Barnum v. Equifax Info. Servs., LLC
| Decision Date | 17 May 2017 |
| Docket Number | No.: 2:16-cv-2866-RFB-NJK,: 2:16-cv-2866-RFB-NJK |
| Parties | SHARON BARNUM; JERRY P. CABEBE, ROBERT SUSTRIK, and all similarly situated individuals, Plaintiffs, v. EQUIFAX INFORMATION SERVICES, LLC, Defendant. |
| Court | U.S. District Court — District of Nevada |
Matthew I. Knepper, Esq.
KNEPPER & CLARK LLC
10040 W. Cheyenne Ave., Suite 170-109
Las Vegas, NV 89129
Phone: (702) 825-6060
FAX: (702) 447-8048
Email: matthew.knepper@knepperclark.com
Email: miles.clark@knepperclark.com
David H. Krieger, Esq.
Email: dkrieger@hainesandkrieger.com
Attorneys for Plaintiff
Pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiffs Sharon Barnum, Jerry P. Cabebe, and Robert Sustrik (collectively, "Plaintiffs") move for leave to file a second amended complaint. Most significantly, since the filing of Plaintiffs' First Amended Complaint, the Ninth Circuit has recently handed down specific guidance regarding the scope of a concrete informational injury, and Plaintiffs seek amendment largely to conform several of their damages-based allegations to reflect this new Ninth Circuit guidance. Plaintiffs also wish to clarify their proposed class definition. Plaintiffs consequently seek to adjust their discussion of the viability of their proposed class claims in light of the two proposed modifications. Plaintiffs' request to amend their Complaint comes more than a month in advance of the leave-to-amend deadline, and approximately four months prior to the close of discovery. Plaintiffs have been diligent in seeking to bring their proposed amended complaint now, and defendant Equifax Information Services, LLC ("Equifax") will suffer no prejudice as a result of having to address the refashioned allegations in Plaintiffs' proposed new pleading. This is Plaintiffs' first motion for leave to amend their complaint.
This Motion is supported by the following Memorandum of Points and Authorities, the pleadings and other filings in this case, and the proposed second amended complaint attached hereto as Exhibit A.
Plaintiffs allege that notifying Equifax in writing of claimed inaccuracies on their Equifax credit reports, Equifax failed to timely notify them and a class of similarly situated disputing consumers of the results of its reinvestigations and/or other dispute determinations following completion and/or termination of a reinvestigation of a consumer dispute, as required by 15 U.S.C. § 1681i. Plaintiffs and proposed class members (1) submitted written disputes to Equifax, (2) triggering the same statutory reinvestigation duties, but (3) Equifax failed to properly notify each of them results of its reinvestigations, which (4) damaged Plaintiffs and Class members in generally the same manner.
Plaintiff Jerry Cabebe originally sued Equifax in mid-December 2016, and brought an amended complaint as a matter of right the next day. After Plaintiffs filed their First Amended Complaint, the Ninth Circuit handed down its decision in Syed v. M-I, Inc., for which arehearing occurred on March 20, 2017.1 Among other things, the Syed panel found that "[b]y providing a private cause of action for violations . . . Congress has recognized the harm such violations cause, thereby articulating a 'chain[] of causation that will give rise to a case or controversy.'"2 The Syed panel also concluded that the Plaintiff's allegations were "sufficient to infer that [the Plaintiff] was deprived of the right to information" which Congress, through the FCRA, had guaranteed him.3 While Plaintiffs do not believe that Syed constitutes "new law" in this Circuit, its decision and subsequent discussion of what constitutes a "concrete informational injury" certainly informs Plaintiffs' allegations regarding how Equifax deprived Plaintiffs and a proposed class of similarly situated individuals of their Congressionally authorized right to information under Section 1681i - i.e., timely notification from Equifax regarding the results of their consumer disputes. Based on the very recent authority in Syed, Plaintiffs believe that a minor modification of their damage allegations is warranted, as the reasoning of Syed can properly apply to their claim under Section 1681i. They have updated their damages allegations to more specifically state the same.
Plaintiffs also wish to update their proposed class definition, in order to better clarify the categories of potential class Plaintiffs. To be sure, the scope of their proposed class will not change as a result of amendment; instead, their proposed modifications are designed to assist both Plaintiff and Equifax in more precisely ascertaining the proposed class, and also in facilitating class-based discovery in the event their proposed class is ultimately certified.
Based on this change, Plaintiffs also seek to update their discussion of why class-based relief is warranted. Finally, Plaintiffs wish to make several minor changes to their Compliant to clarify several of their damages allegations.
All of the leave-to-amend factors the Court must consider under the seminal authority of Foman v. Davis are satisfied.4 Plaintiffs have not unduly delayed bringing this proposed amendment, as it comes a reasonable time after the Syed decision and more than a month prior to the leave-to-amend deadline; indeed, since approximately four months remain to conduct discovery, a presumption against finding undue delay applies. Equifax will not be prejudiced by this amendment, as written discovery has only recently commenced and in fact no written discovery requests have yet been exchanged by the parties; in fact, Plaintiffs' proposed amendments are designed to bring greater clarity to the certification and class-wide discovery process, which arguably results in a benefit to Equifax. There is no evidence of bad faith on Plaintiffs' part. Because Plaintiffs' proposed modifications to their Complaint are all reasonably related to their original allegations, they are not futile. And, while Plaintiffs did previously amend their complaint just after filing the complaint, that amendment came as a matter of right, and so Plaintiffs have not failed to conform their proposed amendments to a judicial directive or exhume them from the grave of prior dismissal. For all of these reasons, the Court should grant Plaintiffs' motion for leave to amend.
Ms. Barnum obtained an Equifax credit report dated July 10, 2016. After review, she believed that several tradelines contained inaccurate information. On or about August 2, 2016, Ms. Barnum disputed the allegedly derogatory information on her credit report by notifying Equifax in writing of the claimed inaccuracies, and requesting that this information be corrected. Ms. Barnum mailed her dispute letter to Equifax certified, return receipt.5
Mr. Cabebe obtained an Equifax credit report dated May 5, 2016. After review, he believed that a number of allegedly reported inaccurate, derogatory information. On or about July 14, 2016, Mr. Cabebe disputed the allegedly derogatory information on his credit report by notifying Equifax in writing of the claimed inaccuracies, and requesting that this information be corrected. Mr. Cabebe mailed his dispute letter to Equifax certified, return receipt.6
Mr. Sustrik obtained an Equifax credit report dated July 2, 2016. After review, he believed that a number of allegedly reported inaccurate, derogatory information. On or about August 18, 2016, Mr. Sustrik disputed the allegedly derogatory information on his credit report by notifying Equifax in writing of the claimed inaccuracies, and requesting that this information be corrected. Mr. Sustrik mailed his dispute letter to Equifax certified, return receipt.7
After receipt of Plaintiffs' respective dispute letters (collectively, "Plaintiffs' Dispute Letters"), Equifax was required to conduct a reasonable reinvestigation of each respective dispute to determine whether the disputed information was inaccurate under 15 U.S.C. § 1681i, which in turn required Equifax to provide the disputed information to the relevant furnishers of that information, as applicable, no later than five days after receipt of Plaintiffs' Dispute Letters. 15 U.S.C. § 1681i(a)(2)(A).8
Equifax was required to conduct this reinvestigation before the end of the 30-day period after receiving each of the Plaintiffs Dispute Letters under 15 U.S.C. § 1681i(a)(1)(A). This period could be extended for not more than 15 days under Section 1681i(a)(1)(B) if Equifax received additional relevant information from any of the Plaintiffs during the 30-day reinvestigation period, but none of the Plaintiffs provided additional relevant information toEquifax during the operative period, and so Equifax's deadlines to reinvestigate and notify any of the Plaintiffs were not extended. After completing its reinvestigation, Equifax was required to notify each of the Plaintiffs of the results of its reinvestigation in writing no later the five day after completion. 15 U.S.C. § 1681i(a)(6)(A).9
However, Equifax never timely responded to any of the Plaintiffs Dispute Letters by notifying each of the Plaintiffs, in writing or otherwise, that it had either completed its reinvestigation of her dispute, or determined that the dispute was frivolous and/or irrelevant and terminated its reinvestigation. Because Equifax failed to timely responded to any of the Plaintiffs' Dispute Letters, none of the Plaintiffs knew whether Equifax timely notified any of the relevant furnishers of disputed...
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