Widman v. Trans Union, LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOVON WIDMAN, Case No.: 3:22-cv-01129-JAH-DEB 12 Plaintiff, ORDER 13 v. 1. GRANTING MOTION TO 14 TRANSUNION, LLC; EQUIFAX PROCEED IN FORMA PAUPERIS INFORMATION SERVICES, LLC; 15 [Doc. No. 2] EXPERIAN INFORMATION 16 SOLUTIONS, INC., 2. DISMISSING COMPLAINT 17 Defendants. WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) [Doc. 18 No. 1] 19 20 INTRODUCTION 21 On August 1, 2022, Jovon Widman (“Plaintiff”), proceeding pro se, filed a complaint 22 seeking damages against Transunion, LLC, Equifax Information Services, LLC, and 23 Experian Information Solutions, Inc (collectively, “Defendants”) for violation of the Fair 24 Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681. See Doc. No. 1. Plaintiff failed to pay 25 the required civil filing fees on time pursuant to 28 U.S.C. § 1914(a). Instead, Plaintiff filed 26 a motion for leave to proceed in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915(a). 27 See Doc. No. 2. After a careful review of the complaint and motion, and for reasons as set 28 1 forth below, the Court (1) GRANTS the motion for leave to proceed IFP; and (2) 2 DISMISSES the Complaint without prejudice and with leave to amend. 3 DISCUSSION 4 I. Plaintiff’s IFP Motion 5 All parties instituting any civil action, suit, or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee of 7 $452.1 See 28 U.S.C. § 1914(a). However, pursuant to 28 U.S.C. § 1915(a), if the plaintiff 8 is granted leave to proceed IFP, he may proceed despite failure to pay the entire fee. See 9 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 10 1176, 1177 (9th Cir. 1999). For a court to grant a leave to proceed IFP, the plaintiff is 11 required to submit an affidavit, including a statement of all their assets, showing their 12 inability to pay the statutory fee. See 28 U.S.C. § 1914(a). 13 In support of his motion, Plaintiff has submitted an application to proceed in district 14 court without prepaying fees or costs. See Doc. No. 2. The application indicates that 15 Plaintiff is employed and receives a gross pay of $553.35 and take-home pay or wages of 16 $504.94 bi-weekly. Id. at 1. Plaintiff does not receive any income from real property, 17 investments, retirement accounts, gifts, or alimony. Id. Moreover, the application indicates 18 that Plaintiff only has $1.53 in cash or in a checking or savings account. Id. at 2. Plaintiff 19 has monthly expenses of $650.00, resulting in a net disposable income of $359.88 per 20 month. Id. at 2. He indicates no other assets of value. Id. at 1-2. Based on these 21 representations, the Court finds that Plaintiff is unable to pay the required statutory fee. 22 Accordingly, the Court GRANTS Plaintiff’s motion for leave to proceed IFP. 23 /// 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $50 administrative fee does 28 1 II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) 2 A. Standard of Review 3 Pursuant to 28 U.S.C. § 1915(a), a plaintiff who seeks leave to proceed IFP, subjects 4 their Complaint to sua sponte review, and mandatory dismissal, if the action or appeal “is 5 frivolous or malicious; fails to state a claim on which relief may be granted; or seeks 6 monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 7 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015) (pursuant to 28 U.S.C. 8 § 1915(e)(2), “the court shall dismiss the case at any time if the court determines that… 9 (B) the action or appeal… (ii) fails to state a claim on which relief may be granted.”); Lopez 10 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (section 1915(e) “not only permits 11 but requires, a district court to dismiss an in forma pauperis complaint that fails to state a 12 claim.”). “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 15 1108, 1112 (9th Cir. 2012). 16 Rule 12(b)(6) challenges the sufficiency of the complaint. Navarro v. Block, 250 17 F.3d 729, 732 (9th Cir. 2001). A complaint may be dismissed as a matter of law because 18 of a “lack of a cognizable legal theory or insufficient facts under a cognizable legal claim”. 19 See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); Neitzke v. 20 Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim 21 on the basis of a dispositive issue of law”). If the plaintiff’s complaint fails to present a 22 cognizable legal theory that shows the plaintiff may be entitled to the relief sought by the 23 complaint, or alternatively presents a legal theory but fails to plead essential facts under 24 that theory, the complaint must be dismissed. Robertson, 749 F.2d at 534. Although Rule 25 12(b)(6) does not require detailed essential facts, it must plead sufficient facts that, if true, 26 “raise a right to relief above speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 27 544, 545 (2007). If the court finds a complaint fails to state a claim, the court should grant 28 1 leave to amend, unless it determines that the pleading could not possibly be cured by the 2 allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). 3 B. Insufficiency of the Complaint 4 Plaintiff only cites to 15 U.S.C. § 1681 of the FCRA and states that he attempted, 5 to disput[e] the completeness and/or accuracy of a tradeline by Capital 6 One . . . which was in a consumer reports concerning Plaintiff prepared, maintained, and published to others by Defendant, and 7 Defendant negligently and/or willfully failed to follow reasonable 8 procedures to assure maximum accuracy of the date in consumer reports concerning Plaintiff, and investigate, delete, or modify the 9 disputed information, and provide a response to plaintiff within 30 10 days of receipt of Plaintiff’s dispute.

11 Compl. at 1. Plaintiff’s complaint fails to specify which subsection of the FCRA that 12 Defendants have violated, and provides nothing more than conclusory statements alleging 13 a violation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the 14 elements of a cause of action, supported by mere conclusory statements, do not suffice.”) 15 (citation omitted). Furthermore, although it appears Plaintiff’s complaint is not frivolous, 16 the allegations contained therein are vague and the Court cannot discern whether he is 17 seeking relief for negligent violations of the FCRA, willful violations, or both. 18 Accordingly, Plaintiff’s complaint is DISMISSED with leave to amend. 19 Conclusion and Order 20 For all the reasons discussed above, IT IS HEREBY ORDERED: 21 1. Plaintiff’s Motion for Leave to Proceed IFP, pursuant to 28 U.S.C. § 1915(a), 22 [Doc. No. 2] is GRANTED; 23 2. The Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. § 24 1915(e)(2)(B)(ii); and 25 3. The Court GRANTS Plaintiff forty-five (45) days leave, from the filing date 26 of this Order, to file an amended Complaint which cures the deficiencies of 27 the pleading described herein. Plaintiff is cautioned, however, that should he 28 1 choose to file an Amended Complaint, it must be complete by itself, comply 2 with the Federal Rules of Civil Procedure, including Rule 8(a), and that any 3 claim not re-alleged will be considered waived. See S.D. Cal. Civ.L.R. 15.1; 4 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 5 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 6 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 7 dismissed with leave to amend which are not re-alleged in an amended 8 pleading may be “considered waived if not repled.” A failure to file an 9 Amended Complaint will result in dismissal of this action without further 10 order of the Court. 11 IT IS SO ORDERED. 12 DATED: August 9, 2020 13 14 _________________________________ JOHN A. HOUSTON 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28