Barrett v. Equifax Information Services, Llc et al

MOTION to dismiss case Defendant Equifax Information Services LLC's Motion to Dismiss Plaintiff's Petition

W.D. Mo.March 20, 2017

052338/563207-57831468.1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI DEAN BARRETT, ) ) Plaintiff, ) ) vs. ) Case No.: 4:17-cv-00180-GAF ) EQUIFAX INFORMATION SERVICES LLC, ) et al., ) ) Defendants. ) DEFENDANT EQUIFAX INFORMATION SERVICES LLC’S MOTION TO DISMISS PLAINTIFF’S PETITION COMES NOW, Defendant Equifax Information Services LLC (“Equifax”), by and through counsel, and files this Motion to Dismiss Plaintiff’s Petition pursuant to Federal Rules of Civil Procedure 12(b)(6), showing the Court as follows: I. FACTUAL BACKGROUND 1 AND ALLEGATIONS On or about February 8, 2017, Plaintiff Dean Barrett (“Plaintiff”) filed a Petition in the Associate Circuit Court of Jackson County, Missouri, alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §1681 et seq., against Equifax, Trans Union LLC (“Trans Union”), and Experian Information Solutions, Inc. (“Experian”). On March 13, 2017, Defendants removed this action to this Court. Plaintiff claims Defendants are reporting accounts as due and owing on Plaintiff’s “credit report,” that the reporting was “false,” and that “[t]he accounts were included in a bankruptcy” filed by Plaintiff in the Western District of Missouri and discharged on May 26, 2015. See Petition, ¶¶ 11-14. Plaintiff asserts that “Defendats have no reasonable means of monitoring or 1 The recitation of facts is taken from Plaintiff’s Petition. Equifax does not concede Plaintiff’s allegations are accurate, but assumes th ir ruth solely for purposes of this Motion. Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 1 of 8 2 052338/563207-57831468.1 updating accounts once they are discharged in bankruptcy,” and that the “credit reports still show the discharged accounts as owing and able to be enforced and collected.” See Petition, ¶¶ 15-16. Plaintiff further alleges that his “creditors and potential creditors have accessed [his] reports while the misreporting was on the credit report and were misinformed by Defendants that Plaintiff had a judgment,” and that “Defendants have been reporting and reinserting derogatory and inaccurate statements and information relating to Plaintiff and Plaintiff’s credit history to third parties.” Id. at ¶¶ 17-18. Plaintiff asserts that Defendants, including Equifax, are liable to him for “willfully and negligently failing to comply with the requirements imposed on consumer reporting agencies (“CRAs”)…pursuant to 15 U.S.C. § 1681e(b) in assuring reasonable procedures to assure maximum possible accuracy to prevent such reporting of inaccurate information in Plaintiff’s reports.” Id. at ¶ 26. Equifax moves this Court to dismiss Plaintiff’s Petition because Plaintiff fails to allege facts sufficient to support a claim for relief. Instead, Plaintiff makes generalized and conclusory allegations that are insufficient to notify Equifax s to the basis of the claims asserted against it. II. APPLICABLE LEGAL STANDARD The Federal Rules of Civil Procedure require that a complaint “give the defendant fair notice of what the ...claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations omitted). In Twombly, the United States Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a). 550 U.S. at 555. Thus, although a plaintiff’s complaint generally need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), to withstand a Rule 12(b)(6) 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, 556 U.S. 662, 663 (2009) (quoting Twombly, 550 U.S. at 570). A “plausible claim for relief” is Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 2 of 8 3 052338/563207-57831468.1 one where the claimant pleads “factual content thatallows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (emphasis added.) Such a claim “asks for more than a sheer possibility that a defendant has acted unlawfully,” and requires more than the assertion of facts “that are ‘merely consistent with’ a defendant’s liability.” Id. (quoting Twombly, 550 U.S. at 557). Although detailed factual allegations are not required, “a plaintiff’s obligation to provide the grounds of her entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted). Plaintiff must provide “more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Iqbal, 556 U.S. at 678. A court should therefore identify and reject legal conclusions unsupported by factual allegations because they “are not entitled to the assumption of truth.” Id. at 679. Mere conclusory allegations, absent supporting factual averments, are not sufficient to state a claim upon which relief can be granted. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); see also E.F.W. v. St. Stephen’s Indian High School, 264 F.3d 1397, 1306 (10th Cir. 2001) (dismissing action while holding the court need not accept conclusory allegations as true). “The plaintiff must make at least minimal factual allegations, either direct or inferential, as to every material element of the claim.” Canfield v. Overhead Door Co. Tulsa, 2006 WL 850951 at *1 (N.D. Okla. March 31, 2006) (citing Gooley v. Mobile Oil Co., 851 F.2d 513, 515 (1st Cir. 1988)). The issue is “not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Swierkiewiez v. Sorema N.A., 534 U.S. 506, 511 (2002) (internal quotation omitted). Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 3 of 8 4 052338/563207-57831468.1 III. ARGUMENT AND AUTHORITIES A. Plaintiff’s Petition Fails to State Facts Sufficient to Support a Claim for Relief. Plaintiff claims Equifax violated § 1681e(b) by “failing to comply with the requirements imposed on [CRAs]…in assuring reasonable procedures to a sure maximum possible accuracy to prevent such reporting of inaccurate information in Plaintiff’s reports.” See Petition, ¶ 26. To prevail on this claim, Plaintiff must allege and prove: (1) inaccurate information was included on his consumer report; (2) the inaccuracy was due to Defendant’s failure to follow reasonable procedures to assure maximum possible accuracy; (3) he suffered an injury; and (4) the injury was caused by the inclusion of the inaccurate information. Heupel v. Trans Union, LLC, 193 F. Supp. 2d 1234, 1239 (N.D. Ala. 2002); see also Cassara v. DAC Servs., Inc., 276 F.3d 1210, 1217 (10th Cir. 2002). While Plaintiff attempts to assert claims for violation of Section 1681e(b) of the FCRA, he fails to provide allegations sufficient to identify each of the material elements of his claim; rather, he simply makes non-specific factu l assertions and then regurgitates the statutory language, without more. Equifax cannot frame a responsive pleading without making assumptions about Plaintiff’s allegations. As a Defendant, Equifax is expected to respond to the pleadings in short and plain terms, asserting defenses and admitting or denying the averments upon which the adverse party relies. Fed. R. Civ. P. 8(b). As it stands, however, the Petition does not provide allegations sufficiently definite to determine what specific acts or omissions Plaintiff alleges violated the FCRA; this hinders Equifax’s ability to properly state its defenses and comply with its obligations under Rule 8(b). Further, Plaintiff’s Petition is rife with conclusory allegations with no supporting factual averments, and those should be disregarded altogether. As such, Equifax’s Motion to Dismiss should be granted due to Plaintiff’s failure to plead any factual Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 4 of 8 5 052338/563207-57831468.1 content, let alone factual content sufficient to all w the Court to draw the reasonable inference that Equifax is liable for the misconduct he attempts to allege. B. Plaintiff Fails to Identify to What Third Party Equ ifax Reported the Allegedly Inaccurate Information. To prevail on his claim under § 1681e(b), Plaintiff must plead and prove, inter alia, that his Equifax consumer report was issued to a third party and that his alleged damages flow from such issuance. Wantz v. Experian Info. Solutions, 386 F.3d 829, 834 (7th Cir. 2004), abrogated on other grounds by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) (citation omitted). See also Section III.A., supra. A “consumer report” is different from a “credit report” or consumer disclosure. Pettway v. Equifax Info. Servs., LLC, 2010 WL 653708, at *7 (S.D. Ala. Feb. 17, 2010). “Consumer reports” are generated by a CRA and delivered to a third party for use in deciding whether the consumer is eligible for credit or for other purposes. Id. (citing 15 U.S. C. § 1681a(d)(1)). In contrast, a consumer disclosure or “credit report” is a CRA’s file that is provided to the consumer, not to third parties, that contains information about the consumer recorded and retained by the CRA. Id (citations omitted). In other words, there cannot be a consumer report without delivery to a third party. Wantz, 386 F.3d at 834. Here, Plaintiff not only fails to specifically identify what allegedly inaccurate information was included in his Equifax consumer report, but he also fails to plead to what third party the consumer report was allegedly delivered. Plaintiff simply pleads “Defendants reported” information on his “credit report,” and that his “creditors and potential creditors have accessed Plaintiff’s reports.” See Petition, ¶¶ 11, 16-18. Plaintiff never, however, alleges Equifax issued a consumer report to a third party, or whether or how e was damaged as a result. In other words, Plaintiff fails to state a § 1681e(b) claim that is plausible on its face. As such, Plaintiff's claim should be dismissed. Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 5 of 8 6 052338/563207-57831468.1 C. Plaintiff’s Claim for Punitive Damages Should be Dismissed. Plaintiff claims that he is entitled to punitive dam ges pursuant to 15 U.S.C. § 1681n, which subjects a CRA to potential punitive damages in the event of a willful violation of the FCRA. However, Plaintiff’s Petition is completely devoid of any factual allegations concerning any act or omission by Equifax that could constitute a willful violation of the CRA. Plaintiff does not even identify how Equifax failed to follow reasonable procedures to ensure the maximum possible accuracy of the information contained in hs credit file. Again, his allegations concerning punitive damages are no more than naked ssertions. In his Petition, Plaintiff asserts that Equifax is “liable to the Plaintiff for willfully and negligently failing to comply with the requirements imposed on [CRAs] pursuant to 15 U.S.C. § 1681e(b) in assuring reasonable procedures to assure maximum possible accuracy to prevent such reporting of inaccurate information in Plaintiff’s reports.” See Petition, ¶ 26. However, the mere existence of inaccuracies in a consumer’s report al ne, if any, does not in itself amount to an act in conscious disregard of the consumer’s rights supporting a finding of willful noncompliance with the FCRA. See, e.g., Johnson v. Equifax, Inc., 510 F. Supp. 2d 638, 648 (S.D. Ala. 2007) (citation omitted); see also Guimond v. Trans Union LLC, 45 F.3d 1329, 1333 (9th Cir. 1995) (finding the FCRA does not impose strict liability). To maintain a claim for punitive damages here, Plaintiff must show a described practice that would be reckless or provide evidence that Equifax’s procedures were unreasonable. Hill v. Equifax Info. Servs., LLC, 974 F. Supp. 2d 865, 877 (M.D.N.C. 2013). Plaintiff does not describe any practice or procedure of Equifax with the requisite particularity that could be construed as “reckless;” he broadly asserts that “Defendants have no reasonable means of monitoring or updating accounts once they are discharged in bankruptcy.” See Petition, ¶ 15. Plaintiff’s punitive damages claim is solely based on his vague, generalized, and conclusory Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 6 of 8 7 052338/563207-57831468.1 allegations that Equifax is liable to Plaintiff for willfully violating the FCRA, which are entitled to no merit. As such, Plaintiff’s request for punitive damages should be dismissed because he fails to allege any facts regarding any act or omission of Equifax that could constitute a willful violation of the FCRA. WHEREFORE, PREMISES CONSIDERED, Defendant Equifax respectfully requests that the Court dismiss Plaintiff’s Petition pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Respectfully submitted, POLSINELLI PC /s/ G. Gabriel Zorogastua G. Gabriel Zorogastua MO Bar #59643 900 W. 48th Place, Suite 900 Kansas City, Missouri 64112 Telephone: (816) 374-0537 Facsimile: (816) 753-1536 gzorogastua@polsinelli.com ATTORNEYS FOR DEFENDANT EQUIFAX INFORMATION SERVICES LLC Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 7 of 8 8 052338/563207-57831468.1 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the or going has been filed electronically on the 20th day of March, 2017. Notice of this filing will be sent to the following parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s electronic filing. Alan J. Stecklein, Esq. Michael Rapp, Esq. STECKLEIN & RAPP, CHTD. 748 Ann Avenue Kansas City, Kansas 66101 aj@kcconsumerlawyer.com mr@kcconsumerlawyer.com Brian Johnson, Esq. STECKLEIN & RAPP, CHTD. 1503 Westport Road Kansas City, Missouri 64111 bj@kcconsumerlawyer.com Attorneys for Plaintiff Danne Wayne Webb, Esq. HORN, AYLWARD & BANDY , LLC 2600 Grand Boulevard, Suite 1100 Kansas City, Missouri 64108 dwebb@hab-law.com Attorneys for Defendant Experian Information Solutions Inc. Todd A. Lubben, Esq. BROWN & JAMES, PC 800 Market Street, Suite 1100 St. Louis, Missouri 63101 tlubben@bjpc.com Attorneys for Defendant Trans Union, LLC /s/ G. Gabriel Zorogastua Attorney for Defendant Equifax Information Services LLC Case 4:17-cv-00180-GAF Document 15 Filed 03/20/17 Page 8 of 8