In Gadomski v. Equifax Information Services, Inc., 2018 WL 2096862, at *4–6 (E.D.Cal., 2018), the District Court found that no willful violation of the CRA could lie absent prior notice that the information was inaccurate or that the information came from an unreliable source.
Here, Defendant does not dispute that the information reported on Plaintiff’s credit report was inaccurate. (See ECF No. 17 at 15.) However, even taking Plaintiff’s allegations as true that her consumer report was inaccurate, Defendant “is not liable under the FCRA for reporting inaccurate information [it] obtained from [Wells Fargo, a presumptively reliable source], absent prior notice…that the information may be inaccurate.” Wright, Inc., 805 F.3d at 1241. Nowhere in Plaintiff’s complaint has Plaintiff alleged Wells Fargo is an unreliable source or that Defendant received notice that the information it obtained from Wells Fargo was inaccurate prior to issuing Plaintiff’s credit report dated November 13, 2016. (See generally ECF No. 1.) Rather, Plaintiff alleges that Defendant failed to report Plaintiff’s bankruptcy in the “Public Records” section of her credit report following its reinvestigation into her Wells Fargo account and that her “continued efforts” to correct Defendant’s erroneous and negative reporting of her debt were fruitless. (ECF No. 1 ¶¶ 141, 149.) Plaintiff then makes the conclusory allegation that “[Defendant’s] failure to correct the previously disclosed inaccuracies on Plaintiff’s credit report was intentional and in reckless disregard of its duty to refrain from reporting inaccurate information.” (ECF No. 1 ¶ 151 (emphasis added).) Plaintiff’s complaint does not describe how or when the inaccuracies were “previously disclosed,” or even what those disclosures entailed. The Court need not accept vague and conclusory statements as true. Accordingly, Plaintiff fails to adequately allege violations of § 1681e(b). Despite Plaintiff’s vague and conclusory statements (ECF No. 1 ¶¶ 149, 151) and concession that Defendant uses FCRA-compliant procedures (ECF No. 20 at 9; ECF No. 1 ¶ 125– 126), the Court finds that Plaintiff may be able to flesh out her claims for violations of § 1681e(b) with greater detail. Thus, for the reasons stated, the Court grants with leave to amend Defendant’s Motion to Dismiss Counts I and II. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (expressing that a district court should liberally grant leave to amend unless amendment would be futile).
The District Court found that the Plaintiff alleged no actual damages and that a reduced credit score was insufficient.
Defendant argues that the Court should dismiss Plaintiff’s claim for negligent violations of 15 U.S.C. § 1681i(a) because Plaintiff does not allege actual damages to support this claim.4(ECF No. 17 at 19.) Plaintiff failed to respond to this argument. (See generally ECF No. 20.) To bring a negligence claim under the FCRA, Plaintiff must plead and prove that Defendant’s alleged FCRA violation caused her to suffer actual damages. 15 U.S.C. § 1681o(a). Plaintiff alleges she “incurred monetary expenses, time, and effort in an attempt to dispute and seek correction of the inaccuracies” in Defendant’s report and she generally asserts that Defendant’s “reporting damaged [her] creditworthiness.” (ECF No. 1 ¶¶ 124, 128, 130, 152.) Many district courts have held that a plaintiff cannot recover damages for an impaired credit score alone. See, e.g., Basconcello v. Experian Info. Sols., Inc., No. 16-CV- 06307-PJH, 2017 WL1046969, at *10–11 (N.D. Cal. Mar. 20, 2017); King v. Bank of Am., N.A., No. C-12- 04168 JCS, 2012 WL 4685993, at *6 (N.D. Cal. Oct. 1, 2012). Furthermore, while the Ninth Circuit has not taken a stance on whether out-of-pocket expenses incurred in the ordinary course of disputing inaccuracies in a consumer credit report constitute actionable damage, courts in this circuit have adopted this view from the Second Circuit. The Second Circuit has held that “expenses incurred merely to notify [CRAs] of inaccurate credit information, and not to force their compliance with any specific provision of the statute, cannot be compensable as ‘actual damages’ for a violation of the FCRA.” Basconcello, 2017 WL1046969, at *11 (quoting Casella v. Equifax Credit Information Services, 56 F.3d 469, 474 (2d Cir. 1995)). The Court finds this analysis persuasive. Thus, neither of Plaintiff’s alleged damages are sufficient to show actual damages. Therefore, the Court grants with leave to amend Defendant’s Motion to Dismiss Plaintiff’s claim for a negligent violation of § 1681i(a). Lopez v. Smith, 203 F.3d 1122, 1127.
The District Court found that the FCRA does not afford a right to injunctive relief.
Defendant argues that the FCRA does not permit Plaintiff to obtain equitable relief. (ECF No. 17 at 20 (citing 15 U.S.C. §§ 1681n, 1681o) (identifying the statutory relief available)).) Plaintiff responds that “district courts have inherent power to issue equitable relief,” and “ ‘[a]bsent the clearest command to the contrary from Congress, federal courts retain their power to issue injunctions in suits over which they have jurisdiction.’ ” (ECF No. 20 at 10 (quoting Califano v. Yamaski, 442 U.S. 682, 99 S. Ct. 2545 (1979)).) Plaintiff relies on a single case to support her contention, Andrews v. TransUnion Corp., 7 F. Supp. 2d 1056, 1084 (C.D. Cal. 1998), rev’d on other grounds sub nom. However, Plaintiff does not reference the many district court cases rejecting the Court’s view in Andrews. While the Ninth Circuit has not addressed whether a private party may obtain injunctive relief under the FCRA, courts in the Ninth Circuit consistently hold that a private party may not obtain injunctive relief under the FCRA. See e.g., Howard v. Blue Ridge Bank, 371 F. Supp. 2d 1139, 1145 (N.D. Cal. 2005) (rejecting Andrews decision and concluding that “the FCRA does clearly preclude injunctive relief”); see also Peterson v. Am. Express, No. CV-14-02056-PHX-GMS, 2016 WL 1158881, at *10 (D. Ariz. Mar. 23, 2016). The Court has discretion whether to grant equitable relief, and federal courts in this district consistently deny injunctive relief under the FCRA to private parties. The Court agrees with its sister courts, and dismisses without leave to amend Plaintiff’s individual request for injunctive relief.
Finally, the District Court found that punitive damages are not available for a negligent violation of the FCRA.
Defendant argues that “statutory and punitive damages are not available for negligent violations of the FCRA.” (ECF No. 17 at 20 (citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 53 (2007); Ashby v. Farmers Ins. Co. of Or., 565 F. Supp. 2d 1188, 1204 (D. Or. 2008); 15 U.S.C. § 1681n).) Plaintiff fails to respond to this argument. (See generally ECF No. 21.) An affected consumer may not recover statutory and punitive damages for a negligent, as opposed to a willful, violation of the FCRA. Safeco, 551 U.S. at 53; 15 U.S.C. §§ 1681o(a) (listing damages for negligent violations), 1681n(a)(1)–(a)(2) (listing damages for willful violations). Thus, the Court grants without leave to amend Defendant’s Motion to Dismiss Plaintiff’s request for statutory and punitive damages for a negligent violation of § 1681i(a).