Williams v. Trans Union LLC

Filing 74

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION - The Court ADOPTS the Magistrate Judges report and ACCEPTS his recommendation. Signed by Judge Madeline Hughes Haikala on 1/20/2015. (KEK)

FILED
2015 Jan-20 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

BENNIE WILLIAMS,

}
}
Plaintiff,
}
}
v.
}
}
STUDENT LOAN GUARANTEE }
FOUNDATION OF ARKANSAS,
}
}
Defendant.
}

Case No.: 5:12-cv-02940-JHE

ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
On September 30, 2014, the Magistrate Judge entered a report and
recommendation, in which he recommended that the Court grant in part and deny
in part defendant Student Loan Guarantee Foundation of Arkansas’s (SLGFA)
motion to dismiss. (Doc. 71). SLGFA objects to the report and recommendation.
(Doc. 72). The Clerk randomly selected the undersigned to review the objections
to the report and recommendation.
When a party objects to a magistrate judge’s report and recommendation, the
Court must “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). This means the Court must “give fresh consideration to those

issues to which specific objection has been made.” Jeffrey S. by Ernest S. v. State
Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). The portions of
the report and recommendation to which the petitioner has not objected are
reviewed for clear error. Macort v. Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir.
2006). The Court “may accept, reject, or modify, in whole or part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
SLGFA objects to the Magistrate Judge’s conclusion that venue is proper in
the Northern District of Alabama. (Doc. 72, pp. 1-5). SLGFA submits that the
Magistrate Judge improperly analyzed SLGFA’s residency for purposes of the
general venue statute, 28 U.S.C § 1391(b). (Doc. 72, pp. 2-4). SLGFA also
challenges the Magistrate Judge’s finding that SLGFA did not contest personal
jurisdiction. (Doc. 72, p. 4).
With respect to its second argument, SLGFA claims that it objected to
personal jurisdiction by “specifically contest[ing] [] venue in its motion to dismiss
(document 13, page 2).” (Doc. 72, p. 4). According to SLGFA, because “venue is
so closely intertwined with personal jurisdiction, to contest one would be
tantamount to contesting the other.”

(Doc. 72, pp. 4-5).

Eleventh Circuit

precedent forecloses this argument. See Palmer v. Braun, 376 F.3d 1254, 1259
(11th Cir. 2004) (“Though venue and personal jurisdiction involve some of the
same factors, a motion challenging venue is not effective to preserve the issue of
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personal jurisdiction.”) (internal citations omitted).

By failing to challenge

personal jurisdiction in its initial Federal Rule of Civil Procedure 12(b) motion to
dismiss, SLGFA waived its objection to personal jurisdiction. See Fed. R. Civ. P.
12(h) (“A party waives any defense listed in Rule 12(b)(2)-(5) by: (A) omitting it
from a motion in the circumstances described in Rule 12(g)(2); or (B) by failing to
either: (i) make it by motion under this rule; or (ii) include it in a responsive
pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.”);
Perlman v. Delisfort-Theodule, 451 Fed. Appx. 846, 848 (11th Cir. 2012) (“‘Lack
of personal jurisdiction is a waivable defect, and . . . a defendant waives any
objection to the district court’s jurisdiction over [its] person by not objecting to it
in a responsive pleading or a Fed. R. Civ. P. 12 motion.’”) (quoting Palmer, 376
F.3d at 1259).
Waiver notwithstanding, the Magistrate Judge’s personal jurisdiction
analysis is sound.

SLGFA argues that Mr. Williams “has made no credible

allegation that SLGFA’s alleged intentional conduct was ‘expressly aimed’ at the
Northern District of Alabama. How would SLGFA know when these loans were
made that [Mr. Williams] would end up in Alabama?” (Doc. 72, p. 3).

As the

Magistrate Judge explained, Mr. Williams’s claims do not concern the loan
origination; the claims pertain to “his attempts to dispute the allegedly fraudulent
charges against his credit and the resulting harm to his credit with the people in
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Madison County, Alabama.” (Doc. 71, p. 7) (citing Doc. 56 at 5-7). In light of
Mr. Williams’s allegations concerning SLGFA’s handling of his reports of
fraudulent charges, SLGFA could anticipate that the effects of its actions would be
felt in Alabama.
SLGFA.

Therefore, this Court may assert personal jurisdiction over

Because SLGFA is subject to the Court’s personal jurisdiction, the

Magistrate Judge correctly determined that venue is proper in this district pursuant
to 28 U.S.C. § 1391(b)(1).
SLGFA also challenges the Magistrate Judge’s conclusion that Mr.
Williams’s Fair Credit Reporting Act claim is not time barred. (Doc. 72, p. 5).
Pursuant to the FRCA limitations provision, a plaintiff must bring a FCRA claim
within two years of the discovery or five years of the occurrence of the alleged
statutory violation. 15 U.S.C. § 1681p. “Generally, the existence of an affirmative
defense will not support a motion to dismiss.” Quiller v. Barclays
American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984). Nevertheless, “[a]
Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate ‘if it is
apparent from the face of the complaint that the claim is time-barred.’” Gonsalvez
v. Celebrity Cruises, Inc., 750 F.3d 1195, 1197 (11th Cir. 2013) (quoting La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)).
It is not apparent from the face of Mr. Williams’s complaint that his FCRA
claim is barred by the statute of limitations. Mr. Williams alleges that in or after
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April 2012, defendant TransUnion notified SLGFA of his concerns regarding his
credit report and that SLGFA failed to investigate and correct the accounts. (Doc.
5, ¶¶ 15, 19). Based on these allegations, Mr. Williams contends that SLGFA, as a
furnisher of information under the FCRA, failed to fulfill its duties under 15 U.S.C.
§ 1681s-2(b). As the Magistrate Judge noted, SLGFA’s alleged violations of its
FCRA duties would have occurred after April 11, 2012. (Doc. 71, p. 11). Mr.
Williams filed suit in September 2012, well within the two or five year limitation
period. Therefore, the Court cannot conclude from the face of the complaint that
Mr. Williams’s FCRA claim is time barred.
Based on the Court’s de novo review of the portions of the Magistrate
Judge’s report and recommendation to which SLGFA objected and the Court’s
review for clear error of the portions of the report and recommendation to which
SLGFA did not object, the Court ADOPTS the Magistrate Judge’s report and
ACCEPTS his recommendation.
Accordingly, the Court:
(1)

GRANTS SLGFA’s motion to dismiss as to the plaintiff’s state law

claims. The Court DISMISSES WITH PREJUDICE the plaintiff’s state law
claims as preempted by 15 U.S.C. § 1681t(b)(1)(F);

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(2)

GRANTS SLGFA’s motion to dismiss as to the plaintiff’s claim for

violations of the Fair Debt Collection Practices Act. The court DISMISSES
WITHOUT PREJUDICE the plaintiff’s FDCPA claim;
(3)

GRANTS SLGFA’s motion to dismiss as to the plaintiff’s FCRA

claim to the extent he relies on 15 U.S.C. § 1681e(b); and
(4)

DENIES SLGFA’s motion to dismiss as to the plaintiff’s FCRA

claim based on alleged violations of 15 U.S.C. § 1681s-2(b).
The Court REFERS this matter back to the Magistrate Judge for further
proceedings consistent with this order.
DONE and ORDERED this January 20, 2015.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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