Opinion
3:23-CV-731-RJC-DCK
11-18-2024
PAPA G VITALIA, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, TRANS UNION, LLC, and USAA FEDERAL SAVINGS BANK, Defendants.
MEMORANDUM AND RECOMMENDATION
David C. Keesler United States Magistrate Judge
THIS MATTER IS BEFORE THE COURT on “Defendant USAA Federal Savings Bank's Motion For Judgment On The Pleadings” (Document No. 38). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered the motion and the record, the undersigned will recommend that the motion be granted.
BACKGROUND
Papa G Vitalia (“Plaintiff” or “Vitalia”) initiated this action with the filing of a “Complaint” (Document No. 1) on November 3, 2023. The Complaint alleges violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), against TransUnion, LLC (“TransUnion”), Experian Information Solutions, Inc. (“Experian”), Early Warning Services, LLC (“Defendant” or “EWS”), and USAA Federal Savings Bank (“USAA”) (together, “Defendants”). The Complaint contends that Plaintiff attempted to buy a vehicle in 2018, but that credit reporting agencies (“CRAs”), including Defendants TransUnion and Experian, provided inaccurate information to car dealerships. (Document No. 1, pp. 3-4).
Plaintiff attributes the alleged misinformation on his credit reports to “a fraudster named John Daley Strothers using the pseudonym ‘Giovanni Daliente Strassini'” and alleges that John Daley Strothers (“Strothers”) has “used the Plaintiff's identification for accounts stretching back into the 1990s.” (Document No. 1, p. 4). Plaintiff alleges that “[t]he FBI informed the Plaintiff that Strothers was committing fraud in the Plaintiff's name,” and “[t]he FBI eventually arrested Strothers and a jury convicted [Strothers] of crimes related to his pseudonym Strassini on February 14, 2018.” Plaintiff alleges that after Strothers was released on bond, he “disappeared” and “continues to commit fraud in the Plaintiff's name.” Id. at 4.
Plaintiff cites USA v. Strothers, 2018 WL 4550395, (W.D. N.C. Sept. 20, 2018), aff d, United States v. Strothers, 777 Fed.Appx. 695, 696 (4th Cir. 2019).
“Defendant Early Warning Services, LLC's Motion To Dismiss Plaintiff's Complaint” (Document No. 11) was filed on January 2, 2024. The undersigned issued a “Memorandum And Recommendation” (Document No. 45) on August 2, 2024, recommending that the motion to dismiss the claims against Defendant EWS be granted. No objections were filed to the “Memorandum And Recommendation” (Document No. 45), and it was adopted by Judge Conrad on August 23, 2024. (Document No. 48).
Notably, Plaintiff's counsel, M. Shane Perry, filed a “Motion To Withdraw As Counsel” (Document No. 34) on February 9, 2024, that was granted by the Court on February 12, 2024. (Document No. 35). The Court's Order allowing Mr. Perry's withdrawal advised that “Plaintiff shall have new counsel promptly file a Notice Of Appearance; in the alternative, Plaintiff may proceed without counsel (“pro se”) and will be expected to abide by the Federal Rules of Civil Procedure, the Local Rules of this Court, and all Orders of this Court.” (Document No. 35, p. 1). It does not appear that Plaintiff has made any filing with the Court since the withdrawal of counsel; moreover, at least one of the Court's Orders sent to Plaintiff's address has been returned as undeliverable. See (Document No. 44).
Now pending before the Court is “Defendant USAA Federal Savings Bank's Motion For Judgment On The Pleadings” (Document No. 38) filed on March 13, 2024. Plaintiff's response was originally due by March 27, 2024. The pending motion was referred to the undersigned on October 24, 2024. The undersigned issued a “Roseboro Order” (Document No. 49) on October 24, 2024, advising Plaintiff of the right to respond to the pending dispositive motion. To date, pro se Plaintiff has failed to file any response, or to request additional time to do so.
This matter is now ripe for review and a recommendation to the Honorable Robert J. Conrad, Jr.
STANDARD OF REVIEW
Rule 12(c) 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 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.” Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (quoting Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014)). In resolving a motion for judgment on the pleadings, a court must accept the nonmovant's allegations as true and view the facts in the light most favorable to the nonmoving party. Bradley v. Ramsey, 329 F.Supp.2d 617, 622 (W.D. N.C. 2004).
A motion for a judgment on the pleadings is decided under a similar standard as a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), “with the key difference being that on a 12(c) motion, ‘the court is to consider the answer as well as the complaint.'” Bradley, 329 F.Supp.2d at 622 (quoting Continental Cleaning Serv. v. United Parcel Serv., Inc., 1999 WL 1939249 at *1 (M.D. N.C. 1999)); see also Burbach Broadcasting Co. of Delaware v. Elkins Radio, 278 F.3d 401, 405 (4th Cir. 2002). “[D]ocuments attached to the Answer are part of the pleadings for Rule 12(c) purposes, and may be considered without converting a motion for judgment on the pleadings into a motion for summary judgment, only if the documents are central to the Plaintiff's claim and the authenticity is not challenged.” Mendenhall v. Hanesbrands, Inc., 856 F.Supp.2d 717, 724 (M.D. N.C. 2012).
The court may consider materials referenced in, incorporated by reference, or attached to the pleadings, as well as exhibits to a Rule 12(c) motion that are integral to the complaint and authentic. See Fed.R.Civ.P. 10(c); Massey, 759 F.3d at 353; see also Massey, 3:11-CV-477-RJC-DCK, 2012 WL 2992129 (W.D. N.C. July 20, 2012). Courts cannot weigh facts or determine credibility in ruling on motions for judgment on the pleadings, but neither must they credit “allegations that offer only ‘naked assertions devoid of further factual enhancement.'” Lowe v. Johnson, 797 Fed.Appx. 791, 792 (4th Cir. 2020) (quoting Iqbal, 556 U.S. at 678). A court may grant a motion for judgment on the pleadings when no disputed facts remain and the moving party is entitled to judgment as a matter of law. Deutsche Bank Nat'l Tr. Co. Tr. for IndyMac INDX Mortg. Loan Tr. 2006-AR12 v. Fegely, 767 Fed.Appx. 582, 583 (4th Cir. 2019).
DISCUSSION
By the pending “...Motion For Judgment On The Pleadings” filed pursuant to Fed.R.Civ.P. 12(c), Defendant USAA Federal Savings Bank (“USAA”) seeks an Order dismissing Plaintiff's Complaint for failure to state a claim against USAA for which relief can be granted. (Document No. 38, p. 1). In support of its motion, USAA notes that Plaintiff specifically alleges that USAA “violated 15 U.S.C. § 1681s-2(b) for failing to ‘conduct a reasonable investigation into the accuracy of the information' being reported to the CRAs and subsequently failing to correct the reporting after Plaintiff disputed the ‘fraudulent' USAA debt.” (Document No. 39, pp. 1-2) (citing Document No. 1, ¶¶ 90, 104, 106).
The Complaint provides little information about the relationship between Plaintiff and USAA, and/or factual allegations supporting any violations of the FCRA by USAA. (Document No. 1). The Complaint first notes that “USAA is a federal savings bank chartered in Texas” and then later suggests that Plaintiff had some kind of USAA account based on the allegation that “Strothers continually moved money between Plaintiff's Bank of America (Bof A), USAA, and Chase Banks, using the Plaintiff's personal information in an effort to defraud the Plaintiff and the related creditors.” (Document No. 1, pp. 3, 6).
Defendant USAA notes that “Plaintiff does not allege that the account itself with USAA FSB was fraudulently opened.” (Document No. 39, p. 2). Rather, “he simply proclaims that something was ‘inaccurate' or ‘fraudulently' reported to CRAs but does not make a single allegation regarding what the alleged inaccuracy or fraud was, let alone how USAA FSB failed to reasonably investigate it.” (Document No. 39, p. 4). USAA contends that Plaintiff's claims “that certain unspecified information was ‘inaccurate' . . . are legal conclusion couched as factual allegations, and as such, are entitled to no deference.” (Document No. 39, p. 5). Moreover, “Plaintiff has not pled any facts to show that any debts associated with his USAA FSB account were not the result of Plaintiff's own doing.” Id.
As noted above, Plaintiff failed to file a response by the original due date of March 27, 2024, and/or by the Court's sua sponte extension to November 8, 2024. Plaintiff's failure to respond, or to make any filings in this action, suggests he may have abandoned his claims.
In short, Defendant USAA's motion for dismissal is persuasive. The undersigned agrees that the Complaint does not contain “enough facts to state a claim to relief that is plausible on its face” against Defendant USAA. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
To the extent Plaintiff alleges that USAA is a “furnisher of information” that “failed to conduct a reasonable investigation into the accuracy of information related to the disputed trade line, in violation of 15 U.S.C. § 1681s-2(b)(1),” Plaintiff's factual support is, at best, conclusory and vague. See (Document No. 1, pp. 10-11). Plaintiff provides no explanation as to his relationship to USAA, nor does he allege what information USAA reported (or failed to report) to the CRAs, or how any such information was inaccurate. Id. See also (Document No. 39, pp. 2-3) (citing Peoples v. Equifax Info. Sols., No. 3:23-CV-495-MOC-DCK, 2023 WL 6883650, at *2 (W.D. N.C. Oct. 18, 2023) (“The Complaint lacks any concrete factual allegations regarding reporting of any inaccurate credit information.”).
RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that “Defendant USAA Federal Savings Bank's Motion For Judgment On The Pleadings” (Document No. 38) be GRANTED.
TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of the Federal Rules of Civil Procedure, written objections to the proposed findings of fact, conclusions of law, and recommendation contained herein may be filed within fourteen (14) days of service of same. Responses to objections may be filed within fourteen (14) days after service of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum and Recommendation with the District Court constitutes a waiver of the right to de novo review by the District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); United States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008). Moreover, failure to file timely objections will preclude the parties from raising such objections on appeal. Id. “In order ‘to preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.'” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017) (quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)).
IT IS SO RECOMMENDED.