Opinion
C. A. 6:22-cv-00774-TMC-JDA
10-19-2022
Jarell Dawkins, Plaintiff, v. Experian Information Solutions, Inc., Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge.
This matter is before the Court on a motion for judgment on the pleadings filed by Defendant. [Doc. 32.] Plaintiff brings this action pro se under the Fair Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”). [Doc. 1 ¶ 4.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., the undersigned Magistrate Judge is authorized to conduct all pretrial proceedings in cases involving litigation by individuals proceeding pro se and to submit findings and recommendations to the District Court.
Plaintiff commenced this action by filing a Complaint on March 9, 2022. [Doc. 1.] Defendant filed an Answer to the Complaint on April 14, 2022. [Doc. 15.]
On July 18, 2022, Defendant filed a motion for judgment on the pleadings. [Doc. 32.] On July 20, 2022, the Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 37.] On August 15, 2022, Plaintiff filed a response in opposition to the motion. [Doc. 42.] On August 22, 2022, Defendant filed a reply to Plaintiff's response. [Doc. 43.]
Accordingly, the motion is ripe for disposition.
BACKGROUND
As noted, Plaintiff brings this action to assert claims under the FCRA against Defendant. [Doc. 1.] Specifically, and as explained in detail below, Plaintiff alleges that Defendant failed to provide him with the appropriate disclosures under the FCRA and failed to conduct an appropriate investigation to verify and/or delete inaccurate information in Plaintiff's credit file. [Id.] Plaintiff asserts six causes of action and seeks money damages under the FCRA. [ Id. at 7-13.]
For purposes of evaluating Defendant's motion, the Court accepts as true the following allegations from the Complaint. In May 2021, Plaintiff noticed an item on his credit report that appeared to be inaccurate and/or incomplete. [Id. ¶ 16.] On May 6, 2021, Plaintiff sent a written request to Defendant disputing the information reported on his credit report, and he requested full disclosure of his credit file from Defendant. [Id. ¶ 17.] Plaintiff also requested that Defendant conduct an investigation to verify the disputed item. [Id.] Defendant responded to Plaintiff's letter, but the communication was non-responsive to Plaintiff's request and did not include verification of the disputed item. [Id. ¶ 18.] On June 18, 2021, Plaintiff sent Defendant a second request for full disclosure of his credit file and a verification of the disputed item. [Id. ¶ 19.] Defendant again responded to Plaintiff's letter, but the communication was again non-responsive to his request and did not include verification of the disputed item. [Id. ¶ 20.] On October 17, 2021, Plaintiff sent Defendant a third request for full disclosure of his credit file and a verification of the disputed item. [Id. ¶ 21.] Plaintiff also requested a description of Defendant's investigation procedures. [Id.] However, as before, although Defendant responded to Plaintiff's letter, the communication was non-responsive, it did not include a verification of the disputed item, and it did not provide a description of the investigation procedures. [Id. ¶ 22.] Finally, on December 13, 2021, Plaintiff sent Defendant a fourth request for full disclosure of his credit file, a verification of the disputed item, and a description of the investigation procedures. [Id. ¶ 23.] As before, Defendant responded to Plaintiff's letter, but the communication was non-responsive, did not include a verification of the disputed item, and did not provide a description of the investigation procedures. [Id. ¶ 24.]
As such, Plaintiff asserts that “Defendant has willfully and negligently failed to provide [him] with full disclosure of the consumer file . . . as required under 15 U.S.C. § 1681g(a)(1),” has “willfully and negligently failed to provide [him] with a description of Defendant's reinvestigation procedure . . . as required under 15 U.S.C. § 1681i(a)(7),” and has “willfully and negligently failed to provide [him] with evidence of verification, or otherwise delete all information which cannot be verified, as required under 15 U.S.C. § 1681i(a)(5)(A).” [Id. ¶¶ 25-27.] Plaintiff contends that Defendant has ignored and/or refused to cooperate with his reasonable requests or to provide information as required under the FCRA. [Id. ¶ 28.]
Based on these allegations, Plaintiff asserts six causes of action under the FCRA. As to Count 1 and Count 2, Plaintiff contends Defendant violated 15 U.S.C. § 1681g(a)(1) for failing to provide a full disclosure of Plaintiff's consumer credit file. [Id. ¶¶ 29-34, 35-40.] As to Count 3 and Count 4, Plaintiff contends Defendant violated 15 U.S.C. § 1681i(a)(7) for failing to provide a description of its reinvestigation procedures. [Id. ¶¶ 41-46, 47-52.] As to Count 5 and Count 6, Plaintiff contends Defendant violated 15 U.S.C. § 1681i(a)(5)(A) for failing to provide evidence of verification of the disputed items or otherwise delete the information that could not be verified. [ Id. ¶¶ 53-58, 59-64.]
For his relief, “Plaintiff seeks full disclosure of the consumer file from Defendant, a description of each [of] Defendant's reinvestigation procedures, verification of each item identified in Plaintiff's correspondence . . . or deletion of each item which cannot be completely and accurately verified, and damages for [his] injuries.” [Id. at 11-12.] Specifically, Plaintiff seeks damages in the amount of $1,000 for Defendants “willful noncompliance” as to Counts 1, 3, and 5, and in the amount of $1,000 for Defendant's “negligent non-compliance” as to Counts 2, 4, and 6. [Id. at 12.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Judgment on the Pleadings Standard
Rule 12(c) permits a party to move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial ....” Fed.R.Civ.P. 12(c). A “Rule 12(c) motion for judgment on the pleadings is decided under the same standard as a motion to dismiss under Rule 12(b)(6).” Deutsche Bank Nat'l Trust Co. v. I.R.S., 361 Fed.Appx. 527, 529 (4th Cir. 2010); see also Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (“[W]e are mindful that a Rule 12(c) motion tests only the sufficiency of the complaint and does not resolve the merits of the plaintiff's claims or any disputes of fact.” (alteration omitted)). Thus, “the court's task is limited to determining whether the complaint states a ‘plausible claim for relief.'” Freligh v. Nationwide Mut. Fire Ins. Co., No. 2:21-cv-1114-DCN, 2021 WL 3272214, at *2 (D.S.C. July 30, 2021) (citation omitted).
In reviewing a motion for judgment on the pleadings, a court should “construe the facts and reasonable inferences . . . in the light most favorable to the [nonmoving party].” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Thus, “[t]he court must accept all well pleaded factual allegations in the non-moving party's pleadings as true and reject all contravening assertions in the moving party's pleadings as false.” Integon Gen. Ins. Co. v. Bartkowiak ex rel. Bartkowiak, No. 7:09-cv-03045-JMC, 2010 WL 4156471, at *2 (D.S.C. Oct. 19, 2010) (internal quotation marks omitted). A court should grant a motion for judgment on the pleadings “only if the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” Lewis v. Excel Mech., LLC, No. 2:13-cv-281, 2013 WL 4585873, at *2 (D.S.C. Aug. 28, 2013) (internal quotation marks omitted).
“In resolving a motion for judgment on the pleadings, the court may consider only the pleadings and exhibits attached thereto, relevant facts obtained from the public record, and exhibits to the motion that are ‘integral to the complaint and authentic.'” Freligh, 2021 WL 3272214, at *1.
DISCUSSION
Defendant argues that it is entitled to judgment as to all claims asserted in the Complaint. [Doc. 32-1.] Specifically, Defendant contends that Plaintiff has failed to state a plausible claim for relief under the FCRA. [ Id. at 4-10.]
As noted, Plaintiff filed a response in opposition to Defendant's motion. [Doc. 42.] Plaintiff's two-page response simply argues that Defendant's motion is premature as discovery is ongoing and the motion “potentially deprives Plaintiff of his right to due process.” [Id. at 1.] As such, Plaintiff asks that the Court “deny Defendant's motion for judgment on the pleadings on the grounds that discovery is ongoing and has not yet been completed.” [Id. at 2.] In its reply, Defendant notes that Plaintiff has failed to address any of the arguments in Defendant's motion and that “the status of discovery is irrelevant.” [Doc. 43 at 2.] The Court agrees. A motion for judgment on the pleadings relies on the facts in the parties' pleadings rather than on the facts and record developed during discovery. See, e.g., Middleton v. Andino, 474 F.Supp.3d 768, 774 (D.S.C. 2020) (“[I]n a motion for judgment on the pleadings, the court only ‘consider[s] the answer as well as the complaint' and ‘documents incorporated by reference in the pleadings.'”); Eagle Nation, Inc. v. Mkt. Force, Inc., 180 F.Supp.2d 752, 754 (E.D. N.C. 2001) (explaining that, on a motion under Rule 12(c), “the court cannot consider materials outside the pleadings without converting the motion to one for summary judgment” but may “consider the documents and exhibits attached to and incorporated into the pleadings themselves”). Additionally, as is common in cases where a motion for judgment on the pleadings has been filed, the undersigned granted Defendant's motion to stay by Order dated July 19, 2022, which stayed all discovery and other scheduling order deadlines until the Court rules on the pending motion. [Doc. 34]; see also Rowe v. Citibank, No. 5:13-cv-21369, 2015 WL 1781559, at *1-2 (S.D. W.Va. Apr. 17, 2015) (discussing factors applicable to a motion to stay discovery).
Standing
As an initial matter, the undersigned concludes that Plaintiff lacks Article III standing to bring his claims against Defendant because he has failed to satisfy the injury-in-fact requirement.
Although Defendant does not appear to specifically argue that Plaintiff's lack of standing is an independent ground for dismissal of the Complaint, it does assert that “Plaintiff has not and cannot allege here the required concrete injury from a purported failure to provide his ‘full consumer file disclosure.'” [Doc. 32-1 at 7.] Further, the Court is permitted to raise the issue of standing sua sponte and to dismiss this action on that basis alone. See, e.g., Evans v. Am. Collection Enter., No. JKB-22-cv-0746, 2022 WL 3923394, at *4 (D. Md. Aug. 31, 2022) (evaluating sua sponte the plaintiff's standing to sue Experian under the FCRA).
Article III of the United States Constitution limits the jurisdiction of federal courts to deciding only actual “cases” and “controversies.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). The doctrine of standing sets apart those “cases” and “controversies” that are of the justiciable sort referenced in Article III. Id. at 560. “[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). “To establish injury in fact, a plaintiff must show that he . . . suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted). For an injury to be concrete, the Supreme Court has “emphasized repeatedly” that it “must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is distinct and palpable, as opposed to merely abstract.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (internal quotation marks and citation omitted).
Here, Plaintiff has failed to allege facts to show a concrete injury to confer standing. As to his injuries, Plaintiff alleges as follows in the Complaint:
Defendant is injuring Plaintiff by its failure to be responsive to Plaintiff's reasonable requests and ignoring federal requirements to ensure maximum accuracy and completeness of information reported concerning Plaintiff. As a consequence of Defendant's willful negligence, Plaintiff is suffering from several disorders including emotional distress, mental anguish, anger, sadness, frustration, anxiety, insomnia, and depression.[Doc. 1 ¶ 6.]
Based on these allegations, the undersigned concludes that Plaintiff's purported injury is premised on a bare procedural violation of the FCRA. However, it is well settled that such “a statutory violation alone is not sufficient to confer standing” because “a statutory violation does not necessarily cause concrete harm.” Brown v. Alltran Fin., LP, No. 1:21-cv-595, 2022 WL 377001, at *4 (M.D. N.C. Feb. 8, 2022). Thus, a plaintiff does not “automatically [satisfy] the injury-in-fact requirement whenever a statute grants a person a statutory right” and allows them to vindicate that right. Spokeo, 578 U.S. at 341. A “bare procedural violation, divorced from any concrete harm” does not necessarily satisfy the injury-in-fact requirement. Id. Instead, a court must look to whether procedural violations “entail a degree of risk sufficient to meet the concreteness requirement.” Id. at 343.
Here, Plaintiff has not identified any harm arising from Defendant's purported violation of the FCRA. See Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 347 (4th Cir. 2017) (explaining that the plaintiff “was not adversely affected by the alleged error on his credit report” and that he “suffered no real harm, let alone the harm Congress sought to prevent in enacting the FCRA”). And, as to Plaintiff's purported emotional and mental injuries, courts have routinely rejected such injuries when they are not rooted in any specific harm and are presented in such a cursory manner. “Mere boilerplate claims with no detail do not suffice to satisfy the requirements for injury-in-fact.” Reimer v. LexisNexis Risk Sols., Inc., No. 3:22-cv-153-DJN, 2022 WL 4227231, at *8 (E.D. Va. Sept. 13, 2022) (summarizing cases finding no concrete harm when the plaintiffs made conclusory allegations about mental and emotional injuries). “The Fourth Circuit has found that emotional damages are recoverable, but only when the plaintiff can show in some detail the manner in which the distress manifested itself, as conclusory statements will not suffice.” Id. at *9 (citing Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 240 (4th Cir. 2009)).
Here, Plaintiff's “allegations focus on emotional injury, yet free-standing ‘emotional harm, no matter how deeply felt, cannot suffice for injury-in-fact for standing purposes.' Instead, ‘a plaintiff can only establish an Article III injury in fact based on emotional harm if that alleged harm stems from the infringement of some legally protected . . . or judicially cognizable . . . interest that is either recognized at common law or specifically recognized as such by the Congress.'” Magruder v. Cap. One, Nat'l Ass'n, 540 F.Supp.3d 1, 8 (D.D.C. 2021) (citation omitted). But, the “[C]omplaint does not identify a single expense that [Plaintiff] incurred, a single dollar that he lost, or a single credit opportunity that he was denied.” Id. Thus, because Plaintiff has not alleged tangible harm such as economic damages or loss of credit, his “alleged emotional distress does not allege concrete harm for an injury-in-fact or standing.” Ergas v. Eastpoint Recovery Grp., Inc., No. 20-cv-333S, 2022 WL 1471348, at *11 (W.D.N.Y. May 10, 2022), modified on reconsideration, 2022 WL 2128029 (W.D.N.Y. June 14, 2022).
Failure to State a Claim
Even if Plaintiff's allegations are sufficient to satisfy the injury-in-fact requirement to invoke Article III standing, the Complaint nevertheless fails to state a claim for relief that is plausible.
FCRA Generally
“Congress enacted [the] FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007); see also 15 U.S.C. § 1681(a)(4) (“There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy.”). “The FCRA is a comprehensive statutory scheme designed to regulate and promote fairness in the consumer reporting industry.” Evans v. Trans Union LLC, No. 2:10-cv-00945, 2011 WL 672061, at *2 (S.D. W.Va. Feb. 14, 2011). To achieve that end, “[t]he FCRA imposes various obligations on . . . consumer reporting agencies (CRAs),” id. at *3, and “provides a private right of action for consumers against entities or persons that violate the statute,” Jones v. Equifax, Inc., No. 3:14-cv-678, 2015 WL 5092514, at *3 (E.D. Va. Aug. 27, 2015); see also TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2201 (2021) (“The [FCRA] creates a cause of action for consumers to sue and recover damages for certain violations.”).
Claims under 15 U.S.C. § 1681g(a)(1)
Counts 1 and 2 of the Complaint assert claims under 15 U.S.C. § 1681g(a)(1) purportedly for Defendant's failure to provide a full disclosure of Plaintiff's consumer credit file upon request. [Doc. 1 ¶¶ 29-40.]
“The FCRA requires, among other obligations, that [consumer reporting agencies (“CRAs”)] ‘clearly and accurately disclose' to a requesting consumer ‘[a]ll information in the consumer's file at the time of the request.'” Gavin v. Trans Union LLC, No. 7:18-cv-00523-DCC-JDA, 2018 WL 7824443, at *3 (D.S.C. Sept. 24, 2018) (quoting 15 U.S.C. § 1681g(a)(1)), Report and Recommendation adopted as modified by 2019 WL 1330795 (D.S.C. Mar. 25, 2019); see also Ross v. F.D.I.C., 625 F.3d 808, 813 (4th Cir. 2010) (“Section 1681g requires CRAs to disclose to consumers the information in their credit file upon request.”). The term “file” refers to “all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored.” 15 U.S.C. § 1681a(g). “The purpose of § 1681g . . . is to enable consumers to obtain information in order to dispute any potential inaccuracies in the file so that inaccurate information is not sent to third parties.” Selvam v. Experian Info. Sols., Inc., 651 Fed.Appx. 29, 33 (2d Cir. 2016).
Here, Plaintiff asserts that “[o]n numerous occasions, [he] sent Defendant a request for full disclosure of the consumer file” but that “[f]ollowing each of [his] requests for full disclosure of the consumer's file, Defendant failed to be responsive, or otherwise ignored Plaintiff's request.” [Doc. 1 ¶¶ 32-33.] These cursory allegations fail to state a claim for relief. Significantly, Plaintiff does not specify what information or part of his consumer credit file was not disclosed by Defendant. See Davis v. Equifax Credit Info. Servs., Inc., No. 5:11-cv-3086-MBS, 2012 WL 1192050, at *2 (D.S.C. Apr. 10, 2012) (explaining “[l]egal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pleaded facts” and noting that the plaintiff failed to allege with specificity the reporting errors of the defendant).
Additionally, Plaintiff was provided with his full consumer credit file each time he requested it. As noted, Plaintiff sent letters to Defendant on four occasions-May 6, 2021, June 18, 2021, October 17, 2021, and December 13, 2021-requesting his consumer credit file. [Doc. 1-1.] In response to each request, Defendant sent Plaintiff a copy of his consumer credit file. [Doc. 32-2 (credit reports dated May 20, 2021, June 28, 2021, October 25, 2021, and January 3, 2022).] However, Plaintiff fails to present allegations to show that any of these four reports generated by Defendant and provided to Plaintiff do not constitute his full consumer credit file.
“Taking the facts alleged in the [C]omplaint as true, the [C]ourt is satisfied that [D]efendant discharged its obligation under 15 U.S.C. § 1681g(a)(1).” Danehy v. Experian Info. Sol., Inc., No. 5:18-cv-17-FL, 2018 WL 4623647, at *3 (E.D. N.C. Sept. 26, 2018). Four times Plaintiff requested that Defendant produce his full consumer credit file, and, after receiving each request, Defendant sent Plaintiff his credit report. The Court finds that Plaintiff's cursory allegations, even taken as true and construed in a light most favorable to him, fail to show that Defendant violated its disclosure requirements pursuant to § 1681g(a)(1) of the FCRA. See, e.g., Jackson v. Warning, No. PJM-15-cv-1233, 2016 WL 7228866, at *9 (D. Md. Dec. 13, 2016) (finding allegations similar to those asserted here failed to state a claim under § 1681g). Indeed, Plaintiff's cursory allegations are precisely the type of allegations that courts have routinely dismissed as “nothing beyond speculation as to the ‘mere possibility' of a violation of the FCRA, without presenting ‘enough fact to raise a reasonable expectation that discovery will reveal' unlawful conduct.” Hinkle v. CBE Grp., No. 3:11-cv-091, 2012 WL 681468, at *3 (S.D. Ga. Feb. 3, 2012), Report and Recommendation adopted by 2012 WL 676267 (S.D. Ga. Feb. 29, 2012); see also Joseph v. Experian Info. Sols., Inc., No. 1:18-cv-03443-WMR-RGV, 2019 WL 5458009, at *8 (N.D.Ga. July 3, 2019) (collecting cases), Report and Recommendation adopted by 2019 WL 5460659 (N.D.Ga. Aug. 13, 2019). As such, Plaintiff has failed to state a claim for relief as to Counts 1 and 2.
Claims under 15 U.S.C. § 1681i(a)(7)
Counts 3 and 4 of the Complaint assert claims under 15 U.S.C. § 1681i(a)(7) purportedly for Defendant's failure to provide a description of its reinvestigation procedures. [Doc. 1 ¶¶ 41-52.]
“Section 1681i of the FCRA outlines the procedure to be followed in cases in which consumers dispute the completeness or accuracy of information contained in their file.” Spitzer v. Trans Union LLC, 140 F.Supp.2d 562, 565 (E.D. N.C. 2000), aff'd, 3 Fed.Appx. 54 (4th Cir. 2001). Specifically, § 1681i(a) provides that,
if the completeness or accuracy of any item of information contained in consumer's file . . . is disputed by a consumer and the consumer notifies the agency directly . . . of such dispute, the agency shall . . . 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 . . .15 U.S.C. § 1681i(a)(1)(A). “If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute.” 15 U.S.C. § 1681i(b). “Whenever a statement of dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer's statement or a clear and accurate codification or summary thereof.” 15 U.S.C. § 1681i(c). Further, the statute provides that “[a] consumer reporting agency shall provide to a consumer a description [of the procedure used to determine the accuracy and completeness of the information in a consumer file] by not later than 15 days after receiving a request from the consumer for that description.” 15 U.S.C. § 1681i(a)(7).
“[T]o succeed on claims under § 1681i(a), a plaintiff must make a threshold showing of inaccuracy.” Alston v. Equifax Info. Servs., LLC, No. TDC-13-cv-1230, 2016 WL 5231708, at *10 (D. Md. Sept. 21, 2016). In other words, “a plaintiff alleging a violation of § 1681i must plead that ‘a reasonable reinvestigation by the [credit reporting agency] could have uncovered [an] inaccuracy.'” Pawlowski v. Experian Info. Sols., Inc., No. 1:20-cv-1464-LMB-JFA, 2021 WL 2930076, at *4 (E.D. Va. July 12, 2021) (citation omitted); see also Denton v. JPMorgan Chase & Co., No. 4:19-cv-114, 2020 WL 5909153, at *12 n.22 (E.D. Va. Oct. 6, 2020) (“In order to make out a § 1681i failure to reinvestigate claim, a plaintiff must first show that his credit file contains inaccurate or incomplete information.” (internal quotation marks omitted)).
Here, Plaintiff's allegations fail to state a claim under § 1681i(a) because he has not alleged facts to establish the threshold requirement of any inaccuracy in his credit file. Plaintiff makes the following allegations pertinent to the Court's analysis. In May 2021, Plaintiff “noticed that an item reported by Defendant” on his credit report “appeared to be inaccurate and/or incomplete.” [Doc. 1 ¶ 16.] Thereafter, Plaintiff sent four written requests to Defendant disputing the information reported on his credit report, requesting a full disclosure of his consumer credit file, requesting that Defendant conduct an investigation, requesting that Defendant verify “a certain item,” and requesting that Defendant provide a description of its investigation procedures. [Id. ¶¶ 17, 19, 21, 23.] Defendant responded in writing to each of Plaintiff's written requests, but those communications were non-responsive to Plaintiff's requests. [Id. ¶¶ 18, 20, 22, 24.] As such, Plaintiff contends, Defendant has failed to provide Plaintiff with a full disclosure of his credit file, has failed to provide Plaintiff with a description of its reinvestigation procedures, and has failed to provide verification of information in Plaintiff's credit file. [Id. ¶¶ 25, 26, 27.]
Despite these allegations, Plaintiff has not identified in his Complaint any inaccuracy in his credit file. The only allegations addressing the purported inaccuracy in his credit file are Plaintiff's assertions that he “noticed that an item . . . appeared to be inaccurate and/or incomplete” and that he requested that Defendant verify “a certain item.” [Doc. 1 ¶¶ 16, 17, 19, 21, 23.] But Plaintiff does not identify the inaccurate item or the item that he requested Defendant verify. Indeed, the Complaint is devoid of any information whatsoever as to any inaccuracy in his credit file.
The only information regarding a purported inaccuracy that the Court can find is in the letters referenced by Plaintiff in his Complaint and which are attached as an exhibit to the Complaint. Specifically, Plaintiff has attached the four letters that he sent to Defendant, dated May 6, 2021, June 18, 2021, October 17, 2021, and December 13, 2021. [Doc. 1-1.] The only reference to an inaccuracy in those letters is Plaintiff's request that Defendant verify a Bank of America account. [Id.] However, the letters do not contain any explanation as to what information with regard to the Bank of America account is inaccurate, and Plaintiff never even mentions the Bank of America account in his Complaint.
As such, Plaintiff's “conclusory assertion, appearing only in correspondence to [Defendant] and not reiterated in the pleadings, does not suffice as a plausible allegation of inaccuracy.” Walker v. Trans Union, LLC, No. PWG-16-cv-3926, 2017 WL 4786625, at *5 (D. Md. Oct. 24, 2017). Thus, “[g]iven that [P]laintiff has failed to adduce facts that might allow a plausible inference that his credit reports contained any particular inaccurate information, [P]laintiff's § 1681i claim fails.” Hinton v. Trans Union, LLC, 654 F.Supp.2d 440, 451 (E.D. Va. 2009) (explaining that a consumer who brings a § 1681i claim “must first show that his ‘credit file contains inaccurate or incomplete information'”), aff'd, 382 Fed.Appx. 256 (4th Cir. 2010). Because “Plaintiff has provided only threadbare, self-serving assertions” rather than alleging facts “to demonstrate the report was inaccurate,” he has failed to state a claim under § 1681i. Letren v. Trans Union, LLC, No. PX 15-cv-3361, 2017 WL 445237, at *11 (D. Md. Feb. 2, 2017).
Claims under 15 U.S.C. § 1681i(a)(5)(A)
Counts 5 and 6 of the Complaint assert claims under 15 U.S.C. § 1681i(a)(5)(A) purportedly for Defendant's failure to provide evidence of verification of the disputed items in Plaintiff's consumer credit file. [Doc. 1 ¶¶ 53-64.]
Counts 5 and 6 suffer the same defect as Counts 3 and 4-Plaintiff has not identified any inaccuracy in his consumer credit file. Such a pleading failure is fatal to Plaintiff's claims for the reasons discussed in detail above. See, e.g., Walker, 2017 WL 4786625, at *5 (explaining that a plaintiff “must allege that his file contained inaccurate information” to state a claim under any provision of § 1681i(a)); Santos v. Experian Info. Sols., Inc., No. 21-cv-117-ECT-ECW, 2021 WL 4034801, at *3 (D. Minn. Sept. 3, 2021) (“[T]o maintain claims under §§ 1681i(a)(1)(A) and 1681i(a)(5)(A), [a plaintiff] must plausibly allege that the disputed items of information contained in [his] file are inaccurate.”). Accordingly, Plaintiff has failed to state a claim regarding Counts 5 and 6.
In sum, Plaintiff has failed to state a cognizable claim for relief and Defendant's motion for judgment on the pleadings therefore should be granted.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Plaintiff's Complaint [Doc. 1] be DISMISSED for lack of subject-matter jurisdiction or, alternatively, that Defendant's motion for judgment on the pleadings [Doc. 32] be GRANTED.
IT IS SO RECOMMENDED.