Opinion
CV-00-1648-ST
January 10, 2000
FINDINGS AND RECOMMENDATION
Plaintiff, appearing pro se, initially filed a one page handwritten Complaint alleging a personal injury claim of some sort against defendant as a result of an automobile accident in June 1980. On January 5, 2001, after this court issued Findings and Recommendation (docket # 4) recommending dismissal of the Complaint for lack of subject matter jurisdiction, plaintiff filed a one page handwritten Amended Complaint (docket # 5). Therefore, this court withdrew its prior Findings and Recommendation (docket # 6) in order to address the allegations in the Amended Complaint.
According to the Civil Cover Sheet for the Amended Complaint, plaintiff claims jurisdiction based solely on diversity of citizenship under 28 U.S.C. § 1332. However, plaintiff states that both he and defendant are citizens of the State of Oregon. Therefore, they are not citizens of different states. Furthermore, plaintiff does not allege that the amount in controversy exceeds the sum of $75,000. Accordingly, no basis for diversity jurisdiction exists.
However, the Amended Complaint attempts to state another basis for jurisdiction by alleging that defendant altered plaintiff's medical records and that this court has "federal jurisdiction based on Identity Theft and Assumption Deterrance [sic] Act of 1998, 18 U.S.C. § 1028, 15 U.S.C. § 1681-1681(u), 1681(n), 1681(o)." Although the Amended Complaint now refers to two federal statutes sufficient to support federal question jurisdiction, plaintiff clearly fails to state a claim under either statute.
The first statute, 18 U.S.C. § 1028, is a criminal statute. Only the United States, through a federal Grand Jury or a United States Attorney, has the authority to file a complaint against individuals for violation of criminal statutes. Besides, plaintiff's claim is for damages and therefore is a civil, not a criminal, complaint.
The second statute, 15 U.S.C. § 1681, is part of the Fair Credit and Reporting Act ("FCRA"). The purpose of the FCRA is "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." 15 U.S.C. § 1681(b). Imposition of civil liability for violations of this Act are governed by two specific sections, §§ 1681n and 1681o. Section 1681n (b) provides that "Any person who obtains a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose shall be liable to the consumer reporting agency . . ." Section 1681o(a) imposes civil liability for "negligent" noncompliance as follows: "Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer . . ." The FCRA imposes requirements only on "consumer reporting agencies" or "users of information" furnished by consumer reporting agencies See 15 U.S.C. § 1681(h) (conditions and form of disclosure to consumers). Section 1681a(f) defines the term "consumer reporting agency" to include only persons or organizations that engage on a regular basis in assembling or evaluating consumer credit information in order to furnish consumer reports to third parties.
Plaintiff does not allege that the defendant is a party engaged in activities covered by the FCRA. Nor does the Court believe that plaintiff could make any colorable allegations to that effect. Plaintiff alleges only that defendant altered some medical records. See Rush v. Macy's New York, Inc., 775 F.2d 1554 (11th Cir 1985) (department store was not a credit reporting agency or user of reported information); Mitchell v. First National Bank of Dozier, 505 F. Supp. 176 (M.D.Ala. 1981) (motion to dismiss FCRA claim granted to party who simply furnished information to credit reporting agencies); Todd v. Associated Credit Bureau Services, Inc., 451 F. Supp. 447 (E.D. Pa. 1977) (retail department store that supplied credit information about consumer's account was not a credit reporting agency under the FCRA).
Plaintiff's remaining claims all rest on state law. Since no independent basis of federal jurisdiction exists, these claims are due to be dismissed.
Although this court can conceive of no amendment to cure the jurisdictional defect, the Complaint should be dismissed without prejudice to allow plaintiff one more opportunity to attempt to state a viable claim against defendant over which this court has subject matter jurisdiction.
RECOMMENDATION
For the reasons set forth above, the Amended Complaint (docket # 5) should be dismissed without prejudice and plaintiff should be ordered to file a First Amended Complaint within a specified time alleging a viable claim over which this court has subject matter jurisdiction.
SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are due January 29, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.