Andrew S. Kindle v. Bank of America

Case 2:21-cv-06251-ODW-AS Document 17 Filed 03/23/22 Page 1 of 4 Page ID #:53 1 O [7] United States District Court [8] 9 Central District of California [10] 11 ANDREW S. KINDLE, Case № 2:21-cv-06251-ODW (ASx) 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS AND STRIKE [10] AND 14 BANK OF AMERICA, DENYING AS MOOT PLAINTIFF’S MOTION TO STRIKE [13] 15 Defendant. [16] 17 I. INTRODUCTION 18 Defendant Bank of America (“BOA”) moves to dismiss Plaintiff Andrew S. 19 Kindle’s Complaint, or, alternatively, to strike Kindle’s claim for injunctive relief. (See 20 generally Mot. Dismiss & Strike (“Mot.” or “Motion”), ECF No. 10.) As discussed 21 below, the Court GRANTS BOA’s Motion.1 22 II. BACKGROUND 23 On August 3, 2021, Kindle brought this action against BOA, alleging violations 24 of Section 615 of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681m(f). 25 (Compl. 3, 4.) Kindle alleges that he banked with BOA since 2009, and that on 26 March 12, 2019, he was the victim of “fraud facilitated by the negligent practices of [27] 28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Case 2:21-cv-06251-ODW-AS Document 17 Filed 03/23/22 Page 2 of 4 Page ID #:54 1 Bank of America.” (Id. at 4.) Specifically, “an unknown perpetrator of fraud was able 2 to successfully request and receive an unauthorized card linked to Mr. Andrew Kindle’s 3 [BOA] account” and on March 12, 2019, “began to defraud Mr. Kindle by bypassing 4 [BOA’s] low tech security checks and depositing a check in the amount of $1,453.42.” 5 (Id.) On March 20, 2019, the unknown defrauder deposited additional fraudulent 6 checks in the amounts of $9,960, $4,054, $1,724.43, and $956. (Id.) The next day, 7 Kindle reported the fraud to BOA. (Id.) Kindle alleges these transactions resulted in 8 “the loss of homeloans, personal loans and all funds denied as a result of not being able 9 to bank with a major institution.” (Id. at 6.) In addition to monetary damages, Kindle 10 seeks a Court order requiring BOA to “remove any and all negative information 11 reported to other lenders, banks, financial institutions, loan officers etc.” (Id.) 12 BOA now moves to dismiss Kindle’s Complaint, based on his failure to state a 13 claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Mot 3.) Alternatively, 14 BOA moves to strike from the Complaint Kindle’s request for injunctive relief, 15 asserting that no such relief is available to private plaintiffs under the FCRA. (Id. at 7– 16 8.) The Motion is fully briefed. (Pl.’s Req. Move Forward MADR & Strike Mot. 17 (“Opp’n”)2, ECF No. 13; Def.’s Reply, ECF No. 15.) The Court finds that Kindle fails 18 to state a claim under the FCRA and accordingly GRANTS BOA’s Motion to Dismiss. 19 III. LEGAL STANDARD 20 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 21 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 22 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 23 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 24 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. Jones, [25] 26 2 On the date the Opposition to BOA’s Motion was due, Kindle filed a document styled as a request to “move forward” with alternative dispute resolution and strike BOA’s Motion to Dismiss. 27 (See Opp’n.) The document contains substantive legal rebuttals to BOA’s Motion, and the Court therefore interprets this document to be Kindle’s Opposition to BOA’s Motion. To the extent Kindle’s 28 Opposition constitutes a Motion to Strike of its own, the Motion is wholly without merit and is therefore DENIED. [2] Case 2:21-cv-06251-ODW-AS Document 17 Filed 03/23/22 Page 3 of 4 Page ID #:55 [1] 319 F.3d 483 , 494 (9th Cir. 2003). The factual “allegations must be enough to raise a 2 right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 3 555 (2007). That is, the complaint must “contain sufficient factual matter, accepted as 4 true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009) (internal quotation marks omitted). Where a district court grants a 6 motion to dismiss, it should generally provide leave to amend unless it is clear the 7 complaint could not be saved by any amendment. See Fed. R. Civ. P. 15(a); Manzarek 8 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 9 IV. DISCUSSION 10 Kindle alleges that BOA violated the FRCA pursuant to 15 U.S.C. § 1681m, but 11 he fails to state a claim because no private right of action is available under that statute. 12 “Congress enacted the FCRA in 1970 in response to concerns about corporations’ 13 increasingly sophisticated use of consumers’ personal information in making credit and 14 other decisions.” Syed v. M-I, LLC, 853 F.3d 492, 496 (9th Cir. 2017) (citing Fair Credit 15 Reporting Act of 1970, 84 Stat. 1114 , 1128). Accordingly, Congress mandated 16 reasonable procedures in procuring and using a consumer report or “any information by 17 a consumer reporting agency bearing on a consumer’s credit worthiness.” Id. (quoting 18 15 U.S.C. § 1681a(d)). Kindle brings this action pursuant to § 1681m(f) of the FRCA, 19 which generally prohibits the sale, transfer for consideration, or placing for collection 20 of any debt that has resulted from identity theft. 15 U.S.C. § 1681m(f). 21 However, in 2003, “Congress amended the FCRA by adding 15 U.S.C. 22 § 1681m(h)(8), which eliminated private enforcement of § 1681m.” Marchioli v. Pre23 employ.com, Inc., No. CV 17-1566 JGB (DTBx), 2017 WL 8186761 , at *14 (C.D. Cal. 24 June 30, 2017). Accordingly, violations of § 1681m “shall be enforced exclusively . . . 25 by the Federal agencies and officials identified in this section.” Putkowski v. Irwin 26 Home Equity Corp., 423 F. Supp. 2d 1053, 1061 (N.D. Cal. 2006) (quoting 15 U.S.C. 27 § 1681m(h)(8)); see White v. E-Loan, Inc., 409 F. Supp. 2d 1183, 1187 (N.D. Cal. 2006) 28 (holding that “the language of the statute is clear” in eliminating private enforcement of [3] Cate 2:21-cv-06251-ODW-AS Document17 Filed 03/23/22 Page 4of4 Page ID #:56 1 || the rights created by § 1681m). Accordingly, “[w]ithout a private right of action to 2|| enforce user requirements under Section 1681m, this claim necessarily fails.” 3 | Marchioli, 2017 WL 8186761 , at *14. The Court therefore GRANTS BOA’s Motion 4 || to Dismiss Kindle’s Complaint with leave to amend the identified deficiency. BOA 5 || moved in the alternative to strike Kindle’s request for injunctive relief, (Mot. 7-8), 6 || which the Court need not and does not address as Kindle’s Complaint is now dismissed. 7 Vv. CONCLUSION 8 The Court GRANTS BOA’s Motion to Dismiss, (ECF No. 10), and DENIES 9 | AS MOOT Kindle’s Motion to Strike, (ECF No. 13). The Court DISMISSES Kindle’s 10 | Complaint with leave to amend to correct the identified deficiencies. If Kindle chooses 11 || to file an Amended Complaint, he must file it within twenty-one (21) days of the date 12 | of this Order, in which case BOA shall answer or otherwise respond no later than 13 | fourteen (14) days from the date the Amended Complaint is filed. 14 Moreover, the Court acknowledges that Kindle appears in this action pro se. The 15 | Court advises that the Federal Pro Se Clinic offers free information and guidance to 16 | individuals who are representing themselves in federal civil actions. The Los Angeles 17 || Clinic operates by appointment only, which may be made by calling (213) 385-2977, 18 || ext. 270 or at the following website: http://prose.cacd.uscourts.gov/los-angeles. Clinic 19 || staff can efficiently respond to many questions with a telephonic appointment or 20 | through an email request. In-person appointments may be available at the Roybal 21 || Federal Building and Courthouse, 255 East Temple Street, Suite 170, Los Angeles, 22 | California 90012. The Court encourages Kindle to visit the Clinic or otherwise consult 23 || with an attorney prior to submitting any additional filings. IT IS SO ORDERED. 26 March 23, 2022 Ng. 7 Ye tite 28 OTIS D. HT, UNITED STATES DISTRICT JUDGE