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Rizzo v. Discover Bank

United States District Court, W.D. Wisconsin

July 24, 2017

SASHA RIZZO, Plaintiff,
v.
DISCOVER BANK and KOHN LAW FIRM S.C., Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff Sasha Rizzo brings this proposed class action against defendants Discover Bank and Kohn Law Firm S.C. for violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Rizzo alleges that defendants “publicly filed highly confidential and statutorily protected consumer reports”- namely, credit scores-during state court collection actions. Dkt. 2, ¶ 2.

         Out of the gate, Kohn moved to strike certain paragraphs from Rizzo's complaint. Dkt. 6. Rizzo opposed. Then, tucked away in its reply brief, Kohn asked to stay the entire case, including forestalling on ruling on the motion to strike, pending a potential motion to compel arbitration. The court begins there.

         First, a reply brief in support of a motion to strike is not the place to make a new, completely unrelated request for a stay. Kohn should have filed a separate motion to stay if he wanted the court to consider it.

         Second, and more to the point, Kohn's request for a stay is substantively flawed. Kohn states that it believes that a certain card member agreement applies to Rizzo's claims, that the agreement has an arbitration clause, and that it may need to file a motion to compel arbitration at some point in the future (Kohn “awaits plaintiff's position on arbitration”). Dkt. 14, at 1. Then Kohn previews its arguments concerning compelled arbitration and throws in copied-and-pasted portions of its opening brief in support of its motion to strike for good measure.

         Kohn's request for a stay is denied. It is premature and unsupported. If and when Kohn moves to compel arbitration, it may renew its motion to stay. For now, the case proceeds, and the court turns to the motion to strike.

         Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike are disfavored; they delay proceedings, usually unnecessarily. See Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Generally, a party should not move “to strike extraneous matter unless its presence in the complaint is actually prejudicial.” Davis v. Ruby Foods, Inc., 269 F.3d 818, 821 (7th Cir. 2001).

         Here, Kohn's issue is that paragraphs 12-16 of the complaint plead law as opposed to facts:

12. The United States Supreme Court has held in Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 2016 WL 2842447 (May 16, 2016), that for standing purposes, concrete injuries include intangible harms.
13. The Court in Spokeo further noted that:
“Because the doctrine of standing derives from the case or controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American Courts.” And, “...that Congress may elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.”
(Emphasis Added).
14. Invasion of privacy is an example in the Restatement (Second) of Torts 652A (1977) of “harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”

15. The lead Senate sponsor, William Proxmire stated that:

The aim of the Fair Credit Reporting Act is to see that the credit reporting system serves the consumer as well as the industry. ...the consumer has a right to see that the information is kept confidential and it is used for the purposed for which it is collected; and he has the ...

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