McDonald v. Exeter Finance LLC ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert H McDonald, Jr, No. CV-22-02197-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Exeter Finance LLC, 13 Defendant. 14 15 16 This order resolves three motions: (1) Defendant’s motion to dismiss (Doc. 7), (2) 17 Plaintiff’s motion to remand (Doc. 8), and Plaintiff’s motion for leave to amend his 18 response in opposition to Defendant’s motion to dismiss (Doc. 17). 19 First, Plaintiff’s motion to remand (Doc. 8) is denied. Defendant timely removed 20 this case to federal court because Plaintiff’s complaint includes a claim under the federal 21 Fair Credit Reporting Act (“FCRA”). (Doc. 1.) The Court therefore has subject-matter 22 jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a). 23 Second, Plaintiff’s motion to amend his response in opposition to Defendant’s 24 motion to dismiss (Doc. 17) is denied. Plaintiff initially failed to respond to Defendant’s 25 motion to dismiss within the 14-day deadline, so the Court on its own granted Plaintiff an 26 additional 14 days in which to respond. (Doc. 9.) Plaintiff then filed a response (Doc. 11), 27 and Defendant filed a reply (Doc. 12). A month after Defendant filed its reply, Plaintiff 28 moved for leave to amend his response, but his proposed amendment is actually a 1 wholesale rewrite of his response. (Doc. 18-2.) This is not how civil litigation works. The 2 rules allow Plaintiff to file one response, and Defendant to file one reply. They do not allow 3 Plaintiff to rewrite his response brief once Defendant files a reply demonstrating its 4 deficiencies. 5 Lastly, Defendant’s motion to dismiss is granted. Plaintiff alleges that he refinanced 6 his car loan with The Savings Group Inc., d/b/a Autopay, but was concerned that Autopay 7 failed to properly sign the refinance contract. The contract later was assigned to Defendant, 8 who Plaintiff accuses of violating certain provisions of the Arizona Uniform Commercial 9 Code (“UCC”) and § 44-286 of Arizona’s Motor Vehicle Time Sales Disclosure Act, and 10 failing to submit accurate information to credit bureaus in violation of the FCRA. (Doc. 1- 11 3 at 5-8.) 12 Plaintiff’s claims under the UCC are dismissed because the sections at issue—§§ 13 47-2601 and 47-2612—do not apply to secured transactions, such as Plaintiff’s car loan 14 refinancing. See A.R.S. § 2102 (noting that Chapter 2 of Arizona’s UCC “does not apply 15 to any transaction . . . intended to operate only as a security transaction”). Plaintiff’s claim 16 under the Motor Vehicle Time Sales Disclosure Act fails because there is no private cause 17 of action under that provision. See Borowsky v. Brooks, No. CV 2018-015307, 2019 WL 18 13144046, at *3 (Ariz. Super. Aug. 01, 2019). Likewise, to the extent Plaintiff is attempting 19 to raise a claim under A.R.S. § 28-2051, regarding Defendant’s alleged failure to perfect 20 the lien, the claim fails because there is no private right of action under that statute. Instead, 21 a violation of § 28-2051 is a civil traffic violation enforceable by “[a] peace officer, or duly 22 authorized agent or someone paid to act on behalf of a traffic enforcement agency[.]” 23 A.R.S. § 28-1593(B); see also A.R.S. § 28-121(B) (“A violation of or failure or refusal to 24 do or perform an act or thing required by chapter . . . 7 . . . of this title is a civil traffic 25 violation . . . Civil traffic violations are subject to chapter 5, articles 3 and 4 of this title.”). 26 Finally, the Court agrees with Defendant that the complaint, as currently drafted, fails to 27 state a plausible FCRA claim because the allegations are conclusory and do not even 28 identify the particular section of the FCRA Plaintiff believes Defendant violated. See || Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (noting that, to 2|| avoid dismissal, a complaint must contain sufficient non-conclusory factual allegations to || make aclaim plausible on its face). However, this defect is potentially curable, so the Court 4|| will dismiss the FCRA claim with leave to amend. 5 IT IS ORDERED as follows: 6 1. Plaintiff's motion to remand (Doc. 8) is DENIED. 7 2. Plaintiff's motion for leave to amend his response brief (Doc. 17) is DENIED. 8 3. Defendant’s motion to dismiss (Doc. 7) is GRANTED. 9 4. Plaintiff shall have until October 20, 2023, to file an amended complaint if he 10 believes he can allege sufficient factual matter to state a plausible FCRA claim. 11 If Plaintiff does not file an amended complaint within this deadline, the Clerk 12 shall terminate this case without further order of the Court. 13 Dated this 27th day of September, 2023. 14 15 16 {Z, 18 Uatted States Dictric Judge 19 20 21 22 23 24 25 26 27 28 -3-