Mayo v. Experian Info. Sols.

1

HOWARD MAYO, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, Defendant.

No. 3:22-cv-05164-DGE

United States District Court, W.D. Washington, Tacoma

January 20, 2023

ORDER GRANTING DEFENDANT'S MOTION FORJUDGMENT ON THE PLEADINGS

DAVID G. ESTUDILLO, DISTRICT JUDGE

I INTRODUCTION

This matter comes before the Court on Defendant Experian Information Solutions, Inc.'s Motion for Judgment on the Pleadings. (Dkt. No. 24.) Plaintiff Howard Mayo opposed Defendant's motion^[1]and Defendant replied.^[2](Dkt. Nos. 28 36.) For the reasons stated herein, the Court GRANTS judgment on the pleadings in favor of Defendant.

II BACKGROUND

Plaintiff sues under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. (Dkt. No. 1-4 at 10.) Beginning November 5, 2019, Plaintiff alleges Defendant inaccurately reported his Bank of Missouri Visa credit card as a closed account. (Id.) Plaintiff alleges Defendant listed inaccurate information on 40 credit reports all of which were dated between November 5 2019 and October 26, 2020.^[3](Id.) Defendant corrected Plaintiff's Bank of Missouri account on November 20 2020. (Id. at 57.)

During this period, Plaintiff disputed the status of his account nine times on November 5, 2019, November 22, 2019, December 11, 2019, February 27, 2020, March 12, 2020, March 19, 2020 April 14, 2020, July 12, 2020, and August 20, 2020.^[4] (Id. at 59.) Plaintiff alleges Experian forwarded Automated Dispute Verification Code (ADVC) forms to the Bank of Missouri for each of Plaintiff's disputes. (Id. at 32.) In response, the Bank allegedly “report[ed] Plaintiff's credit card account open and reported the status of the account ‘current.'” (Id. at 18.) Plaintiff further alleges Experian should have known the account was open because Experian's “credit reports indicate[d] credit card usage on a reported[ly] ‘closed' account” with various percentages used, fluctuating balances, and a credit limit increase. (Id. at 17.)

Defendant's inaccurate reporting allegedly caused Plaintiff to lose over three years^[5]of on-time credit card payment history on an open account (id. at 41) and an artificially lowered credit score of 610 (id. at 50). As a result, Plaintiff, a Vietnam veteran, was denied the opportunity to apply for a Veteran's Home Mortgage Loan, because the application requires a minimum credit score of 620. (Id. at 50, 62.) Plaintiff also alleges he suffered because the inaccurate report decreased the average age of all of Plaintiff's credit accounts, worsened his credit utilization ratio, and caused a loss of credit expectancy, worthiness, opportunity, reputation, and capacity. (Id. at 37, 39-42.) Defendant disseminated inaccurate credit reports to third parties, allegedly causing Plaintiff to be denied a Capital One Inc. Mastercard credit card on February 1, 2020 and requiring him to bear a higher interest rate on his Fortiva Mastercard on June 4, 2020. (Id. at 51.) Plaintiff suffered emotional distress and mental anguish as he repeatedly tried to correct Defendant's error. (Id. at 47.)

On August 4, 2020, Plaintiff sued Defendant in the Small Claims Department of the District Court for Grays Harbor County.^[6] (Dkt. No. 24-1 at 2.) Plaintiff alleged Defendant willfully failed to conduct reasonable reinvestigations of his disputes and to follow reasonable procedures to assure maximum possible accuracy of reports in violation of FCRA 15 U.S.C. § 1681(a)(1)(A) and 15 U.S.C. § 1681(e)(b). (Id. at 3.)

Plaintiff presented evidence related to four of his disputes. (Id.) Plaintiff also claimed Defendant disseminated his credit report which caused Capital One Mastercard to deny him a credit card on February 1, 2020 and Credit One Mastercard to deny increasing his credit limit on April 24, 2020.^[7] (Id.)

On December 29, 2020, the Small Claims Court issued a “Decision on Small Claims” in Defendant's favor, holding “[i]t appears to the Court that the actions of Bank of Missouri were at fault for a wrong listing of the [inaccurate] status of the plaintiff at their Institution[.]” (Id. at 6.) On February 16, 2022, Plaintiff brought this action in the Superior Court of Washington for Grays Harbor County. (Dkt. No. 1-1 at 2.) On March 17, 2022, Defendant removed Plaintiff's Amended Complaint (Dkt. No. 1-4 at 1-62) to this Court. (See Dkt. No. 1.) Plaintiff seeks a total of $343,000 in damages. (Dkt. No. 1-4 at 6.)

III DISCUSSION

A. Legal Standard for Judgment on the Pleadings

“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Analysis under Federal Rule of Civil Procedure 12(c), like analysis under Federal Rule of Civil Procedure 12(b), requires “a court [to] determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (quoting Brooks v. Dunlop Mfg. Inc., No. C 10-04341 CRB, 2011 WL 6140912, at *3 (N.D. Cal. Dec. 9, 2011)) (internal quotation marks omitted).

Generally, courts must convert a motion for judgment on the pleadings to a motion for summary judgment when it relies on extrinsic matters outside the pleadings. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). That said, courts may consider matters subject to judicial notice under Federal Rule of Evidence 201 without converting the motion to a summary judgment. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (taking judicial notice of matters of public record outside the pleadings when analyzing a motion to dismiss); see also Wild Fish Conservancy v. United States Env't Prot. Agency, 331 F.Supp.3d 1210, 1217 (W.D. Wash. 2018) (“[On motions under Federal Rules of Civil Procedure 12(b) and 12(c),] a court may consider documents outside the pleadings that are matters of public record based on sources whose accuracy cannot reasonably be questioned”) (internal quotations omitted). Matters of public record that may be judicially noticed include pleadings, orders, and other papers filed with the court or records of administrative bodies. See Del Puerto Water Dist. v. U.S. Bureau of Reclamation, 271 F.Supp.2d 1224, 1233 (C.D. Cal. 2003).

Accordingly, this Court grants Defendant's request and takes judicial notice of the Small Claims Complaint and Judgment in Howard Mayo v. Experian Info. Solutions, Inc., Case No. C-13582 (Grays Harbor Small Claims Dep't., Aug. 4, 2020) (Dkt. No. 24-1 at 2-3, 5-7).

B. Res Judicata

Defendant raises the affirmative defense of res judicata, also known as claim preclusion. When the prior judgment was issued by a state court, the federal court must apply the claim preclusion rules of the state that rendered the underlying judgment. See Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007).

In Washington, “[r]es judicata-or claim preclusion-applies where a final judgment previously entered and a present action are so similar that the current claim should have been litigated in the former action.” Storti v. Univ. of Washington, 330 P.3d 159, 165 (Wash. 2014). “‘The doctrine of res judicata rests upon the ground that a matter which has been litigated, or on which there has been an opportunity to litigate, in a former action in a court of competent jurisdiction, should not be permitted to be litigated again.'” Marino Prop. Co. v. Port Comm'rs of Port of Seattle, 644 P.2d 1181, 1184-85 (Wash. 1982) (quoting Walsh v. Wolff, 201 P.2d 215 (Wash. 1949)). A final judgment on the merits will have preclusive effect if there is identity between “subject matter, cause of action, persons and parties, and the quality of the persons for or against whom the claim is made.” Matter of Recall of Fortney, 503 P.3d 556, 566 (Wash. 2022) (internal quotations omitted); see also Zweber v. State Farm Mut. Auto. Ins. Co., 39 F.Supp.3d 1161, 1166 (W.D. Wash. 2014) (citations omitted).

On the first factor, identity of subject matter, Washington courts “look to legal and factual similarities.” Matter of Recall of Fortney, 503 P.3d at 566. This inquiry usually overlaps with the second factor-the issue of whether the cause of action or claims are also the same. 14A Douglas J. Ende, WASHINGTON PRACTICE, CIVIL PROCEDURE § 35:25 (3d ed. 2021). Although there is no precise, mechanical test to determine whether the causes of action are the same, Washington courts consider:

[W]hether the rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

Zweber v. State Farm Mut. Auto. Ins. Co., 39 F.Supp.3d 1161, 1168 (W.D. Wash. 2014); see also Rains v. State, 674 P.2d 165, 168 (Wash. 1982). These “Rains considerations” are analytical tools, but not all four must be present to bar the claim. Ensley v. Pitcher, 222 P.3d 99, 105 (Wash.Ct.App. 2009).

Regarding identity of claims, preclusion applies to what was actually litigated but also “to what might, or should have been litigated . . . if all part of the same claim or cause of action.” Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 WASH L. REV. 805, 814 (1985). “A litigant cannot justify successive actions by changing [their] theory of recovery[.]” Kathleen M. McGinnis, Revisiting Claim and Issue Preclusion in Washington, 90 WASH. L....