Instead, Marchioli makes a conclusory claim that he is entitled to actual damages underneath Section 1681o because of “Defendants actions, errors and omissions . . . .” ECF No., ¶40. But this type of “label and conclusion” pleading is insufficient to state a claim underneath Section 1681o. See Twombly, 550 U.S. at 555.

D. Attorneys’ Fees under the FCRA Are in the Nature of Penalties or Fines Plaintiff requests attorneys’ fees under 15 U.S.C. §§ 1681n(a)(3) and 1681o(a)(2). (See Compl. ¶ 35.) But the Penalty Bar shields Fannie Mae from liability for attorneys’ fees, which are in the nature of penalties. See, e.g., Suntrust Mortg., Inc. v. AIG United Guar. Corp., No. 3:09cv529, 2011 WL 1225989, at *20 (E.D. Va. Mar. 29, 2011)

Similarly here, if the parties were allowed to litigate the FCRA claim and the assault and battery counterclaim in one lawsuit, this Court would have to allocate fees between that part of the action under the FCRA, which includes fee-shifting provisions, see 15 U.S.C. §§ 1681n, 1681o, and that part of the action on the assault and battery counterclaim, which has no fee shifting component. (Compare Def.’s Answer and Counterclaim, Prayer for Relief ¶ 3 (seeking fees and costs on Defendant’s “Cause of Action” under 15 U.S.C. §§ 1681n and 1681o) with Def.’s Answer and Counterclaim, Case 0:04-cv-04273-JNE-AJB Document 34 Filed 10/11/05 Page 12 of 15 13 Prayer for Relief ¶ 2 (not seeking fees and costs on Defendant’s assault and battery counterclaim).) Thus, under the logical relation test – as under each of the other three tests – Defendant’s counterclaim for assault and battery is permissive, not compulsory. B. Defendant’s permissive counterclaim does not have the required independent basis for federal jurisdiction.

3 This Court does not have subject matter jurisdiction to reach the merits of the Complaint – whether or not the violation was “willfu ” – because Jacobson lacks standing Case 4:16-cv-00596-JAS-LCK Document 14-1 Filed 11/11/16 Page 11 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- FACTA provides for the recovery of attorney’s fees and costs upon a “successful action to enforce liability” under either a negligent or willful violation. 15 U.S.C. § 1681n(a)(3); 15 U.S.C. § 1681o(a)(2). FACTA provides, in the alternative, that if the pleading alleging a negligent or willful violation was “unsuccessful” and “filed in bad faith or for the purpose of harassment, the court shall award to the prevailing party attorney’s fees reasonable in relation to the work expended in responding to the pleading.”

Banga v. Chevron U.S.A., Inc., 2013 U.S. Dist. LEXIS 2271 *33 (N.D. Cal. 2013) citing Almaraz v. Universal Marine Corp., 472 F.2d 123, 124 (9th Cir. 1972). Thus, the question for liability under 15 U.S.C. § 1681o is: Would a reasonably prudent company in the business of collecting judgment debts within the Ninth Circuit have known, in the relevant time period, that the FCRA prohibited obtaining credit reports to collect judgment debts arising from parking tickets? See, e.g., Banga v. Chevron, 2013 U.S. Dist. LEXIS 2271 *33.

Thus, even assuming Plaintiff’s score did in fact drop, Plaintiff’s negligence claim still fails because Plaintiff has not alleged that she incurred any actual damages as a result. The Court should dismiss Plaintiff’s claims for a negligent violation of the FCRA, 15 U.S.C. § 1681o. 6 6 To the extent Plaintiff attempts to assert a separate claim of False Pretenses under 15 U.S.C. § 1681q (see Compl.

However, there is no cause of action for violation of § 1681o, as this section merely provides remedies for negligent noncompliance with the FCRA. See generally 15 U.S.C. § 1681o. Plaintiff has alleged no facts sufficient to state any cause of action under the FCRA, let alone demonstrate any plausible liability under the FCRA, and as such these remedies are irrelevant.

PageID #: 63 15 omitted). Here, as the Barnette court points out, Congress did not manifest a clear intention that the private right of action available under §§ 1681n and 1681o be eliminated with respect to § 1681m, in its entirety. By contrast, Congress preserved the private cause of action in Section 312(f) of the FACTA.

(Damage claims relating to time lost, loss of enjoyment of life, etc. might predominate and cause the case to become unmanageable.) Here, it has already been recognized that this is exactly what occurs in relation to damages sought under § 1681o. See Chakejian, 256 F.R.D. at 499.

The sections of the FCRA delineating its private cause of action likewise state that “[a]ny person” who violates the FCRA can be liable. 15 U.S.C. § 1681n(a); 15 U.S.C. § 1681o(a). The FCRA defines “person” as including “any individual.”