Novitzky v. Transunion LLC, No. 2:23-cv-04229-SPG-MAR (2024)

Case details
Full caption
Matthew R. NOVITZKY v. TRANSUNION LLC
Country
United States
Jurisdiction
Federal
Decided
2024
Disposition
Motion Granted
Majority
Sherilyn Peace Garnett (J.) (unanimous Court)
Novitzky v. Transunion LLC, Not Reported in Fed. Supp. (2024) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12024 WL 5424114Only the Westlaw citation is currently available.United States District Court, C.D. California.Matthew R. NOVITZKY, Plaintiff,v.TRANSUNION LLC; Capital OneBank, N.A.; Citibank, N.A.; WellsFargo Bank, N.A., Defendants.Case No. 2:23-cv-04229-SPG-MAR|Signed April 11, 2024Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsMatthew R. Novitzky, Tampa, FL, Pro Se.Jennifer M. Wade, Troutman Pepper Hamilton SandersLLP, Irvine, CA, Kyle E. Pietrzak, Quilling SelanderLownds Winslett and Moser P.C., Plano, TX, for DefendantTransunion LLC.Hunter R. Eley, Joel Gamino, Doll Amir and Eley LLP, LosAngeles, CA, for Defendant Capital One Bank, N.A.Dominic J. Luca, Tomio B. Narita, Womble Bond DickinsonUS LLP, San Francisco, CA, for Defendant Wells Fargo Bank,N.A.ORDER GRANTING DEFENDANT'S MOTION TODISMISS [ECF NO. 45]SHERILYN PEACE GARNETT, UNITED STATESDISTRICT JUDGE*1 Before the Court is Defendant Wells Fargo Bank,N.A.'s (“Wells Fargo”) Motion to Dismiss Second AmendedComplaint Under Rule 12(b)(6) for Failure to State a Claim.(ECF No. 45 (“Motion”)). The Court has read and consideredthe matters raised with respect to the Motion and concludedthat this matter is suitable for decision without oral argument.SeeFed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. Havingconsidered the parties' submissions, the relevant law, and therecord in this case, the Court GRANTS the Motion.I. BACKGROUNDAs this Court has previously recounted in its prior OrderGranting Defendant's Motion to Dismiss, see (ECF No. 39at 1–2), pro se Plaintiff Matthew R. Novitzky (“Plaintiff”) isa Los Angeles, California resident who disputes DefendantTransUnion LLC's (“TransUnion”) reporting of certain ofhis credit information, (ECF No. 40 (Second AmendedComplaint (“SAC”)) ¶¶ 4, 9–10). Plaintiff initiated this actionon May 24, 2023, (ECF No. 1), and filed his First AmendedComplaint on September 14, 2023, (ECF No. 9). The Courtgranted Wells Fargo's first motion to dismiss on February5, 2024, (ECF No. 39). Plaintiff filed his SAC on February8, 2024. (SAC). Wells Fargo filed the instant Motion onMarch 6, 2024. (Mot.). Plaintiff timely opposed, (ECF No.49 (“Opp.”)), and Wells Fargo timely replied, (ECF No. 51(“Reply”)).As relevant to this Motion, Plaintiff's SAC contains severalnew factual allegations concerning information apparentlyfurnished by Wells Fargo to TransUnion about one ofPlaintiff's accounts. Plaintiff now alleges that Wells Fargofailed to report past due accounts and payment dates. (Id. 12). Plaintiff also incorporates into his SAC two letters hesent to TransUnion disputing its credit report (among otherdocuments not germane to the instant Motion). (Id.). Thefirst letter, dated November 16, 2022, contends the “PastDue amount is blank” and “Date of Last Payment is notreported” for Plaintiff's Wells Fargo account. (Id. at 6). Thesecond letter, dated December 19, 2022, does not identifyany purported deficiencies regarding Plaintiff's Wells Fargoaccount or otherwise mention the Wells Fargo account. (Id. at7). As in his earlier Complaints, Plaintiff's SAC alleges thatWells Fargo “failed to conduct [a] reasonable investigation[ ]”after receiving notice of his dispute. (Id. 14).II. LEGAL STANDARDUnder Rule 8(a)(2) of the Federal Rules of Civil Procedure,a complaint must include “a short and plain statement of theclaim showing that the pleader is entitled to relief.” Fed. R.Civ. P. 8(a)(2). A complaint that fails to meet this standardmay be dismissed pursuant to Federal Rule of Civil Procedure12(b)(6). “Dismissal under Rule 12(b)(6) is proper when the
Novitzky v. Transunion LLC, Not Reported in Fed. Supp. (2024) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2complaint either (1) lacks a cognizable legal theory or (2) failsto allege sufficient facts to support a cognizable legal theory.”Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). Tosurvive a 12(b)(6) motion, the plaintiff must allege “enoughfacts to state a claim to relief that is plausible on its face.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claimhas facial plausibility when the plaintiff pleads factual contentthat allows the court to draw the reasonable inference that thedefendant is liable for the misconduct alleged.” Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard isnot akin to a probability requirement, but it asks for more thana sheer possibility that a defendant has acted unlawfully.” Id.(internal quotation marks and citation omitted).*2 When ruling on a Rule 12(b)(6) motion, the court“accept[s] factual allegations in the complaint as true andconstrue[s] the pleadings in the light most favorable to thenonmoving party.” Manzarek v. St. Paul Fire & Marine Ins.Co., 519 F.3d 1025, 1031 (9th Cir. 2008). “A documentfiled pro se is to be liberally construed, and a pro secomplaint, however inartfully pleaded, must be held toless stringent standards than formal pleadings drafted bylawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)(internal quotation marks and citations omitted). “[T]heliberal pleading standard,” however, “applies only to aplaintiff's factual allegations.” Neitzke v. Williams, 490 U.S.319, 330 n.9 (1989). The Court is “not required to acceptas true allegations that contradict exhibits attached to theComplaint or matters properly subject to judicial notice,”nor must it accept “allegations that are merely conclusory,unwarranted deductions of fact, or unreasonable inferences.”Seven Arts Filmed Ent., Ltd. v. Content Media Corp. PLC,733 F.3d 1251, 1254 (9th Cir. 2013) (internal quotation marksand citation omitted). Furthermore, the Court may not, underthe guise of liberally reading a pro se submission, “supplyessential elements of the claim that were not initially pled.”Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266,268 (9th Cir. 1982). Finally, where dismissal is appropriate,a court should grant leave to amend unless the plaintiff couldnot possibly cure the defects of the pleading. Knappenbergerv. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).III. DISCUSSIONAs in his prior Complaints, Plaintiff's SAC seeks reliefunder the Fair Credit Reporting Act, 15 U.S.C. § 1681 etseq. (“FCRA”). “Congress enacted FCRA to ensure accuratereporting about the ‘credit worthiness, credit standing, creditcapacity, character, and general reputation of consumers.’ ”Gross v. CitiMortgage, Inc., 33 F.4th 1246, 1250 (9th Cir.2022) (quoting 15 U.S.C. § 1681(a)(2)). Under the FCRA,consumers have a right to request a copy of their creditreport from credit reporting agencies. Id. at 1251; 15 U.S.C. §1681g(a). In the event the consumer believes the credit reportcontains inaccurate information, they may “file a disputewith the credit reporting agency, which in turn notifies theentities that ‘furnished’ information about the consumer'sdebt.”Gross, 33 F.4th at 1251 (citing 15 U.S.C. § 1681i(a)).After receiving a notice of a dispute from a credit reportingagency, furnishers “must ... conduct[ ] an ‘investigation withrespect to the disputed information’ ” and “correct or deleteinaccurate information,” if any. Id. (quoting 15 U.S.C. §1681s-2(b)). Furnishers' investigations must, at minimum,be “reasonable” and “non-cursory.” Gorman v. Wolpoff &Abramson, LLP, 584 F.3d 1147, 1157 (9th Cir. 2009). Afurnisher that willfully or negligently violates its obligationsunder FCRA Section 1681s-2(b) is subject to civil liability.15 U.S.C. §§ 1681n, 1681o. See alsoGross, 33 F.4th at 1251.Here, Wells Fargo apparently supplied TransUnion withinformation about Plaintiff's Wells Fargo account, making ita furnisher within the meaning of the FCRA. (SAC ¶¶ 9,12). In its Motion, Wells Fargo argues that the SAC shouldbe dismissed as to Wells Fargo due to Plaintiff's failureto adequately allege that Wells Fargo furnished inaccurateinformation or that Wells Fargo's investigation of Plaintiff'sdispute was unreasonable. (Mot. at 3–4). The Court agreesthat Plaintiff's SAC fails to state a claim against Wells Fargo.In light of Plaintiff's pro se status and the fact that it is notyet clear that amendment would be futile, the Court willallow Plaintiff one last chance to cure these deficiencies.Accordingly, the Court addresses both of Wells Fargo'sarguments.A. Prima Facie Showing of InaccuracyConsumers bringing claims against furnishers under Section1681s-2(b) must make a prima facie showing of inaccuratereporting. Gross, 33 F.4th at 1251. Information may be “‘inaccurate’ within the meaning of the FCRA because it ispatently incorrect, or because it is misleading in such a wayand to such an extent that it can be expected to adverselyaffect credit decisions.” Gorman, 584 F.3d at 1163 (internalquotation marks and citation omitted).*3 Plaintiff now alleges that Wells Fargo left past dueamounts blank and omitted payment dates. (SAC 12). AsWells Fargo notes in its Motion, Plaintiff fails to explain whyit is inaccurate for the past due amount to be blank, a showingthat is required because the absence of past due information
Novitzky v. Transunion LLC, Not Reported in Fed. Supp. (2024) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3is not necessarily inaccurate—for example, Plaintiff mightnot owe a balance on this account. See (Mot. at 7). Thesignificance of the omitted payment dates is also unclear;Plaintiff does not identify what dates should have beenincluded or explain why the alleged omission of those dateswas either incorrect or misleading. See (id. at 7–8). As before,Plaintiff must provide the Court additional information tomake the prima facie showing of inaccuracy required to statea claim under Section 1681s-2(b).In opposition, Plaintiff includes three citations in supportof his argument that he has met his burden to establish aninaccuracy under the FCRA. (Opp. at 2). Two of Plaintiff'scited cases do not exist, (ECF No. 51-1 (Declaration ofDominic J. Luca) ¶¶ 3–7), and the third, though a realcase, does not contain the language quoted in Plaintiff'sOpposition, compare (Opp. at 2) withToliver v. Experian Info.Sols., Inc., 973 F. Supp. 2d 707, 715 (S.D. Tex. 2013). Rule11 of the Federal Rules of Civil Procedure provides that,“[b]y presenting to the court a pleading, written motion, orother paper—whether by signing, filing, submitting, or lateradvocating it—an attorney or unrepresented party certifiesthat to the best of the person's knowledge, information,and belief, formed after an inquiry reasonable under thecircumstances ... the claims, defenses, and other legalcontentions are warranted by existing law.” Fed. R. Civ. P.11(b) (emphasis added). See alsoWarren v. Guelker, 29 F.3d1386, 1390 (9th Cir. 1994) (holding that Rule 11 “explicitlyapplies to parties not represented by attorneys”).Although the source of Plaintiff's fabricated caselaw isunclear, his filing is reminiscent of that at issue in Matav. Avianca, Inc., where the district court imposed monetarysanctions upon lawyers who had submitted a filing containing“non-existent judicial opinions with fake quotes and citationscreated by the artificial intelligence tool ChatGPT.” ––– F.Supp. 3d ––––, No. 22-cv-1461 (PKC), 2023 WL 4114965,at *1 (S.D.N.Y. June 22, 2023). It appears that Plaintiff hasengaged in the same sort of conduct here. The Court thereforecautions Plaintiff to ensure that his filings comport with Rule11. Given the challenge of meeting Rule 11's “minimal candorrequirements ... when submitting pleadings the litigant doesnot fully understand,” the Court advises Plaintiff to state hisarguments “in simple and straightforward terms ..., withoutattempting to sound ‘legalistic.’ ” Astronomo v. Fed. HomeLoan Mortg. Corp., No. EDCV 15-00266-JGB-KKX, 2015WL 12746708, at *3 (C.D. Cal. Apr. 28, 2015).1B. Reasonableness of Wells Fargo's InvestigationTo prevail on a Section 1681s-2 action, Plaintiff must alsoshow that any inaccurate information resulted from WellsFargo's unreasonable investigation. Gross, 33 F.4th at 1252.Wells Fargo contends that Plaintiff's SAC merely states ina conclusory fashion that Wells Fargo's investigation wasunreasonable and that the letters attached to his SAC in factsupport an inference that Wells Fargo corrected any allegedinaccuracies upon receiving notice from TransUnion. (Mot.at 8–9). The Court agrees that the SAC's assertion that WellsFargo “failed to conduct reasonable investigations,” (SAC 14), lacks supporting factual allegations and need notbe credited by the Court. SeeSeven Arts Filmed Ent., 733F.3d at 1254. Although Plaintiff in Opposition contendsthat “[c]ourts have consistently found similar allegationssufficient,” (Opp. at 3), he misconstrues the caselaw herelies upon—none of which arose in the motion to dismisscontext—and, in any event, Plaintiff fails to overcome thefact that the SAC does not contain any factual allegationsthat could support his legal conclusion that Wells Fargo'sinvestigation was inadequate. Finally, as for Wells Fargo'scontention that the correspondence appended to the SACsuggests “that an investigation was conducted, and that anyallegedly inaccurate reporting was corrected,” (Mot. at 9), theCourt concludes that such a determination would be improperbased on the evidence currently before it. Although WellsFargo's interpretation of this correspondence is plausible, itis also possible that Plaintiff omitted Wells Fargo from hissecond letter for other reasons. Here, Plaintiff is correct thatany factual determination would be premature. (Opp. at 3).IV. CONCLUSION*4 For the foregoing reasons, the Court GRANTS WellsFargo's motion to dismiss, with leave to amend.2 Plaintiffmay, within twenty-one (21) days, file a Third AmendedComplaint that corrects the deficiencies identified in thisorder with respect to Wells Fargo only; this order does notpermit Plaintiff to amend his allegations as to any other nameddefendant. If Plaintiff fails to file a Third Amended Complaintwithin twenty-one days or notifies the Court of his intentionnot to do so, his claims against Wells Fargo will be dismissedwith prejudice.IT IS SO ORDERED.
Novitzky v. Transunion LLC, Not Reported in Fed. Supp. (2024) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4All CitationsNot Reported in Fed. Supp., 2024 WL 5424114Footnotes1This admonition also takes into account the erroneous citations contained in Section II of Plaintiff's Opposition. See (Opp.at 3; Luca Decl. 8; Reply at 6–7).2The Court also advises Wells Fargo that, under the Local Rules, pro se litigants are exempt from the requirement to meetand confer prior to the filing of motions. SeeC.D. Cal. L.R. 7-3, 16-12.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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