Scherer v. Credit Bureau Systems Inc et al

Filing 45

AMENDED MEMORANDUM OPINION AND ORDER This matter is before the court on Credit Bureau Systems Inc.'s motion to dismiss 34 . Because Ms. Sherer abandons her state law claims against CBS and the alleged violations of the FDCPA are time-barred under the applicable one-year statute of limitations, the court GRANTS CBS's motion and DISMISSES Counts I, II, III, IV, and VII. Signed by Judge Annemarie Carney Axon on 11/9/18. (SAC )

FILED
2018 Nov-09 PM 05:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KAORI SCHERER,
Plaintiff,
v.
CREDIT BUREAU SYSTEMS,
INC., et al.,
Defendants.

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Case No.: 2:18-cv-00125-ACA

AMENDED MEMORANDUM OPINION AND ORDER
This matter is before the court on Credit Bureau Systems, Inc.’s (“CBS”)
motion to dismiss. (Doc. 34). Plaintiff Kaori Scherer brings this action under the
Fair Credit Reporting Act (“FCRA”), the Fair Debt Collection Practices Act
(“FDCPA”), and various state law theories. (Doc. 32). Ms. Scherer’s claims arise
out of CBS’s alleged reporting of inaccurate information, related to her delinquent
water and sewer services account with the Water Works Board of the City of
Birmingham (“BWWB”). (Id. at 3–5). In its motion to dismiss, CBS argues that
Counts I, II, III, IV, and VII of Ms. Scherer’s amended complaint should be
dismissed because they fail to state a claim under Rule 12(b)(6). (Doc. 34 at 1).
The motion has been fully briefed and the issues are ripe for review. (Doc. 37;
Doc. 39). For the reasons explained below, the court WILL GRANT the motion
and WILL DISMISS Counts I, II, III, IV, and VII against CBS.

I.

STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Rule 12(b)(6) enables a defendant to move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6).
To survive a motion to dismiss, a complaint must “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible
claim for relief requires “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.
A complaint need not contain detailed factual allegations, but a complaint must
contain “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
When resolving a motion to dismiss, the court must “accept[] the allegations
in the complaint as true and constru[e] them in the light most favorable to the

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plaintiff.” Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir.
2015) (quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)).
II.

BACKGROUND
The facts of this case are relatively simple. In the light most favorable to

Ms. Scherer, they are as follows. In April 2014, Ms. Scherer was in the process of
purchasing a home in Vestavia, Alabama. (Doc. 32 at 3). Ms. Scherer established
a water and sewer services account with BWWB to inspect the property prior to
closing. (Id.). This was Ms. Scherer’s first and only account with BWWB as to
this property. (Id.). Upon purchasing the home in June 2014, Ms. Scherer claims
that she continued to pay her monthly bill as each invoice became due. (Id.).
However, sometime after purchasing the home, Ms. Scherer’s account was referred
by BWWB to CBS for collection of an outstanding balance. (Id.).
In June 2016, CBS began collection activities against Ms. Scherer by
reporting the debt to various credit bureaus, including Equifax and Experian
Information Services, Inc. (“Experian”). (Id. at 3–4). Ms. Scherer maintains that
BWWB incorrectly attributed the balance to her account because the account
became delinquent in April 2014—two months before she purchased the property.
(Id. at 2–3). Despite attempting to resolve the dispute with CBS, Equifax, and
Experian, respectively, Ms. Scherer’s efforts ultimately proved unsuccessful. (Id.
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at 3–5). On October 20, 2016, IberiaBank informed Ms. Scherer that the disputed
debt remained on her credit file and negatively affected her ability to secure a
favorable financing offer. (Id. at 4–5). Ms. Scherer claims that as a result of
CBS’s wrongful conduct, “[she] suffered damage[s] including but not limited to
loss of credit, loss of the ability to purchase and benefit from credit as well as
mental and emotional pain and anguish, humiliation and embarrassment.” (Id. at
10).
Unable to resolve the disputed debt, Ms. Scherer filed this action against
Defendants CBS, Equifax, and BWWB on January 24, 2018. (Doc. 1 at 1–2). In
the complaint, Ms. Scherer asserts state law claims including negligent, reckless,
and wanton debt collection activities; and negligent, reckless, and wanton training
and supervision. (Doc. 1 at 5–11). Ms. Scherer also presents claims for violations
of the FDCPA, 15 U.S.C. §§ 1692 et seq., and the FCRA, 15 U.S.C. §§ 1681 et
seq. (Doc. 1 at 9–11). On August 22, 2018, Ms. Scherer amended the complaint
to include additional facts with respect to the same allegations and claims in the
initial complaint, but in all other respects the two are identical. (Doc. 1; Doc. 32).
III.

DISCUSSION
In its motion, CBS argues that Ms. Scherer’s state law claims for negligent

debt collection activities (Count I), reckless and wanton debt collection activities
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(Count II), negligent training and supervision (Count III), and reckless and wanton
training and supervision (Count IV) are due to be dismissed because they are
preempted by the FCRA (Count VII). (Doc. 34 at 6–11). Ms. Scherer agrees and
“concedes to the dismissal of her state law claims against Defendant CBS.” (Doc.
37 at 2–3).

Accordingly, the court finds that Ms. Scherer has abandoned these

claims and WILL DISMISS Counts I–IV of the amended complaint against CBS.
CBS also argues that Ms. Scherer’s claim for violations of the FDCPA
(Count VII) should be dismissed as time-barred. (Doc. 34 at 5–6). The court
agrees. Dismissal based on a statute of limitations defense “may be raised in a
motion to dismiss for failure to state a claim for which relief can be granted under
Fed. R. Civ. P, 12(b)(6), when failure to comply with the statute of limitations is
plain on the face of the complaint.” Foster v. Savannah Comm., 140 Fed. Appx.
905, 907 (11th Cir. 2005) (citing AVCO Corp. v. Precision Air Parts, Inc., 676
F.2d 494, 495 (11th Cir. 1982)). Under the FDCPA, Ms. Scherer’s claim is subject
to a one-year statute of limitations. 15 U.S.C. § 1692k(d) (An action to enforce any
liability under the FDCPA “may be brought . . . within one year from the date on
which the violation occurs.”).
Ms. Scherer alleges that her injury occurred sometime after the BWWB
account became delinquent in April 2014.
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(Doc. 32 at 3–4).

And she

acknowledges that the limitations period ran on January 24, 2018. (Doc. 37 at 6–
7). Therefore, the court finds that any claims arising from: (1) CBS’s reporting of
the alleged debt on Ms. Scherer’s credit file with Equifax and Experian in June
2016 (doc. 32 at 3–4), and (2) the resulting unfavorable financing offers she
received after meeting with IberiaBank on October 20, 2016 (id. at 4–5), are timebarred from the face of the complaint.
Nonetheless, Ms. Scherer maintains that she “may still have a viable claim
for those actions that take place inside of the statute of limitations period.” (Doc.
37 at 7).

Specifically, Ms. Scherer contends that after April 5, 2017, “CBS

purportedly reinvestigated and verified the alleged debt.” (Id. at 6–7). However,
this allegation is not included in the amended complaint and the court will not
consider these facts in ruling on the motion to dismiss. Wilchombe v. TeeVee
Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). Accordingly, the court WILL
GRANT CBS’s motion with respect to Count VII because Ms. Scherer has failed
to allege a plausible claim against CBS under the FDCPA.
IV.

CONCLUSION
Because Ms. Scherer abandons her state law claims against CBS and the

alleged violations of the FDCPA are time-barred under the applicable one-year

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statute of limitations, the court GRANTS CBS’s motion and DISMISSES Counts
I, II, III, IV, and VII.

DONE and ORDERED this November 9, 2018.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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