Bath v. Am. Express Co.

• Decision Date: 31 May 2019
• Docket Number: Civil Action No. 19-cv-00606-RM-NYW
• Parties: BRIAN BATH, Plaintiff, v. AMERICAN EXPRESS COMPANY; J.P. MORGAN CHASE NATIONAL CORPORATE SERVICES; LEXISNEXIS RISK SOLUTIONS, INC.; FIRST PREMIER BANK; REALPAGE d/b/a Leasing Desk; PAYPAL INC.; SYNCHRONY BANK; WELLS FARGO BANK, NATIONALASSOCIATION; TD BANK; Defendants.
• Court: U.S. District Court — District of Colorado

BRIAN BATH, Plaintiff, v. AMERICAN EXPRESS COMPANY; J.P. MORGAN CHASE NATIONAL CORPORATE SERVICES;LEXISNEXIS RISK SOLUTIONS, INC.; FIRST PREMIER BANK;REALPAGE d/b/a Leasing Desk; PAYPAL INC.; SYNCHRONY BANK;WELLS FARGO BANK, NATIONALASSOCIATION; TD BANK; Defendants.

Civil Action No. 19-cv-00606-RM-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

May 31, 2019

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER

Magistrate Judge Nina Y. Wang

This matter comes before the court on nine pending motions filed by both Plaintiff Brian Bath ("Plaintiff" or "Mr. Bath") and the various Defendants. The court considers the following motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated March 4, 2019 [#20], and the associated memoranda identified below:

(1) PayPal, Inc.'s Amended Motion to Dismiss ("PayPal's Amended Motion to Dismiss") [#56] which the was referred to the undersigned Magistrate Judge by the Memorandum dated March 11, 2019 [#57]; (2) LexisNexis Risk Solutions, Inc.'s Amended Motion to Dismiss Plaintiff's Complaint ("LexisNexis' Amended Motion to Dismiss") [#63], referred by the Memorandum dated March 14, 2019 [#67];

(3) Defendant American Express Company's Amended Motion to Dismiss Plaintiff's Complaint [#65] ("American Express' Amended Motion to Dismiss"), referred by the Memorandum dated March 14, 2019 [#66];

(4) Defendant TD Bank USA, N.A.'s Motion for Dismissal Under Rules 12(b)(4)-(6) [#68] ("TD Bank's Motion to Dismiss"), referred by the Memorandum dated March 18, 2019 [#69];

(5) Defendant Realpage Inc.'s Motion to Dismiss [#81] ("Realpage's Motion to Dismiss"), referred by the Memorandum dated April 2, 2019 [#82];

(6) Plaintiff Brian Bath's Motion for Appointment of Counsel [#83] ("Plaintiff's Motion to Appoint Counsel"), referred by the Memorandum dated April 9, 2019 [#84];

(7) Defendant First Premier Bank's Motion for Judgment on the Pleadings [#107] ("First Premier's 12(c) Motion"), referred by the Memorandum dated April 24, 2019 [#108];

(8) Plaintiff Brian Bath's Motion for Leave to Amend Original Complaint [#109] ("Plaintiff's Motion to Amend"), referred by the Memorandum dated April 30, 2019 [#110], and;

(9) Defendants American Express National Bank (misnamed as "American Express Company"); First Premier Bank; LexisNexis Risk Solutions Inc.; PayPal, Inc.; RealPage, Inc.; TD Bank USA, N.A. (misnamed as "TD Bank"); and Wells Fargo Bank, N.A's Joint Motion for Discovery-Management Order [#112] ("Motion for Discovery Management Order"), referred by the Memorandum dated May 3, 2019 [#113].

Not all Motions have been fully briefed, but the court nonetheless finds it appropriate to proceed. D.C.COLOLCivR 7.1(d). For the reasons stated herein, it is respectfully RECOMMENDED that: LexisNexis' Motion to Dismiss, American Express' Motion to Dismiss, and First Premier's 12(c) Motion be GRANTED; that PayPal's Motion to Dismiss and TD Bank's Motion to Dismiss be GRANTED IN PART AND DENIED IN PART; and Plaintiff's Motion to Amend be DENIED. Additionally, it is ORDERED that that Plaintiff's Motion to Appoint Counsel is DENIED and the Defendants' Motion for Discovery Management Order is GRANTED and discovery in this matter is STAYED pending the presiding judge's, the Honorable Raymond P. Moore, ruling on this Recommendation and the currently outstanding motions.

BACKGROUND

Plaintiff Brian Bath originally filed this case in Denver District Court, and Defendant PayPal, Inc. ("PayPal") removed it to this court on March 1, 2019, invoking the court's diversity jurisdiction under 28 U.S.C. § 1332.¹ [#1]. The operative Complaint [#4] identified several Defendants: American Express Company ("American Express"); Capital One; LexisNexis Risk Solutions, Inc. ("LexisNexis"); First Premier Bank; OneMain Financial Group ("OneMain"); RealPage d/b/a Leasing Desk ("RealPage"); PayPal; Synchrony Bank ("Synchrony"); Bank of America; Wells Fargo Bank, National Association ("Wells Fargo"); and TD Bank. [#4].² Mr. Bath asserts claims for Fraud ("Count I"), Conversion ("Count II"), and Theft ("Count III")relating to allegedly inaccurate credit records maintained by the three credit-reporting agency defendants: Experian credit file #0610-5540-48 ("the Experian File"); Trans Union credit file #310634414 ("the Trans Union File"), and; Equifax credit file #9003044461 ("the Equifax file"; collectively "Credit Files"). [Id. at ¶¶ 14, 21, 22]. Although Mr. Bath references sending dispute letters regarding these accounts, [id. at ¶¶ 15, 17, 19, 23, 24, 28, 30, 32, 36, 38, 40, 42], he does not appear to allege that the information contained in the Credit Files is inaccurate. Rather, Mr. Bath's claims appear to be based on the allegedly inappropriate queries of his Credit Files by the Defendants who are not credit reporting agencies. See generally [#4].

On March 8, 2019, LexisNexis, PayPal, and American Express moved to dismiss Mr. Bath's claims against them, respectively. The presiding judge, the Honorable Raymond Moore, denied these motions without prejudice for failure to comply with his Practice Standards on March 8, 2019. [#49; #50; #51]. Then on March 11, 2019, PayPal filed an Amended Motion to Dismiss. [#56]. Two days later, LexisNexis and American Express filed their respective Amended Motions to Dismiss. [#63; #65]. Then on March 15, 2019, TD Bank filed its Motion to Dismiss [#68], and RealPage followed suit on April 1, 2019 [#81]. Finally, on April 23, 2019, First Premier Bank moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. [#107].

Mr. Bath moved the court for appointment of counsel on April 8, 2019. [#83]. On April 29, 2019, Plaintiff moved for leave to file an Amended Complaint, to "correct the original complaint to sufficient plead facts," among other reasons. [#109 at 1]. Shortly thereafter, Defendants moved for a discovery management order, stating that Mr. Bath had begun propounding discovery improperly because the court had not yet held a Scheduling Conference pursuant to Rule 16(b) of the Federal Rules of Civil Procedure. [#112].

The court now considers all pending motions in this case in this omnibus Recommendation and Order, beginning with Defendants' respective motions challenging the viability of the operative Complaint, then considering whether Mr. Bath should be permitted leave to amend, and finally turning to Mr. Bath's request for appointment of counsel.

ANALYSIS

I. Legal Standards

A. Personal Jurisdiction

"A federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (observing that without jurisdiction the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case). Though a motion to dismiss pursuant to Rule 12(b)(6) considers the sufficiency of the operative pleading and does not weigh the potential evidence that the parties might present in the case, see Pirraglia v. Novell, Inc., 339 F.3d 1182, 1187 (10th Cir. 2003), Rule 12(b)(6) judgments are considered by the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") a dismissal on the merits. See Slocum v. Corp. Exp. U.S. Inc., 446 F. App'x 957, 960 (10th Cir. 2011) (observing that a Rule 12(b)(6) dismissal is considered an adjudication on the merits since it requires an evaluation of the substance of a complaint). Accordingly, this court first considers whether Mr. Bath has established personal jurisdiction over RealPage.

Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to challenge the court's exercise of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Plaintiff bears the burden of demonstrating that the court has personal jurisdiction over the Defendants. See Dudnikov v. Chalk& Vermilion Fine Arts, 514 F.3d 1063, 1069 (10th Cir. 2008). When, as here, the court decides a Rule 12(b)(2) motion to dismiss without holding an evidentiary hearing, "the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion." AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008). "The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). In considering this question, the court must accept all well pleaded facts as true and must resolve any factual disputes in favor of the plaintiff. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).

To establish jurisdiction over a non-resident defendant, a plaintiff must show that the exercise of jurisdiction is authorized under the relevant state long-arm statute and does not offend due process. Wenz, 55 F.3d at 1506 (10th Cir. 1995). Because the Colorado Supreme Court has determined that Colorado's long-arm statute, Colo. Rev. Stat. § 13-1-124 (2018), is coextensive with due process requirements, Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270 (Colo. 2002), the inquiry is thus simplified into one basic question: whether the exercise of personal jurisdiction comports with the requirements of due process under the Fourteenth Amendment to the United States Constitution. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008).

However, even if this test is met, a court must still consider whether "the exercise of personal jurisdiction over the defendant offends traditional notions of fair play and substantial justice." OMI Holdings, 149 F.3d at 1091. In this inquiry the court considers: (1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiff's interest in...