1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 SUSAN HARROFF, Case No. 2:18-cv-02154-KJD-EJY

8 Plaintiff, ORDER

9 v.

10 EXPERIAN INFORMATION SERVICES, INC., 11

12 Defendant.

13 Presently before the Court are Defendant’s (#32) and Plaintiff’s (#35) Motions for 14 Reconsideration. Plaintiff (#34/38) and Defendant (#36/37) responded and replied. 15 I. Legal Standard 16 A motion to reconsider a final appealable order is appropriately brought under either Rule 17 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See United States v. Martin, 226

, 1048 n.8 (9th Cir. 2000). Motions for reconsideration are committed to the discretion 19 of the trial court. See School Dist. No. 1J. Multnomah Cnty. v. ACandS, Inc.,

, 1262 20 (9th Cir. 1993). 21 A Rule 59(e) motion must be filed no later than twenty-eight (28) days following entry of 22 the final judgment. See Fed. R. Civ. P. 59(e). A motion for reconsideration is treated as a Rule 23 59(e) motion if it is timely filed within the specified twenty-eight-day period. See Am. 24 Ironworkers & Erectors Inc. v. N. Am. Constr. Corp.,

, 899 (9th Cir. 2001).1 25 Otherwise, the motion is treated as a Rule 60(b) motion for relief from judgment or order. See 26 id. In this case, the Court granted in part and denied in part (#31) Defendant’s Motion for 27 28 1In 2009, Rule 59 (e) was amended to change the time for filing a Rule 59 (e) motion from ten to twenty-eight days. 1 Judgment on the Pleadings. Both parties filed motions to reconsider within the twenty-eight-day 2 period, therefore they are timely and considered Rule 59(e) motions. 3 A motion for reconsideration is an “extraordinary remedy, to be used sparingly in the 4 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of 5 Bishop,

, 890 (9th Cir. 2000). Reconsideration under Rule 59(e) is appropriate 6 where: (1) the district court is presented with newly discovered evidence or committed clear 7 error; (2) the initial decision was manifestly unjust; or (3) there is an intervening change in 8 controlling law. See School Dist. No. 1J., 5 F.3d at 1263. 9 II. Analysis 10 Neither party attempts to introduce newly discovered evidence or argue that the initial 11 order was manifestly unjust. Defendant claims the Court committed clear error by considering 12 Plaintiff’s expert statement, which was not in the pleadings. Plaintiff alleges the Court 13 committed clear error by granting Defendant’s motion and not granting her leave to amend her 14 complaint. 15 A. Defendant’s clear error claim 16 The Court granted Defendant’s motion for judgment on the pleadings for all but one of 17 Plaintiff’s claims. The surviving claim focuses on whether the appearance of multiple charge- 18 offs on Plaintiff’s consumer report could constitute inaccurate information. The claim survived 19 due to the conflict between the evidence provided by Plaintiff and the persuasive authority cited 20 by Defendant. Experian alleges that Plaintiff’s evidence should not have been considered 21 because it was not included in the pleadings. If a court considers outside evidence at the 22 dismissal stage, then it converts the motion to a motion for summary judgment. See Anderson v. 23 Angelone,

(9th Cir. 1996). The Court erred in considering this testimony. The 24 expert testimony was not part of the pleadings and should not have been considered. 25 Additionally, the Court agrees with the holding in Steinmetz, and finds that the plaintiff 26 “failed to allege how reporting charge-offs on a single tradeline in consecutive months would be 27 misleading in such a way and to such an extent that it can be expected to adversely affect credit 28 decisions.” Steinmetz v. American Honda Finance,

, at *5 (D. Nev. 2019) 1 (quoting Carvalho v. Equifax Info. Servs., LLC,

(9th Cir. 2010)). The parties 2 agree that there is only one charge-off event. The charge-off as reported is not patently 3 inaccurate or misleading. See Gorman v. Wolpoff & Abramson, LLP,

(9th 4 Cir. 2009). Plaintiff fails to show how multiple reports of the charge-off adversely affected or 5 could adversely affect her credit and amending the complaint is futile. The Court grants 6 Experian’s motion for judgment on the pleadings regarding the 1681e(b) violation claim. 7 B. Plaintiff’s clear error claims 8 Plaintiff alleges that reconsideration is warranted and that the Court failed to consider the 9 new allegations in the amended complaint before denying leave to amend. Haroff’s 1681g(a)(1) 10 amendment relies on the assertion that the reinvestigation is both a consumer disclosure and a 11 consumer report. However, this belief is at odds with the case law. Courts “expressly caution 12 against conflating these two types of documents when interpreting the FCRA.” Steinmetz, 2019

at *7 (quoting Larson v. Trans Union, LLC,

, *4 (N.D. Cal. 14 2013)). A plaintiff’s attempt to “expand the definition of consumer report runs afoul of 15 controlling precedent” and the Court will not conflate disclosures and reports.

16 Plaintiff also alleges that the Court failed to consider why her amended § 1681i claim 17 would be futile. Shaw makes it clear that any § 1681i claim requires the showing of inaccurate 18 reporting. “To sustain either a § 1681e or a § 1681i claim, a consumer must first make a prima 19 facie showing of inaccurate reporting by the CRA.” Shaw v. Experian Information Solutions, 20 Inc.,

(9th Cir. 2018) (internal quotations omitted). To demonstrate inaccurate 21 reporting, a plaintiff must show that the information was “patently inaccurate, or because it is 22 misleading in such a way and to such an extent that it can be expected to adversely affect credit 23 decisions.” Gorman,

(9th Cir. 2009) (quoting Sepulvado v. CSC Credit Servs., 24 Inc.,

, 895 (5th Cir. 1998)). Plaintiff fails to make a prima facie showing in the 25 amended complaint of inaccurate reporting, thus the amendment would be futile. 26 Plaintiff’s amended complaint alleges that during the reinvestigation Defendant relied 27 upon the information from Bank of America and did not have proper checks and balances in 28 place to discover a mistake. However, the amended complaint does not explain why Plaintiff 1 | expects this to harm her credit or how it has affected any decisions regarding her credit. Before a court analyzes the reasonableness of a CRA’s reinvestigation, a plaintiff must show that she “suffered damages as a result of the inaccurate information.” Ruffin-Thompkins v. Experian Info. Solutions, Inc.,

(7th Cir. 2005) (quoting Sarver v. Experian Info. 5 Solutions,

(7th Cir. 2004)). Plaintiff has failed to show that she suffered 6 | damages as a result of the alleged inaccurate information, therefore an analysis into Defendant’ □ 7 | reinvestigation practices is unwarranted. 8 Plaintiff fails to show clear error, newly discovered evidence, a change in the controlling 9 | law, or that the previous order was manifestly unjust. Therefore, Plaintiff does not warrant 10 | reconsideration. Conversely, Defendant has demonstrated clear error and reconsideration is 11 | granted. 12 Il. Conclusion 13 Accordingly, IT IS HEREBY ORDERED that Defendant Experian Information Solutions, Inc.’s Motion for Reconsideration (#32) is GRANTED and Defendant’s original 15 | Motion for Judgment on the Pleadings (#11) is GRANTED in full. 16 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Reconsideration (#35) is DENIED. 18 IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File Supplemental 19 | Authority (#39) is DENIED. 20 IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT against the 21) Plaintiff. 22 DATED this 2nd day of September 2020.

ay 7— 24 Kent J. Dawson 25 United States District Judge 26 27 28

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