Nickens v. Chex Systems, Inc. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.January 17, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DEMETRIUS NICKENS Plaintiff, vs. CHEX SYSTEMS, INC. and FIDELITY NATIONAL INFORMATION SERVICES, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-cv-00121-TWT-LTW DEFENDANTS’ MOTION TO DISMISS Defendants Chex Systems, Inc. and Fidelity National Information Services, Inc. (“Defendants”), respectfully move this Court pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss this case for failure to state a claim upon which relief may be granted. In further support of this Motion, Defendants respectfully submit the enclosed Memorandum of Law. Respectfully submitted, this 17th day of January, 2017. /s/John P. Jett John P. Jett (GA Bar No. 827033) Kathryn Isted (GA Bar No. 908030) Case 1:17-cv-00121-TWT-LTW Document 4 Filed 01/17/17 Page 1 of 4 2 KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, NE, Suite 2800 Atlanta, Georgia 30309 (404) 815-6500 (telephone) (404) 815-6555 (facsimile) jjett@kilpatrictownsend.com kisted@kilpatricktownsend.com Counsel for Defendants Case 1:17-cv-00121-TWT-LTW Document 4 Filed 01/17/17 Page 2 of 4 3 LOCAL RULE 7.1 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing pleading filed with the Clerk of Court has been prepared in 13 point Century Schoolbook font in accordance with Local Rule 5.1(C). Dated: January 17, 2017 /s/John P. Jett John P. Jett Case 1:17-cv-00121-TWT-LTW Document 4 Filed 01/17/17 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on this 17th day of January, 2017, I caused a copy of the foregoing to be served on Plaintiff by depositing a copy in the U.S. Mail, postage prepaid, addressed as follows: Demetrius C. Nickens 1670 Harbin Road, SW Atlanta, Georgia 30311 /s/John P. Jett John P. Jett Case 1:17-cv-00121-TWT-LTW Document 4 Filed 01/17/17 Page 4 of 4 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DEMETRIUS NICKENS Plaintiff, vs. CHEX SYSTEMS, INC. and FIDELITY NATIONAL INFORMATION SERVICES, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:17-cv-00121-TWT-LTW MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 1 of 18 2 Defendants Chex Systems, Inc. and Fidelity National Information Services, Inc. (“Defendants”), respectfully submit this Memorandum in support of their Motion to Dismiss. INTRODUCTION AND SUMMARY OF RELEVANT FACTS Plaintiff Demetrius Nickens (“Plaintiff”), proceeding pro se, filed his Complaint in the State Court of Fulton County, Georgia on November 13, 2016. He served Defendants with the lawsuit on December 27, 2016, and Defendants timely filed their Notice of Removal on January 11, 2017. [Doc. No. 1]. In his Complaint, Plaintiff alleges that Defendants are “credit reporting agencies” under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681- 1681x (“FCRA”) and, in violation of that act, reported inaccurate information about him to known and unknown third parties.1 While Plaintiff asserts six causes of action, all of his claims are based upon this single conclusory allegation. Plaintiff’s Complaint is merely a formulaic recitation of the elements of his claims and is devoid of factual allegations sufficient to give Defendants meaningful notice of the nature of his lawsuit. For these reasons 1 Although Defendants deny allegations in the Complaint and deny that they are liable for Plaintiff’s claims, they accept the well-pleaded allegations in the Complaint as being true solely for the purposes of this motion to dismiss. See Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006) (“At the motion to dismiss stage, all well-pleaded facts are accepted as true . . . .”). Defendants reserve the right to dispute those allegations at the appropriate time, if necessary. Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 2 of 18 3 and others, all of Plaintiffs’ claims fail as a matter of law. Counts I and VI (negligent and willful violations of FCRA) should be dismissed under Federal Rule of Civil Procedure 8 (“Rule 8”) because they are insufficiently pled. Count III (defamation), Count IV (negligence), Count V (invasion of privacy), and Count VII (willful violation of the Georgia Fair Business Practices Act, O.C.G.A. §§ 10-1-39-10-1-407 (“GFBPA”)) should be dismissed with prejudice because they are preempted by the FCRA. Those state-law claims should also be dismissed for the independent reason that they are insufficiently pled under Rule 8. Finally, Count VII (willful violation of the GFBPA) should be dismissed with prejudice for the additional independent ground that Plaintiff failed to satisfy the statutory prerequisites to bringing that claim. Therefore, Defendants respectfully move the Court to dismiss Plaintiff’s Complaint in its entirety, Counts I-VII (there is no Count II in the Complaint). ARGUMENT AND CITATION TO AUTHORITIES “To survive a 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, 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard “does Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 3 of 18 4 not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 678 (quoting Twombly, 550 U.S. at 555). Thus, the complaint must contain “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. Moreover, “[t]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1333 (11th Cir. 2010). I. Plaintiff’s FCRA Claims, Counts I and IV, Fail as a Matter of Law. Plaintiff alleges that Defendants are liable “pursuant to 15 U.S.C. § 1681n and 15 U.S.C. § 1681o” for violation of 15 U.S.C. § 1681e(b) and for other conduct relating to addressing inaccuracies in a consumer’s credit report or file. Yet even when construing Plaintiff’s allegations and in his favor, especially because Plaintiff is a pro se litigant,, Plaintiff’s claims are little more than threadbare legal conclusions. Plaintiff’s legal assertions lack supporting factual allegations and fail as a matter of law under Rule 8 and its jurisprudence. To state a claim for a violation of FCRA section 1681e(b)[,] a plaintiff must allege: (1) the CRA published an inaccurate consumer report to a third party; (2) in publishing its consumer report, the CRA failed to follow reasonable procedures to ensure Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 4 of 18 5 the maximum possible accuracy of the consumer report; and (3) the plaintiff suffered actual damages as a result of the CRA’s failure to follow reasonable procedures. Lazarre v. JPMorgan Chase Bank, N.A., 780 F. Supp. 2d 1320, 1328 (S.D. Fla. 2011). Thus, to withstand Rule 8, the complaint must provide “factual allegations that are not merely consistent with the material elements of a [section 1681e(b)] claim, but rather, that plausibly suggest the elements.” See Allmond v. Bank of Am., No. 3:07-CV-186-J-33JRK, 2008 WL 2445652, at *2- 3 (M.D. Fla. June 16, 2008). Courts in the Eleventh Circuit and across the country find that a plaintiff has not sufficiently pled a section 1681e(b) violation “merely by quoting the ‘terms of art’ that encompass a given legal theory” without providing plausible factual allegations showing the grounds for relief. See, e.g., id. (dismissing a section 1681e(b) claim because the complaint merely provided a formulaic recitation of the elements with sparse factual allegations).2 For example, the plaintiff cannot merely state that inaccurate 2 See also Lazarre, 780 F. Supp. 2d at 1328 (dismissing a section 1681e(b) claim because the complaint merely stated conclusory allegations consistent with the elements without providing why and how the elements occurred); (dismissing a section 1681e(b) claim because the court was “not obligated to accept [the plaintiff’s] conclusory statement that the information in his credit files was inaccurate”); Orozco v. Experian Info. Sols., No. 2:12-CV-00955- MCE, 2012 WL 2799681, at *4 (E.D. Cal. July 9, 2012) (dismissing a section 1681e(b) claim because the complaint “simply recite[d] the elements . . . in a Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 5 of 18 6 information was “published . . . to a third party,” but must explain “when the information was reported or to whom.” Jackson v. Warning, No. PJM 15- 1233, 2016 WL 520947, at *5 (D. Md. Feb. 5, 2016). Likewise, merely stating that the defendant “failed to follow reasonable procedures” without explaining what the procedures were and why they were allegedly unreasonable is insufficient. Lazarre, 780 F. Supp. 2d at 1328. Plaintiff falls far short of sufficiently pleading a claim for either a negligent or willful violation of section 1681e(b) under sections 1681o and 1681n, respectively. Like in the aforementioned cases, the Complaint merely recites the material elements of the claim without any non-conclusory factual allegations supporting the elements. Specifically, the Complaint asserts that Defendants “willfully and negligently fail[ed] to employ and follow reasonable procedures to assure maximum possible accuracy of Plaintiff’s credit report, information and file,” Compl. ¶ 21, but is devoid of any factual allegations to support that legal conclusion. Similarly, while the Complaint vaguely alleges that Defendants “disseminated [the inaccurate reports] to various persons and credit grantors, both known and unknown,” Compl. ¶ 10, it contains no conclusory fashion without explaining how the facts alleged support the cause of action”); Ogbon v. Beneficial Credit Servs., Inc., No. 10 CV 03760 GBD, 2011 WL 347222, at *2-3 (S.D.N.Y. Feb. 1, 2011) (dismissing a section 1681e(b) claim where “[t]he Complaint lack[ed] factual allegations regarding the nature of each CRA Defendant’s alleged noncompliance”). Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 6 of 18 7 allegations explaining when such dissemination allegedly happened or identifying who the various known and unknown persons are who received the reports. Finally, while Plaintiff asserts that Defendants acted “negligently,” “willfully,” and “malicious[ly],” Compl. ¶¶ 21, 42, he provides no allegations that explain or support such naked conclusions. Consequently, Plaintiff’s section 1681e(b) claims, Counts I and IV, are merely “formulaic recitation[s] of the elements,” and should be dismissed. See Lazarre, 780 F. Supp. 2d at 1329. In addition, while the Complaint does not specify any other provisions of the FCRA, to the extent Plaintiff is asserting a claim under 15 U.S.C. § 1681i(a), such claim is similarly deficient. To state a claim for a violation of FCRA section 1681i(a)[,] a plaintiff must allege: (1) the [consumer report in dispute] contains inaccurate or incomplete information; (2) the [plaintiff] notified the [CRA] of the alleged inaccuracy; (3) the dispute is not frivolous or irrelevant; (4) the [CRA] failed to respond or conduct a reasonable reinvestigation of the disputed items; [and] (5) the failure to reinvestigate caused the [plaintiff] to suffer out-of-pocket losses or intangible damages such as humiliation or mental distress. Lazarre, 780 F. Supp. 2d at 1329. While the Complaint asserts the legal conclusions that Defendants “fail[ed] to properly and timely delete the inaccurate information from the Plaintiff’s credit files despite being unable to verify the accuracy of the Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 7 of 18 8 information and/or being provided with proof of its inaccuracy; and . . . continu[ed] to report the inaccurate information despite having knowledge of its inaccuracy and/or inability to be verified,” it does not contain any factual allegations in support. Compl. ¶ 21. Threadbare allegations that the “consumer report was inaccurate and [the plaintiff] notified [the defendant] of the alleged inaccuracy” are insufficient to state a claim under section 1681i(a). Lazarre, 780 F. Supp. 2d at 1329. Thus, to the extent Plaintiff seeks to assert a claim under section 1681i(a), the claim is insufficiently pled and should be dismissed. II. Plaintiff’s State-Law Claims Fail as a Matter of Law. As explained below, Plaintiffs state law claims, Defamation (Count III), Negligence (Count IV), Invasion of Privacy (Count V), and Violation of the GFBPA (Count VII), fail as a matter of law on following two independent grounds: (1) they are preempted by the FCRA and (2) they are insufficiently pled under Rule 8, as interpreted by Iqbal, Twombly, and their progeny. Plaintiff’s claim for violation of the GFBPA also fails because Plaintiff has not complied with the statutory prerequisites to bringing that claim. A. Plaintiff’s State-Law Claims Are Preempted by the FCRA. “The FCRA is a comprehensive statutory scheme designed to regulate the consumer reporting industry.” Spencer v. Nat’l City Mortg., 831 F. Supp. Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 8 of 18 9 2d 1353, 1357 (N.D. Ga. 2011) (quoting Ross v. F.D.I.C., 625 F.3d 808, 812 (4th Cir. 2010)); see also Thornton v. Equifax, Inc., 619 F.2d 700, 703 (8th Cir. 1980). The trade-off for these federally mandated obligations and remedies is that consumers alleging wrongdoing by consumer reporting agencies must bring their claims pursuant to the FCRA. See Ross, 625 F.3d at 814; Thornton, 619 F.2d at 703. The FCRA specifically prohibits consumers from “bring[ing] any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency . . . except as to false information furnished with malice or willful intent to injure such consumer.” 15 U.S.C. § 1681h(e). “The only exception to this bar is a narrow one, requiring proof of ‘malice or willful intent to injure [the] consumer.’” Ross, 625 F.3d at 814. First, Plaintiff’s defamation claim, Count III, is preempted because section 1681h(e) expressly preempts causes of action for “defamation” based upon information disclosed by credit reporting agencies. See 15 U.S.C. § 1681h(e). While there is “narrow” exception for when the false information was furnished with malice or willful intent to injure the consumer, see Ross, 625 F.3d at 814, Plaintiff has failed to sufficiently plead such intent. Plaintiff mentions the word “malice” in his defamation claim, alleging that “despite the repeated notices from Plaintiff, Defendants has acted with Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 9 of 18 10 malice by failing to communicate the information provided to them by Plaintiff to all provides [sic] credit information concerning the Plaintiff.” This allegation, however, is vague and does not allege that Defendants were motivated by the “willful intent to injure” Plaintiff necessary to escape the narrow exception to preemption under section 1681h(e). See Young v. August Collection Agency, Inc., No. 111-046, 2011 WL 2462065, at *3 (S.D. Ga. May 16, 2011) (holding that conclusory allegations are insufficient to plead the malice or willful intent to injure necessary to avoid preemption under section 1681h(e)). Second, Plaintiff’s negligence claim, Count IV, is preempted by section 1681h(e) “[b]ecause negligence claims, by definition, are not premised upon Defendant’s malice or willful intent to injure.” Johnson v. Citimortgage, Inc., 351 F. Supp. 2d 1368, 1379-80 (N.D. Ga. 2004); see also Shannon v. Equifax Info. Servcs., 764 F. Supp. 2d 714, 727-28 (E.D. Pa. 2011) (“By definition, a plaintiff cannot allege willful negligence. Therefore, the only negligence action that Plaintiff can pursue is a negligence action under the FCRA.” ); Parks v. Experian Credit Bureau, 2010 WL 457345, **3-4 (M.D. Fla. Feb. 4, 2010) (granting motion to dismiss “gross negligence” claim). Third, Plaintiff’s invasion of privacy claim is preempted because section 1681h(e) of the FCRA expressly preempts causes of action for “invasion of Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 10 of 18 11 privacy” based upon information disclosed by credit reporting agencies, see 15 U.S.C. § 1681h(e), and Plaintiff has not pled that the “narrow” exception for disclosure of false information with malice or willful intent to injure the consumer applies, see Ross, 625 F.3d at 814. Fourth, Plaintiff’s claim for violation of the GFBPA is preempted by the FCRA. “The [G]FBPA prohibits ‘[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce.’” Adu v. Green Tree Servicing, LLC, No. 1:15-CV-00012-CC-RGV, 2015 WL 12777991, at *8 (N.D. Ga. Oct. 28, 2015) (quoting O.C.G.A. § 10-1- 393(a)), report and recommendation adopted, No. 1:15-CV-00012-CC-RGV, 2015 WL 12778343 (N.D. Ga. Dec. 7, 2015). “The Georgia legislature, however, has evidenced a clear intent to limit the scope of the (FBPA) to the [unregulated] consumer market.” Id. Thus, GFBPA claims that are based upon conduct that is governed by federal statutes are preempted. See id.; Sutton v. Bank of Am., N.A., No. 1:11-CV-3765-CAP, 2012 WL 2394533, at *6 (N.D. Ga. Apr. 11, 2012) (dismissing GFBPA claim as preempted by federal statute). Here, Plaintiff’s GFPBA claim, Count VII, merely incorporates the same allegations that comprise his FCRA claims (i.e., vague allegations that Defendants are credit reporting agencies that reported inaccurate Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 11 of 18 12 information about Plaintiff), and then concludes that “Defendants conduct constitutes violations of [the GFBPA].” Compl. ¶¶ 44-46. Because such allegations merely recite the language from various FCRA provisions, they necessarily seek redress for conduct governed by the FCRA and are preempted. See Adu, 2015 WL 12777991, at *8. Accordingly, all of Plaintiff’s state-law claims, Counts III, IV, V and VII, are preempted by the FCRA and should be dismissed with prejudice. See Samuel v. Ocwen Loan Servicing, LLC, No. 1:14-CV-02398-ELR, 2015 WL 11347591, at *3 (N.D. Ga. Apr. 15, 2015) (dismissing state law claim preempted by the FCRA with prejudice). B. Plaintiff’s State Law Claims Are Insufficiently Pled. Even if Plaintiff’s state-law claims are not preempted, they should still be dismissed under Rule 8, as interpreted by Iqbal, Twomby, and their progeny, because they merely recite the material elements of the claims without non-conclusory factual allegations in support. See, e.g., Baker v. Joseph, 938 F. Supp. 2d 1265, 1269 (S.D. Fla. 2013) (dismissing a defamation claim because the allegations related to the element of malice were merely legal conclusions); Samuel v. Ocwen Loan Servicing, LLC, No. 114CV02398ELRLTW, 2015 WL 11256663, at *9 (N.D. Ga. Feb. 12, 2015), report and recommendation adopted, No. 1:14-CV-02398-ELR, 2015 WL Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 12 of 18 13 11347591 (N.D. Ga. Apr. 15, 2015) (“Plaintiffs’ GFBPA claims fail to state a plausible claim for relief and should be DISMISSED.”) C. Plaintiff’s GFBPA Claim Fails Because Plaintiff Did Not Satisfy the GFBPA’s Prerequisites to Filing a Lawsuit. In Count VII, Plaintiff alleges that Defendants violated unspecified provisions of the GFBPA. Compl. ¶¶ 44-46. Plaintiff does not provide any factual allegations specific to this claim, but rather, merely incorporates all allegations in his Complaint. See id. Would-be plaintiffs seeking civil remedies under the FBPA must first submit a “written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered” to “any prospective respondent.” O.C.G.A. § 10-1 399(b). The notice requirement is a prerequisite to bringing suit, Lynas v. Williams, 216 Ga. App. 434, 435, 454 S.E.2d 570, 572 (1995), and must be completed at least 30 days before a suit is filed, O.C.G.A. § 10-1-399(b). Here, Plaintiff does not allege that he submitted a written demand to Defendants. In fact, Plaintiff made no attempt to inform Defendants of his intent to file this lawsuit before Defendants were served with the Complaint. Because Plaintiff failed to provide the notice that the FBPA requires as a pre- condition to pursuing relief under the statute, the Court should dismiss his Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 13 of 18 14 claim under the FBPA with prejudice. See Sharpe v. Gen. Motors Corp., 198 Ga. App. 313, 313-14, 401 S.E.2d 328, 329-330 (1991) (FBPA claim properly dismissed where “no notice was ever given”).3 III. Plaintiff’s Derivative Claims, Including Attorney’s Fees and Punitive Damages, Fail as a Matter of Law. Plaintiff’s prayer in his Complaint for damages that are completely derivative of his other claims, including his prayer for attorney’s fees and punitive damages, fail because all of his other claims fail. Even if Plaintiff’s claims were not dismissed, however, Plaintiff’s prayer for “[c]osts and reasonable attorney’s fees pursuant to 15 U.S.C. §§ 1681n and 1681o” fails as a matter of law because pro se litigants may not recover attorney’s fees under the FCRA. See, e.g., Baker v. Trans Union LLC, 2010 WL 2104622, *10 (D. Ariz. May 25, 2010); McKinney v. Trans Union, 3 It also is unlikely that the GFBPA was intended to embrace a private set of events between a single consumer and a consumer reporting agency. The GFBPA expressly imposes three prohibitions that involve consumer reporting agencies: (1) obtaining from a consumer reporting agency information relative to a consumer under false pretenses; (2) providing information concerning an individual from the consumer reporting agency’s files to a person not authorized to receive that information; and (3) providing two consumer reports per calendar year, upon request and without charge. O.C.G.A. § 10-1-393(b)(29). There is no allegation in Plaintiff’s Complaint that implicates any of those three GFBPA requirements imposed on consumer reporting agencies. Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 14 of 18 15 LLC, 2010 WL 374103, *4 (E.D. Mich. Jan. 25, 2010); Burns v. Bank of Am., 655 F. Supp. 2d 240, 253 (S.D.N.Y. 2008). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss all of Plaintiff’s claims on the following grounds. Count I for negligent violation of the FCRA should be dismissed because it is insufficiently pled under Rule 8. There is no Count II in the Complaint. Count III for defamation should be dismissed with prejudice because it is preempted by the FCRA, or, in the alternative, it is insufficiently pled under Rule 8. Count IV for negligence should be dismissed with prejudice because it is preempted by the FCRA, or, in the alternative, it is insufficiently pled under Rule 8. Count V for invasion of privacy should be dismissed with prejudice because it is preempted by the FCRA, or, in the alternative, it is insufficiently pled under Rule 8. Count VI for willful violation of the FCRA should be dismissed because it is insufficiently pled. Count VII for willful violation of the GFBA should be dismissed with prejudice because it is preempted by the FCRA, or, in the alternative, it should be dismissed with prejudice because Plaintiff failed to comply with the statutory prerequisites to bringing a GFBA claim, or, in the alternative, it should be dismissed because it is insufficiently pled under Rule 8. In addition, Plaintiff’s prayer Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 15 of 18 16 for derivative damages, including attorney’s fees and punitive damages, should be dismissed because all claims from which they could be derived fail as a matter of law, or, in the alternative, Plaintiff cannot seek attorney’s fees under the FCRA as a pro se litigant. Respectfully submitted, this 17th day of January, 2017. /s/John P. Jett John P. Jett (GA Bar No. 827033) Kathryn Isted (GA Bar No. 908030) KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, NE, Suite 2800 Atlanta, Georgia 30309 (404) 815-6500 (telephone) (404) 815-6555 (facsimile) jjett@kilpatrictownsend.com kisted@kilpatricktownsend.com Counsel for Defendants Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 16 of 18 17 LOCAL RULE 7.1 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing pleading filed with the Clerk of Court has been prepared in 13 point Century Schoolbook font in accordance with Local Rule 5.1(C). Dated: January 17, 2017 /s/John P. Jett John P. Jett Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 17 of 18 18 CERTIFICATE OF SERVICE I hereby certify that on this 17th day of January, 2017, I caused a copy of the foregoing to be served on Plaintiff by depositing a copy in the U.S. Mail, postage prepaid, addressed as follows: Demetrius C. Nickens 1670 Harbin Road, SW Atlanta, Georgia 30311 /s/John P. Jett John P. Jett Case 1:17-cv-00121-TWT-LTW Document 4-1 Filed 01/17/17 Page 18 of 18