(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 only exceptions to Section 1681h(e)’s preemptive force are claims for invasion of privacy that are based on “information furnished with malice or willful intent to injure such consumer.” 15 U.S.C. § 1681h(e) (emphasis added); Martinez v. Flagstar Bank, FSB, No. 2:15-cv-01934-KJM-CKD, 2016 U.S. Dist. LEXIS 94124, at *14 (E.D. Cal. July 19, 2016). As AnnieMac is not alleged to have furnished any information on Plaintiff, this exception cannot apply.

See Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). 15 USC 1681t attempts to expand preemption to all “subject matter” covered by 15 USC 1681s-2; 15 USC 1681h(e) is more specific, limiting itself to only statutory claims. As evidenced by the volume of case law provided by both Plaintiff and Defendant in this matter, the Third Circuit's reluctance to deal with the subject is reflective of the dispute in this area of the law.

Based on the above law and facts, the court should grant summary adjudication in favor of Gail Cope on the following points: 1. Regarding the common law defamation claim, MBNA is not entitled to qualified immunity under 15 U.S.C. § 1681h(e) because the user took no “adverse action” based on false and derogatory information furnished by MBNA to Gail Cope’s credit file. 2.

Courts across the country have found that reading § 1681t(b)(1)(F) to preempt all state law claims effec- tively eviscerates § 1681h(e) which, as discussed infra at note 6, carves out an exception for defamation claims based on “false information furnished with mal- ice or willful intent to injure” the plaintiff. 15 U.S.C. § 1681h(e) (emphasis added). See, e.g., Himmel- stein, supra, 931 F.Supp.2d at 56-60; Gorman v. Wolpoff & Abramson, LLP, 552 F.3d 1008, 1026–27 (9th Cir.2009) (“Attempting to reconcile [§§ 1681t and 1681h(e)] has left district courts in disarray.”)

15 U.S.C. § 1681h(e) provides: no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy or negligence with respect to the reporting of information against any … person who furnishes information to a credit reporting agency … except as to false information furnished with malice or willful intent to injure such consumer. See 15 U.S.C. § 1681h(e). The second preemption provision, 15 U.S.C. § 1681t(b)(1)(F) provides, in pertinent part, No requirement or prohibition may be imposed under the laws of any State … with respect to any subject matter regulated under … Section 1681s-2 of this title, 4 If Plaintiff is permitted to replead his claim with sufficient particularity, he should be compelled to adequately allege facts to support willfulness for his claim under Section 1681n and actual damages for his claims under Sections 1681n and 1681o.

15 U.S.C. § 1681h(e) provides: no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy or negligence with respect to the reporting of information against any … person who furnishes information to a credit reporting agency … except as to false information furnished with malice or willful intent to injure such consumer. See 15 U.S.C. § 1681h(e). The second preemption provision, 15 U.S.C. § 1681t(b)(1)(F) provides, in pertinent part, No requirement or prohibition may be imposed under the laws of any State … with respect to any subject matter regulated under … Section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies….

. . . Although some courts have adopted a different approach, finding that preemption of state common law tort claims relating to the furnishing of credit information should be analyzed under § 1681h(e) and state statutory claims relating to the furnishing of credit information should be analyzed under § Case 2:15-cv-02768-JTF-dkv Document 41-1 Filed 01/26/17 Page 5 of 12 PageID 378 28921256 v1 6 1681t(b)(1)(F), the Court finds that the better approach is the majority approach expressed in Westbrooks and the cases cited above. Birdsall v. Peoples Bank of the S., 2014 WL 640704, at *4 (E.D. Tenn. Feb. 19, 2014) (internal citations omitted) (dismissing plaintiff’s negligence and defamation claim as they were based on conduct regulated under Section 1681s-2 and, therefore, preempted by the FCRA).

; see Morris v. Equifax Information Servs., LLC, 457 F.3d 460, 471–72 (5th Cir. 2006); Young, 294 F.3d at 638; Meisel v. USA Shade and Fabric Structures Inc., 795 F. Supp. 2d 481, 486 (N.D. Tex. 2011) (“section 1681h(e) does not preempt those state law causes of action against furnishers that are premised on the furnishment of false information with malice.”).

98 The Amended Complaint does not specify what duties, but the causes of action appear to be premised on the same allegations underlying the FCRA claims—namely inaccurate reporting and failing to conduct a reasonable reinvestigation. Mr. Collins also claims Experian acted either negligently or wantonly in the hiring, training, and/or supervising of its employees.99 These 97 15 U.S.C. § 1681h(e). 98 See FAC (Docket No. 29) at ¶ 79.