First Premier Bank and Bill Me 5 Later is DISMISSED without prejudice. Defendant Bill Me Later’s second motion to 6 dismiss (Doc. No. 88) is DENIED as moot. 7 8 IT IS SO ORDERED. 9 10 DATED: December 17, 2018 11 12 13 _________________________________ JOHN A. HOUSTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 17cv1305-JAH (MSB)
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