Eller v. Experian Information Solutions, Inc. et al
Filing
195
ORDER Plaintiffs Objections ECF No. 185 to the Magistrate Judges December 8, 2011 Recommendation are OVERRULED and the Recommendation ECF No. 184 is ADOPTED in its entirety; Defendants Motion for Judgment on the Pleadings ECF No. 163 on Plai ntiffs claim for triple damages under the Colorado Consumer Credit Reporting Act (CCCRA) (Sixth Claim) is GRANTED; and Plaintiffs claim for triple damages under the CCCRA is DISMISSED, William J. by Judge William J. Martinez on 3/9/2012.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-0040-WJM-KMT
GERALD HANSEN ELLER,
Plaintiff,
v.
TRANS UNION LLC, a Foreign corporation,
Defendant.
ORDER ADOPTING THE RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the December 8, 2011 Recommendation by
U.S. Magistrate Judge Kathleen M. Tafoya (ECF No. 184) (the “Recommendation”) that
Defendant’s Motion for Judgment on the Pleadings (ECF. No. 163) be granted and that
Plaintiff’s claims for triple damages under the Colorado Consumer Credit Reporting Act
be dismissed. The Recommendation is incorporated herein by reference. See 28
U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
I. BACKGROUND
The facts relevant to a resolution of Defendant’s Motion for Judgment on the
Pleadings are detailed in the Recommendation. Briefly, Plaintiff, proceeding pro se,
brings claims against Defendant Trans Union LLC, a consumer reporting agency, for
negligently and/or willfully distorting Plaintiff’s consumer credit report. (Sec. Am. Compl.
(ECF No. 24.))
Plaintiff’s operative Complaint (the “Second Amended Complaint”) for purposes
of the Motion for Judgment on the Pleadings was filed on September 21, 2009. (Id.)
Plaintiff alleges violations of the federal Fair Credit Reporting Act (“FCRA”) and the
Colorado Consumer Credit Reporting Act (“CCCRA”). (Id.)
Defendant filed its Motion for Judgment on the Pleadings on May 31, 2011.1
(ECF. No. 163) Defendant’s instant Motion requests that the Court, pursuant to Fed. R.
Civ. P. 12(c), dismiss Plaintiff’s claims for triple damages under the CCCRA because
such claims are preempted by the federal FCRA. (Motion (ECF No. 163.)
On December 8, 2011, the Magistrate Judge issued her Recommendation that
Defendant’s Motion for Judgment on the Pleadings be granted and that Plaintiff’s claims
for triple damages under the CCCRA be dismissed. (ECF No. 184.) Plaintiff filed timely
objections to the Recommendation. (Obj. (ECF No. 185)).
For the reasons stated below, Plaintiff’s objections to the Recommendation are
OVERRULED, the Magistrate Judge’s Recommendation is ADOPTED in its entirety,
Defendant’s Motion for Judgment on the Pleadings is GRANTED, and the Court shall
enter judgment in favor of Defendant on Plaintiff’s claim for triple damages under the
CCCRA (Sixth Claim).
II. LEGAL STANDARD
When a Magistrate Judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the District Court Judge
1
Former Defendant Experian Information Solutions, Inc. also filed a Notice of NonOpposition and Joinder to Defendant Tans Unions LLC’s Motion for Judgment on the Pleadings.
(ECF No. 166.) However, Experian Information Solutions, Inc. has now been dismissed from
this case. (ECF No. 186.)
2
“determine de novo any part of the magistrate judge’s [recommendation] that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district
court judge may accept, reject, or modify the recommendation; receive further evidence;
or return the matter to the magistrate judge with instructions.” Id.
Pursuant to Rule 12(c), a party may move for judgment on the pleadings after the
pleadings are closed, but early enough not to delay trial. Fed. R. Civ. P. 12(c). A
motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure is governed by the same standards as a motion to dismiss under Rule
12(b)(6). See Nelson v. State Farm Mut. Auto Ins. Co., 419 F.3d 1117, 1119 (10th Cir.
2005); Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th
Cir. 2000).
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To
survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as
true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the
plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.
2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The court’s
function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for
the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).
The concept of “plausibility” at the dismissal stage refers not to whether the
3
allegations are likely to be true; the court must assume them to be true. See Christy
Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192-93 (10th Cir. 2009).
The question is whether, if the allegations are true, it is plausible and not merely
possible that the plaintiff is entitled to relief under the relevant law. See Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
Further, in considering the Magistrate Judge’s Recommendation in the instant
case, the Court is mindful of Plaintiff’s pro se status, and accordingly, reads his
pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, such liberal construction is intended merely to overlook technical formatting
errors and other defects in Plaintiff’s use of legal terminology and proper English. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve
Plaintiff of the duty to comply with various rules and procedures governing litigants and
counsel or the requirements of the substantive law and, in these regards, the Court will
treat Plaintiff according to the same standard as counsel licensed to practice law before
the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v.
San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
III. ANALYSIS
The Magistrate Judge recommends that Defendant’s Motion for Judgment on the
Pleadings be granted because Plaintiff’s request for three times actual damages in the
event of a willful violation of the CCCRA is expressly preempted by 15 U.S.C. §
1681t(a). (Rec. at 7.) Plaintiff objects to the Recommendation in its entirety and argues
that the CCCRA does not conflict with the FCRA, but only adds to it. (Obj. at 2-3.)
Plaintiff further argues that the Magistrate Judge’s recommendation is premature
4
because damages have not yet been determined or allowed by the Court. (Id.) As
Plaintiff objects to the Recommendation in its entirety, the Court will review the
Recommendation de novo.
A.
Plaintiff’s Objections
1.
Plaintiff’s claim for triple damages under the CCCRA is preempted
by the FCRA
Plaintiff objects to the Recommendation arguing that the CCCRA’s triple
damages provision does not conflict with the FCRA’s damages provision, but only adds
to it. (Obj. at 2-3.)
The Supremacy Clause of the United States Constitution gives Congress the
power to preempt state law. See U.S. Const. art. VI, cl. 2. When federal and state laws
are in conflict, federal law prevails. See Southwestern Bell Wireless, Inc. v. Johnson
County Bd. of County Comm’rs, 199 F.3d 1185, 1193-1194 (10th Cir. 1999). In
determining whether a state statute is preempted, “[t]he purpose of Congress is the
ultimate touchstone.” See Retail Clerks Int’l Ass’n v. Schermerhorn, 375 U.S. 96, 103
(1963). Federal statutes can preempt state statutes either by an express statement of
preemption or by implication. Id. “Congress may indicate pre-emptive intent through a
statute’s express language or through its structure and purpose.” Altria Grp. v. Good,
555 U.S. 70, 76 (2008). Express preemption arises from explicit preemption language
in the statute. See Tarrant Regional Water Dist. v. Herrmann, 656 F.3d 1222, 1241-42
(10th Cir. 2011). Particularly relevant to this case, the Tenth Circuit has held that state
damages provisions can be preempted by federal law. See New Mexico v. General
Elec. Co., 467 F.3d 1223, 1247 (10th Cir. 2006) (state law remedies may be preempted
5
where such remedies conflict with congressional objectives).
The Magistrate Judge recommends that Defendant’s Motion for Judgment on the
Pleadings be granted because Plaintiff’s request for three times actual damages in the
event of a willful violation of the CCCRA is expressly preempted by 15 U.S.C. §
1681t(a). (Rec. at 3-7.) The Court agrees.
Originally, the FCRA provided actual and punitive damages for willful violations.
See 15 U.S.C. § 1681n(1)-(2) (1970). In 1996, however, Congress amended this
section, adding that victims of willful violations could receive “any actual damages
sustained by the consumer as a result of the failure or [statutory] damages of not less
than $100 and not more than $1,000.” Pub L. No. 104-208, Div. A, Title II, Subtitle D,
2412(b), 110 Stat. 3009-446 (1996) (codified at 15 U.S.C. § 1681n(a)(1)(A)).
The FCRA does not allow for three times actual damages in the event of a willful
violation of 15 U.S.C. § 1681e(b), as does the CCCRA § 12-14.3-108. See 15 U.S.C.
§1681t(a). Rather, in the event a willful violation is found, the FCRA allows a consumer
to recover statutory damages between $100 and $1,000, punitive damages as the Court
may allow, and costs and reasonable fees. 15 U.S.C. § 1681n(a). Accordingly, the
inconsistent triple damages provision of the CCCRA is preempted by the FCRA’s
damages provision. See 15 U.S.C. § 1681t(a).
Plaintiff objects to this finding by arguing that the CCCRA damages provision
survives preemption because it does not conflict with the FCRA, but only adds to it.
(Obj. at 2-3.) Plaintiff cites no authority for his contention. (Id.) Congress, in drafting
the FCRA, specifically noted that certain sections of the Act were not intended to
preempt conflicting state laws. Sections 1681n and 1681o were not, however, among
6
those sections so circumscribed. See 15 U.S.C. § 1681t(b). Thus, Congress implicitly
allowed these sections to be among the statutory bases for federal preemption of
conflicting state law contained within the FCRA. Id.
Numerous courts, including other judges in this Court, have found that the FCRA
specifically preempts inconsistent state statues. See Simon v. Directv, Inc., No.
09-cv-00852, 2010 WL 1452853, at *3-4 (D. Colo. March 19, 2010) (plaintiff’s CCCRA
claims against defendant for disclosing his criminal history preempted by the FCRA);
Stich v. BAC Home Loans Servicing, LP, 10-cv-01106, 2011 WL 1135456, at *10 (D.
Colo. Mar. 29, 2011) (finding plaintiff’s claim for injunctive relief preempted by the
FCRA); Jarrett v. Bank of Am., 421 F. Supp. 2d 1350, 1353-55 (D. Kan. 2006) (same).
Moreover, damages provisions in state statutes that are inconsistent with federal law
are readily preempted. See General Elec. Co., 467 F.3d at 1247 (finding that federal
natural resources damages provisions preempt inconsistent state remedies); Margetson
v. United Van Lines, Inc., 785 F. Supp. 917, 921 (D.N.M. 1991) (specific preclusion of
punitive damages under federal law preempts conflicting New Mexico statute).
Because the Court finds that Plaintiff's request for three times actual damages in
the event of a willful violation of the CCCRA is expressly preempted by the FCRA,
Defendant’s Motion for Judgment on the Pleadings is granted, and judgment will be
entered in favor of Defendant on this claim.
2.
Finding that the CCCRA is Preempted by the FCRA is Not Premature
Plaintiff further argues that the Magistrate Judge’s Recommendation is
premature because damages have not yet been determined or allowed by the Court.
(Obj. at 3.)
7
Contrary to Plaintiff’s argument, federal preemption is a question of law and the
Court must decide whether Plaintiff is entitled, as a matter of law, to present his CCCRA
triple damages claim to a jury. See Carroll v. Los Alamos Nat’l Sec., LLC, 407 Fed.
App’x 348, 352 (10th Cir. 2011); Aguayo v. U.S. Bank, 653 F.3d 912, 917 (9th Cir.
2011). As such, the Magistrate Judge’s Recommendation that Defendant’s Motion for
Judgment on the Pleadings be granted is not premature.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Plaintiff’s Objections (ECF No. 185) to the Magistrate Judge’s December 8, 2011
Recommendation are OVERRULED and the Recommendation (ECF No. 184) is
ADOPTED in its entirety;
2.
Defendant’s Motion for Judgment on the Pleadings (ECF No. 163) on Plaintiff’s
claim for triple damages under the Colorado Consumer Credit Reporting Act
(“CCCRA”) (Sixth Claim) is GRANTED; and
3.
Plaintiff’s claim for triple damages under the CCCRA is DISMISSED.
Dated this 9th day of March, 2012.
BY THE COURT:
William J. Martínez
United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?