Opinion
Civil Action 2:22-cv-01546-RMG-MHC
03-30-2023
Dameon M. Green, Plaintiff, v. Transunion and Experian, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, initiated this action in this Court by filing a Complaint alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”). ECF No. 1. Each Defendant filed an Answer to the Complaint. ECF Nos. 13 & 32.
The Complaint also names Equifax as a Defendant. However, Equifax was previously dismissed with prejudice from this case. See ECF No. 27 (Stipulation of Dismissal filed September 14, 2022).
Before the Court is a Joint Motion for Judgment on the Pleadings (“Motion”), filed by Defendants on November 23, 2022. ECF No. 35. As Plaintiff is proceeding pro se, the Court entered a Roseboro Order on November 29, 2022, which was mailed to Plaintiff, advising her of the importance of a dispositive motion and of the need to file an adequate response. ECF Nos. 36 and 37. Plaintiff was specifically advised that if she failed to file a properly supported response, Defendants' Motion may be granted, thereby ending her case. Id. On December 13, 2022, Plaintiff filed a document titled “Initial Disclosures Pursuant to Federal Rules of Civil Procedure 26(a).” ECF No. 40. Plaintiff did not otherwise respond to Defendants' Motion. See id.
On February 13, 2023, Plaintiff requested additional time to respond to the Motion for Judgment on the Pleadings and to discovery requests served by TransUnion, stating that she had undergone a medical procedure. ECF No. 45. On February 14, 2023, the Court issued a text order noting that discovery in the case had been stayed, giving Plaintiff until March 1, 2023, to file a Response to Defendants' Motion, and directing the clerk of court to re-send the Roseboro Order to Plaintiff, which the clerk did. ECF Nos. 46 & 47. Notwithstanding this extension of time, Plaintiff has not filed any Response to Defendants' Motion. As the extended deadline has passed, the Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
Although the undersigned recommends that this case be dismissed on its merits, Plaintiff's failure to prosecute this action gives rise to an alternative ground for dismissal. Federal courts have the inherent power to dismiss an action, either sua sponte or on a party's motion, for failure to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-32 (1962) (explaining that the “power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.”); see also Fed.R.Civ.P. 41(b). In considering whether to dismiss a case for failure to prosecute, a district court should consider the following four criteria: “(1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of ‘a drawn out history of deliberately proceeding in a dilatory fashion,' and (4) the existence of a sanction less drastic than dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (quoting Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978)); see Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (upholding dismissal of pro se plaintiff's claims and noting that pro se litigants, like other litigants, “are subject to the time requirements and respect for court orders without which effective judicial administration would be impossible”). In this case, Plaintiff meets the criteria for dismissal under Lopez, as she is personally responsible for proceeding in a dilatory fashion; Defendants are suffering prejudice because of having to expend time and resources on a case in which Plaintiff is unresponsive; and no sanctions other than dismissal appear to exist, as Plaintiff has otherwise failed to respond to Court filings despite a Court order requiring her to do so. See Lopez, 669 F.2d at 920. Accordingly, this case is subject to dismissal for lack of prosecution, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Davis, 588 F.2d at 70; Fed.R.Civ.P. 41(b); see also Coker v. Int'l Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that a plaintiff can abandon claims by failing to address them in response to a dispositive motion); Jones v. Family Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that a claim not addressed in opposition memorandum had been abandoned).
LEGAL STANDARD
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “A motion for judgment on the pleadings is intended to test the legal sufficiency of the complaint and will operate to dispose of claims where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noted facts.” Billioni v. Bryant, C. A. No. 0:14-CV-3060-JMC, 2015 WL4928999, at *1 (D.S.C. 2015) (citations and quotations omitted).
A motion for judgment on the pleadings under Rule 12(c) is considered under a similar standard as Rule 12(b)(6), with the key difference being that on a 12(c) motion, the court considers the answer as well as the complaint. Id.; see Freligh v. Nationwide Mut. Fire Ins. Co., No. 2:21-CV-1114-DCN, 2021 WL 3272214, at *1 (D.S.C. July 30, 2021) (“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.”) (citation and internal quotation marks omitted).
To survive a motion for judgment on the pleadings, the complaint must contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Freligh, 2021 WL 3272214, at *2. A “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Rather, a claim “has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
In considering a motion for judgment on the pleadings, the court's task is limited to determining whether the complaint states a “plausible claim for relief.” Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014); Freligh, 2021 WL 3272214, at *2. In so doing, the court must accept the plaintiff's factual allegations as true and draw all reasonable factual inferences in the plaintiff's favor. Massey, 759 F.3d at 353 (citing E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011)). However, the court is not required to accept the legal conclusions the plaintiff sets forth in the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Freligh, 2021 WL 3272214, at *2 (citing Iqbal, 556 U.S. at 678).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, principles requiring generous construction of pro se complaints do “not require courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Giving liberal construction does not mean that the court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (“Only those questions which are squarely presented to a court may properly be addressed.”). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle v. Gamble, 429 U.S. 97, 106-07 (1976).
DISCUSSION
Upon review of the Complaint and the Answers filed in this action, the undersigned finds that Plaintiff has failed to state a claim upon which relief can be granted.
I. The Allegations in the Complaint
For purposes of evaluating Defendants' Motion, the Court accepts as true the following allegations from the verified Complaint:
Plaintiff, a consumer, sent a written dispute on or about 08/2021 to Defendant, a consumer reporting agency, disputing the completeness and/or accuracy of a tradeline by [M&T BANK] - account number [78005XXXXXXX], [JPMCB CARD] - account number [426684XXXXXX], [NAVY FEDERAL CR UNION] - account number [696450X], [SC FEDERAL CU] - account number [133902XXXWF], [WF EFS] - account number [467467XXXXXXXXXXX], which w[ere] in a consumer report[] concerning Plaintiff prepared, maintained, and published to others by Defendant, and Defendant negligently and/or willfully failed to follow reasonable procedures to assure maximum accuracy of the date in consumer reports concerning Plaintiff, and investigate, delete, or modify the disputed information, and provide a response to Plaintiff within 30 days of receipt of Plaintiff's dispute.... Due to Defendant's conduct, Plaintiff has suffered personal and financial damages.ECF No. 1 at ¶¶ 3-4; see ECF No. 1-3 (signed verification).
II. Plaintiff has failed to state a claim under the FCRA.
“Congress enacted 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) (citing 15 U.S.C. § 1681). “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,” 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.”); Dawkins v. Experian Info. Sols., Inc., No. 622CV00774TMCJDA, 2022 WL 17668425, at *5 (D.S.C. Oct. 19, 2022), report and recommendation adopted, No. 6:22-CV-774-TMC, 2022 WL 17351761 (D.S.C. Dec. 1, 2022).
Plaintiff's Complaint does not identify the specific sections of FCRA that Plaintiff claims Defendants violated. However, it appears that Plaintiff may be asserting claims for violations of 15 U.S.C. §§ 1681e(b) and 1681i.
A. Plaintiff has not alleged facts sufficient to show a violation of 15 U.S.C. § 1681e(b).
Section 1681e(b) provides, “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). To state a claim for a violation of § 1681e(b), Plaintiff must plead facts showing the following: (i) that a particular “consumer report contains inaccurate information” and (ii) that “the reporting agency did not follow reasonable procedures to assure maximum possible accuracy.” Dalton v. Capital Associated Indus., Inc., 257 F.3d 409, 415 (4th Cir. 2001); see Hinton v. Trans Union, LLC, 654 F.Supp.2d 440, 450 (E.D. Va. 2009), aff'd, 382 Fed.Appx. 256 (4th Cir. 2010). “A report is inaccurate when it is patently incorrect or when it is misleading in such a way and to such an extent that it can be expected to have an adverse effect.” Dalton, 257 F.3d at 415.
Defendants argue that Plaintiff's § 1681e(b) claim should be dismissed because Plaintiff merely recites the elements of an FCRA claim without providing factual information to support those elements. The undersigned agrees. See Pugh v. Corelogic Credco, LLC, No. CIV.A. DKC 13-1602, 2013 WL 5655705, at *3 (D. Md. Oct. 16, 2013) (dismissing FCRA claim for failure to state a claim where the plaintiff's complaint “simply recites elements of potential causes of action under the FCRA, but provides no factual and contextual information about Defendant's alleged violation”).
Although Plaintiff's Complaint refers to accounts with M&T Bank, JPMorgan Chase Bank, Navy Federal Credit Union, South Carolina Federal Credit Union, and Wells Fargo, the Complaint fails to specifically allege what information is inaccurate regarding any of these accounts. To establish a violation of § 1681e(b), Plaintiff must plead and prove an inaccuracy in her credit report or credit file. See Dalton, 257 F.3d at 415 (explaining that “a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information”); see also Hinton, 654 F.Supp.2d at 451. Plaintiff's Complaint is devoid of any facts from which to infer what type of inaccuracy appeared in her report. Nor does the Complaint allege facts showing how Defendants failed to follow reasonable procedures that resulted in the reporting of inaccurate information on the accounts. Indeed, Plaintiff's Complaint does not make any reference to Trans Union or Experian's procedures, other than a conclusory recitation of 15 U.S.C. § 1681, nor does it allege how any failure to follow reasonable procedures caused her harm.
Simply put, the Complaint's general and vague allegations are not adequate to show “that the pleader is entitled to relief,” as required by Rule 8(a)(2). Plaintiff's allegations fall short of giving rise to a plausible inference that she has a valid claim that Defendants did not follow reasonable procedures to avoid any possible inaccuracies. See Hinton, 654 F.Supp.2d at 450-51; see also Alston v. Experian Info. Sols., Inc., No. CV PJM 15-3558, 2016 WL 4555056, at *5 (D. Md. Aug. 31, 2016) (granting a motion to dismiss where the plaintiff failed to sufficiently plead that the credit reporting agency did not follow reasonable procedures because the plaintiff's allegations did “little more than repeat the language of the statute”). Accordingly, the undersigned concludes that the Complaint fails to state a claim for a violation of § 1681e(b) of the FCRA.
B. Plaintiff has not alleged facts sufficient to show a violation of 15 U.S.C. § 1681i.
Section 1681i requires consumer reporting agencies to conduct reinvestigations of allegedly inaccurate information contained in credit reports in certain circumstances:
[I]f the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly . . . of such dispute, the agency shall, free of charge, 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 in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer....15 U.S.C. § 1681i(a)(1)(A). “A consumer reporting agency shall provide written notice to a consumer of the results of a reinvestigation under this subsection not later than 5 business days after the completion of the reinvestigation....” Id. § 1681i(a)(6)(A).
“[T]o succeed on claims under § 1681i(a), a plaintiff must make a threshold showing of inaccuracy.” Alston, 2016 WL 5231708, at *10. 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 § 1681i claim fails for the same reasons explained above with respect to her § 1681e(b) inaccurate information claim. The allegations in Plaintiff's Complaint does “little more than repeat the language of the statute,” Alston, 2016 WL 4555056, at *5, and does not provide any factual allegations showing that her “credit file contains inaccurate or incomplete information,” Hinton, 654 F.Supp.2d at 451 (quoting Thomas v. Trans Union, LLC, 197 F.Supp.2d 1233, 1236 (D. Or. 2002)). Because Plaintiff has failed to allege facts that might allow a plausible inference that her credit reports contained any particular inaccurate information, Plaintiff has failed to state a claim for violation of § 1681i of the FCRA. See Hinton, 654 F.Supp.2d at 451 (dismissing § 1681i claim for failure to allege sufficient factual allegations).
In sum, Plaintiff has failed to state a cognizable claim for relief under the FCRA. Accordingly, the undersigned concludes that Defendants' Motion should be granted.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that the Joint Motion for Judgment on the Pleadings (ECF No. 35) be GRANTED and that this action be DISMISSED.
It is so RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).