Clarks v. Experian

MOTION to Dismiss for Failure to State a Claim

D. Md.January 26, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND HENRY J. CLARKS, ) ) Plaintiff, ) ) v. ) Case No.: 8:17-CV-00151 ) EXPERIAN, ) ) Defendant. ) EXPERIAN INFORMATION SOLUTIONS, INC.’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Experian Information Solutions, Inc. (“Experian”)1, by and through its attorneys, respectfully requests that this Honorable Court dismiss, with prejudice, Plaintiff’s claims set forth in his Amended Complaint against Experian. The reasons for this request are set forth below. I. BACKGROUND Henry Clarks (“Plaintiff” or “Clarks”) filed his original complaint against CT Corporation System (the “Complaint”) in the District Court of Maryland for Prince George’s County on August 19, 2016. Dkt. No. 2. Realizing that CT Corporation System was only Experian’s resident agent for service of process, Plaintiff filed an Amended Complaint naming Experian as a Defendant on November 30, 2016 and dismissed his claims against CT Corporation System on December 30, 2016. Experian was served with a copy of the Summons and Complaint on December 27, 2016. Experian removed Plaintiff’s action to this Court on January 19, 2017. Dkt. No. 1. 1 Experian Information Solutions, Inc. is incorrectly identified in the Amended Complaint solely as Experian. Case 8:17-cv-00151-PWG Document 12 Filed 01/26/17 Page 1 of 6 2 For the reasons advanced below, Experian respectfully requests that this Court dismiss, with prejudice, Plaintiff’s claims for failure to state any claim upon which relief can be granted. II. STANDARD OF REVIEW As to the standard of review for a motion to dismiss, in Jackson v. Experian Financial Services, No. RDB-13-1758, 2014 WL 794360, at *1 (D. Md. Feb. 26, 2014), the Court wrote: Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief,’ and each allegation therein must be ‘simple, concise, and direct.’ Fed. R. Civ. P. 8(a)(2), 8(d)(1). In general, a pleading must provide the defendant and the court with ‘fair notice of what the plaintiff's claim is and the grounds upon which it rests.’ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Additionally, a complaint must allege sufficient facts to advance a plaintiff's claim ‘across the line from conceivable to plausible.’ Twombly, 550 U.S. at 570. ‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A plaintiff must allege facts supporting each element of a claim in his or her Complaint. Suit v. Direct TV, LLC, Civil Action No. RDB-13-0466, 2013 WL 6817630, at *1 (D. Md. Dec. 20, 2013). As this Court has held, “‘the proper length and level of clarity for a pleading cannot be defined with any great precision and is largely a matter for the discretion of the trial court.’” Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999) (quoting Charles A. Wright & Arthur R. Miller, 5 Federal Practice & Procedure § 1217 (2d ed. 1990)). Although a pro se plaintiff is generally given more leeway than a party represented by counsel, this Court “‘has not hesitated to require even pro se litigants to state their claims in an understandable and efficient manner.’” Id. (citing Anderson v. Univ. of Md. Sch. of Law, 130 F.R.D. 616, 617 (D. Md. 1989), aff'd, 900 F.2d 249, 1990 WL 41120 (4th Cir. 1990) (unpublished table decision)). To that end, a district court “is not obliged to ferret through a [c]omplaint, searching for viable claims.” Wynn-Bey v. Talley, No. RWT-12-3121, 2012 WL 5986967, at *2 (D. Md. Nov. 28, 2012). Rather, a court Case 8:17-cv-00151-PWG Document 12 Filed 01/26/17 Page 2 of 6 3 “‘may dismiss a complaint that is so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised.’” Id. (quoting Salhuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).2 III. ARGUMENT A. Plaintiff’s FCRA Claim Against Experian Fails Because Plaintiff Has Not Sufficiently Pled the Required Elements of a Reinvestigation Claim To establish an FCRA claim against Experian under Sections 611(a), 616 and 617 [Sections 1681i, 1681n and 1681o] of the FCRA, Am. Compl. at 1, Plaintiff must allege that, in addition to other elements, a Credit Reporting Agency (“CRA”) failed to conduct a reasonable reinvestigation of an item of information after the consumer directly notifies the CRA that the consumer is disputing the accuracy or completeness of the item of information.3 Petty v. Equifax Info. Servs., LLC, No. CCB-10-694, 2010 WL 4183542, at *3 (D. Md. Oct. 25, 2010). 2 See also Hinton v. Trans Union, LLC, 654 F. Supp. 2d 440, 446 (E.D. Va. 2009), aff’d, 382 Fed. Appx. 256 (4th Cir. 2010) (“Finally, and particularly pertinent to this case, the requirement that a plaintiff’s factual allegations give the defendant fair notice of what the … claim is and the grounds upon which it rests applies to all claimants, including those proceeding pro se.”)(internal citations omitted). 3 Section 1681i of the FCRA provides in relevant part: (a) Reinvestigations of disputed information. - (1) Reinvestigation required. - (A) In general. - Subject to subsection (f), if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly or indirectly through a reseller of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller. (2) Prompt notice of dispute to furnisher of information.- (A) In general.-Before the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer or a reseller in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all Case 8:17-cv-00151-PWG Document 12 Filed 01/26/17 Page 3 of 6 4 Here, Plaintiff’s sole allegation is that Experian failed to reinvestigate disputed entries and “provide viable evidence of debt bearing my signature as proof.” Am. Compl. ¶ 9. This utterly fails to state a reinvestigation claim under the FCRA against Experian. Plaintiff never alleges: (1) he disputed items of information directly to Experian, (2) the nature of such disputes, (3) when he disputed such items, (4) that Experian did not conduct a reasonable reinvestigation of these disputes, and (5) when and to whom the disputed information was reported by Experian, such certain creditors who received inaccurate information. Ogbon v. Beneficial Credit Servs., Inc., No. 10-cv-03760, 2011 WL 347222, at * 3 (S.D.N.Y. Feb. 1, 2011)(dismissal of 1681i(a) claims for plaintiff’s failure to identify the inaccurate information, when and to whom it was provided and when the dispute was sent to the CRAs); Hill v. Wilmington Fin., Inc., No. 13-cv- relevant information regarding the dispute that the agency has received from the consumer or reseller. (B) Provision of other information.-The consumer reporting agency shall promptly provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from the consumer or the reseller after the period referred to in subparagraph (A) and before the end of the period referred to in paragraph (1)(A). (4) Consideration of consumer information.-In conducting any reinvestigation under paragraph (1) with respect to disputed information in the file of any consumer, the consumer reporting agency shall review and consider all relevant information submitted by the consumer in the period described in paragraph(1)(A) with respect to such disputed information. (5) Treatment of inaccurate or unverifiable information- (A) In general. - If, after any reinvestigation under paragraph (1) of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, the consumer reporting agency shall- (i) promptly delete that item of information from the file of the consumer, or modify that item of information, as appropriate, based on the results of the reinvestigation; and (ii) promptly notify the furnisher of that information that the information has been modified or deleted from the file of the consumer. Case 8:17-cv-00151-PWG Document 12 Filed 01/26/17 Page 4 of 6 5 524, 2013 WL 4659704 (D. Md. Aug. 29, 2013). In Hill, in granting motions to dismiss, the court stated: Hill’s Complaint lacks specific allegations concerning the time, dates, conduct, or actors involved in any violation of the FDCPA [Fair Debt Collection Practices Act]. His bare, conclusory allegations are insufficient to state a claim under the FDCPA. See also Montalbano v. National Arbitration Forum, LLC, 2012 WL 3233595, at *5 (D. Md. Aug. 3, 2012) (granting a motion to dismiss where a Plaintiff’s FDCPA allegations were ‘devoid of factual details’ and made ‘in conclusory terms’). Id. at 4. Accordingly, without any allegation that Plaintiff actually disputed items to Experian and that Experian failed to conduct a reinvestigation of Plaintiff’s dispute, Plaintiff’s Amended Complaint is fatally flawed and must be dismissed. B. Plaintiff’s Claim Fails Because Plaintiff Has Not Pled Experian Caused Him Any Damage Even if the Court were to find that Plaintiff’s FCRA claim should not be dismissed for the reasons discussed above, Plaintiff’s claim must still be dismissed because Plaintiff has not pled that Experian caused him any actual damages. While other courts have held that merely conclusory allegations that a plaintiff has been damaged by items reported on a credit report cannot withstand motion to dismiss, here, Plaintiff makes no allegations at all regarding how he was damaged by Experian. Ross v. F.D.I.C., 625 F.3d 808, 818 (4th Cir. 2010)(quoting Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996)); Davenport v. Sallie Mae, Inc., 124 F. Supp. 3d 574, 583 (D. Md. 2015). Because Plaintiff has made no allegation that Experian caused him actual damages, Plaintiff’s Amended Complaint must be dismissed. IV. CONCLUSION For all of the foregoing reasons, Experian respectfully requests that its Motion to Dismiss be granted and that Plaintiff’s claims asserted against Experian in the Amended Complaint be dismissed with prejudice. Case 8:17-cv-00151-PWG Document 12 Filed 01/26/17 Page 5 of 6 6 Dated: January 26, 2017 SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A. By: /s/ Joy C. Einstein 12505 Park Potomac Avenue, 6th Floor Potomac, Maryland 20854 Telephone: (301) 945-9250 Facsimile: (301) 230-2891 e-mail: jeinstein@shulmanrogers.com Counsel for Experian CERTIFICATE OF SERVICE I hereby certify that on January 26, 2017, I served via First Class Mail a copy of the foregoing Motion to Dismiss to the following: Henry J. Clarks 7 Mattawoman Way Accokeek, MD 20607 /s/ Joy Einstein Case 8:17-cv-00151-PWG Document 12 Filed 01/26/17 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND HENRY J. CLARKS, ) ) Plaintiff, ) ) v. ) Case No.: ) EXPERIAN, ) ) Defendant. ) ORDER Upon consideration of Defendant Experian Information Solutions, Inc.’s Motion to Dismiss the Amended Complaint, and any opposition thereto, it is this ______ day of _________________, 2017, hereby ORDERED, that the Motion to Dismiss is hereby GRANTED; and it is further ORDERED that Plaintiff’s claims asserted against Experian in the Amended Complaint are dismissed with prejudice. _________________________________________ Judge, United States District Court of the District of Maryland 8:17-cv-00151 Case 8:17-cv-00151-PWG Document 12-1 Filed 01/26/17 Page 1 of 1