Bath v. Experian Info. Sols., Inc.
| Decision Date | 10 May 2019 |
| Docket Number | Civil Action No. 19-cv-00106-RM-NYW |
| Parties | BRIAN BATH, on behalf of himself and all other similarly situated individuals; Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC.; TRANS UNION, LLC; LEXISNEXIS RISK SOLUTIONS, INC.; AMERICAN EXPRESS COMPANY; PAYPAL; WELLS FARGO MERCHANT SERVICES, LLC; REALPAGE, INC.; TD BANK; FIRST PREMIER BANK; and Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER TO SHOW CAUSE, RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, AND ORDER
This matter comes before the court on several pending motions by both Plaintiff Brian Bath ("Plaintiff" or "Mr. Bath") and the various Defendants:
(1) Motion of Defendant American Express National Bank ("American Express") to Dismiss Plaintiff's Amended Complaint ("American Express' Motion to Dismiss") [#88, filed February 19, 2019];
(2) LexisNexis Risk Solutions, Inc.'s Motion to Dismiss Plaintiff's First Amended Class Action Complaint ("LexisNexis' Motion to Dismiss") [#89, filed February 19, 2019]; (3) Plaintiff Brian Bath Answer and Motionto Strike From the Record Defendant Experian Information Solutions Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath1 ("Plaintiff's First Motion for Summary Judgment") [#91, filed February 19, 2019];
(4) Plaintiff Brian Bath Answer and Motionto Strike From the Record Defendant Trans Union Answer and In the Alternative Grant Full or Partial Summary Judgement for Plaintiff Bath ("Plaintiff's Second Motion for Summary Judgment") [#106, filed February 25, 2019];
(5) Defendant Trans Union LLC's Objections and Motion to Strike Plaintiff's Summary Judgment Evidence ("Trans Union's Motion to Strike") [#136, filed March 18, 2019];
(6) Defendant Equifax Information Services LLC's Motion to Enforce the Settlement Agreement ("Equifax's Motion to Enforce") [#138, filed March 19, 2019];
(7) Plaintiff's Unopposed Motion to Amend "Compaint" ("Plaintiff's Motion to Amend") [#144, filed March 21, 2019];
(8) Well Fargo Bank, N.A.'s Motion to Enforce Settlement ("Wells Fargo's Motion to Enforce") [#145, filed March 21, 2019]; and
(9) Defendants' Joint Motion for Protective Order [#171, filed May 7, 2019].
These Motions were referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b); the Order Referring Case dated January 29, 2019 [#59]; and various Memoranda [#92, #107, #137,#143, #149, #172]. Upon consideration of the Motions, this court respectfully RECOMMENDS that: American Express' Motion to Dismiss be GRANTED; LexisNexis' Motion to Dismiss be GRANTED; Plaintiff's First Motion for Summary Judgment be DENIED; Plaintiff's Second Motion for Summary Judgment be DENIED; Trans Union's Motion to Strike be DENIED; Equifax's Motion to Enforce be STRUCK; and Plaintiff's Motion to Amend be DENIED; and Wells Fargo's Motion to Enforce be GRANTED. In light of the Recommendation, this court GRANTS the Joint Motion for Protective Order, and STAYS discovery pending the resolution of this Recommendation by the presiding judge, the Honorable Raymond Moore.
Plaintiff Brian Bath initiated a Class Action Complaint against various defendants,2 including but not limited to Experian Information Solutions, Inc. ("Experian"), in Denver District Court on December 10, 2018, alleging theft and fraud; fraudulent conversion; and violations of the Federal Credit Report Act, 15 U.S.C. § 1681 et seq. [#3]. On January 4, 2019, Experian filed an Answer to the Complaint. [#20]. On January 11, 2019, Experian removed the action to this court, based on the FCRA claims. [#1]. On January 18, 2019, Trans Union LLC ("Trans Union") filed its Answer and Defenses to Plaintiff's Complaint. [#46]. Other defendants, including Wells Fargo Merchant Services, LLC ("Wells Fargo") and Lexis Nexis Risk Solutions ("LexisNexis") filed motions to dismiss. See, e.g., [#38, 48].
Plaintiff then moved to amend his Complaint on January 28, 2019, representing that his request was unopposed. [#57]. Three days later, Mr. Bath also moved to strike the motions todismiss. [#64; #65; #66; #67]. Though certain defendants took issue with the characterization of Plaintiff's motion to amend as "unopposed," they acknowledged that Plaintiff was permitted to amend as a matter of course under Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure. See e.g., [#61, #62]. On February 4, 2019, the presiding judge, the Honorable Raymond P. Moore, granted Plaintiff's Motion to Amend, and denied the pending motions to dismiss and motions to strike as moot. Plaintiff's operative First Amended Class Complaint was docketed that same day. [#71].
The First Amended Class Complaint asserted claims against Experian; Trans Union; LexisNexis; American Express; Bank of America ("BOA"); J.P. Morgan Chase National Corporate Services ("Chase"); OneMain Financial Services, Inc. ("OneMain"); Paypal; Synchrony Bank ("Synchrony"); Wells Fargo; Capital One, N.A. ('Capital One"); RealPage, Inc. ("RealPage"); TD Bank; First Premier Bank ("First Premier"); and Barclays Bank ("Barclays") (collectively, "Defendants"). [#71]. In Count One brought against Experian and Trans Union, Plaintiff alleges various willful violations of the FCRA. [Id. at 8]. In Count Two, Mr. Bath alleges various violations of the FCRA against American Express, OneMain, Barclays, TD Bank, Wells Fargo, Chase, LexisNexis, Capital One, BOA, Realpage, First Premier, Synchrony, and Paypal. [Id.at 9-10]. Counts Three and Four are a state law claims for defamation brought against various Defendants. [Id. at 11-12]. Counts Five and Six assert negligence on the part of the Defendants [id. at 13-14], and Counts Seven and Eight allege invasion of privacy/false light against the Defendants. [Id. at 15-16]. Mr. Bath sought actual, statutory, and punitive damages, as well as injunctive relief. [Id. at 17]. Equifax, CitiBank N.A., and Discover Financial Services were namedin the original Complaint but were not named in the First Amended Class Complaint. Compare [#1] with [#71].
After the docketing of the First Amended Class Complaint, numerous Defendants settled with Mr. Bath and were dismissed from the action: BOA [#111, #114]; OneMain [#84, #95]; Chase [#96], Barclays [#103]; Capital One [#135, #140]; and Synchrony [#154, #156]. There is no indication on the docket that Defendants Paypal, Realpage, First Premier, or TD Bank have been served. On February 11, 2019, Experian filed an Answer to the First Amended Class Complaint. [#83]. On February 19, 2019, American Express and LexisNexis filed separate Motions to Dismiss [#88, #89], and Trans Union answered the First Amended Class Complaint. [#90]. That same day, Mr. Bath moved to strike Experian's Answer and sought summary judgment against it. [#91]. Then, on February 25, 2019, Mr. Bath filed a substantially similar Motion to Strike against Trans Union [#106], triggering Trans Union to file its Motion to Strike Summary Judgment Evidence [#136].
The court held a Status Conference on March 11, 2019, in which the Parties and the court discussed certain Defendants' position that their settlements with Mr. Bath precluded any further action against them. [#131]. During that discussion, the court noted that one of those entities, Equifax, was not a party to the action, having not appeared as a defendant in the First Amended Class Complaint. That same day, this court denied Mr. Bath's motions [#91, #106], insofar as they sought to strike Experian's and Trans Union's Answers to the First Amended Class Complaint. But to the extent that Plaintiff moved for summary judgment against Experian and Trans Union, Judge Moore permitted those to proceed. [#142].
Equifax and Wells Fargo have respectively moved to enforce settlement agreements with Mr. Bath. [#138; #145]. On March 21, 2019, Plaintiff filed an "Unopposed" Motion to Amend, seeking to docket a Second Amended Class Complaint. [#144]. But on March 21 and 25, American Express and LexisNexis advised the court through Notices that they did, in fact, oppose the Motion to Amend. [#150; #151]. American Express and LexisNexis each filed an Opposition to the Motion to Amend [#157; #158].
During a second Status Conference held on April 24, 2019, this court declined to proceed with the scheduling for the case given the procedural history and the pending motions. [#165]. During that same conference, this court encouraged the Parties to minimize their filings so that this Recommendation could issue as to pending motions so that the Parties and the court could better understand and address the contours of the case. [Id.]. This court now turns to its Recommendation.
As mentioned above, "[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall, 935 F.2d at 1110 (citation omitted). But "[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id. Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint "must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought ...." Fed. R. Civ. P. 8(a). The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that "[e]ach allegation must be simple, concise, and direct." Read together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. A decision to dismiss a complaint pursuant to Rule 8 is within the trial court's sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).
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