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Kermit Rydell v. Servco Auto Windward

November 9, 2011

KERMIT RYDELL,
PLAINTIFF,
v.
SERVCO AUTO WINDWARD, JOHN DOES 1 THROUGH 10,
DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, AND DENYING PLAINTIFF'S EMERGENCY PETITION TO DISMISS DEFENDANT'S NON-CONFORMING PLEADINGS

I. INTRODUCTION

Pro se Plaintiff Kermit Rydell ("Plaintiff" or "Rydell") alleges that Defendant Servco Auto Windward ("Defendant" or "Servco")*fn1 violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq., by obtaining a credit report from each of the three major credit reporting agencies (TransUnion, Experian, and Equifax), when he authorized Servco to obtain "a consumer credit report" -- i.e., under his theory, only one credit report. Servco moves to dismiss, arguing that the Complaint fails to state a claim upon which relief can be granted.

In response, Plaintiff filed an "Emergency Petition to Dismiss Defendant's Non-Conforming Pleadings" ("Emergency Petition"), seeking to strike certain documents filed by Servco.

Based on the following, the court GRANTS Servco's Motion to Dismiss, and DENIES Plaintiff's Emergency Petition.*fn2

II. BACKGROUND*fn3

Servco is an automobile dealership located in Kaneohe, Hawaii. Doc. No. 1, Compl. ¶ 2. On February 24, 2011, Plaintiff signed a Hawaii Credit Application form ("credit application"), in connection with a potential financing and purchase of an automobile. Id. ¶ 9 & Ex. D. In his credit application, Plaintiff authorized the following:

I authorize [Servco] and any financial institution(s) or creditor(s) with whom you share my application to obtain a consumer credit report, check my credit and employment history, and answer questions about their credit transactions or experiences with me.

Id. Ex. D.

Based on Plaintiff's credit application, Servco "pulled a full credit report from each and every one of the three major consumer credit agencies, namely TransUnion, Experian and Equifax." Id. ¶ 8. Plaintiff concedes that he authorized Servco to obtain a consumer credit report, but contends that Servco violated the FCRA, 15 U.S.C. § 1681b(a)(2), by exceeding the scope of his authorization and obtaining more than one consumer credit report. Id. ¶ 12. The Complaint alleges Plaintiff's credit rating was damaged, and seeks actual or statutory damages for the two "unauthorized" credit inquiries. Id. ¶¶ 29-30. It also seeks an order compelling Experian and Equifax to expunge those inquiries from their records. Id. at 10, ¶¶ 5-6.

III. STANDARDS OF REVIEW

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for "failure to state a claim upon which relief can be granted[.]"

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations contained in the complaint -- "is inapplicable to legal conclusions." Id. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S.at 555). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct ...


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