Jones v. Sky Group USA, LLC

Filing 25

ORDER denying Defendant Sky Group USA, LLC's Motion to Dismiss for Failure to State a Claim 16. By February 26, 2021, Defendant shall answer Plaintiff Brittnee Jones's Complaint. Signed by Judge Kathryn Kimball Mizelle on 2/16/2021. (AS)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRITTNEE JONES,
Plaintiff,
v.

Case No. 8:20-cv-1915-KKM-TGW

SKY GROUP USA, LLC,
Defendant.
____________________________________/
ORDER
This matter is before the Court on Defendant Sky Group USA, LLC’s Motion
to Dismiss (Doc. 16) and Plaintiff Brittnee Jones’s Response in Opposition to the
Motion to Dismiss (Doc. 17). Because Plaintiff states a claim upon which relief may be
granted, the Court DENIES Defendant’s Motion to Dismiss (Doc. 16).
On August 18, 2020, Plaintiff filed a Complaint alleging that Defendant twice
violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681b(f), by requesting
Plaintiff’s credit report from two Consumer Credit Reporting Agencies without a
permissible purpose, (Doc. 1, at 1, 3–5). The FCRA prohibits a person from using or
obtaining a consumer report for any purpose unless “(1) the consumer report is
obtained for a purpose for which the consumer report is authorized to be furnished
under this section; and (2) the purpose is certified in accordance with section 1681e of
this title . . . .” 15 U.S.C. § 1681b(f). Plaintiff specifically alleged that Defendant obtained

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her credit report without her consent and “for marketing purposes,” which is not a
permissible purpose authorized by the FCRA. (Doc. 1, at 5–8 (emphasis in original)).
Plaintiff contends that she “never applied for any account with Sky Group,” but even if
she had, any application with Sky Group for a loan would have been void ab initio because
Defendant engages in “usurious” loans under Florida law. (Doc. 1 at 7–9 (emphasis in
original)).
Defendant filed a Motion to Dismiss in response, arguing that Plaintiff’s
allegations fail to state a claim under Rule 12(b)(6) because they “do not rise above the
speculative level and are no more than conclusions devoid of any meaningful
supporting facts.” (Doc. 16, at 2.). Although difficult to discern, Defendant’s most
pointed critique is that Plaintiff “failed to allege supporting facts that [Defendant] had
an intent to use information without a permissible purpose.” (Id.). Plaintiff filed a
Response in Opposition to the Motion to Dismiss, explaining that her complaint and
its accompanying exhibits presented sufficient factual allegations to state a claim under
Rule 12(b)(6). 1 (Doc. 17, at 3–8.).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient
facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

The Court must assure itself of subject matter jurisdiction regardless if the defendant challenges it.
See Pinson v. JPMorgan Chase Bank, Nat’l Ass’n, 942 F.3d 1200, 1206–07 (11th Cir. 2019). Because
Plaintiff alleged that Defendant’s conduct caused her “actual damages to her credit scores and
diminished her ability to obtain credit elsewhere,” (Doc. 1, at 8), she has sufficiently alleged a concrete,
particularized, and actual injury for purposes of Article III standing, Pinson, 942 F.3d at 1207.

1

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(2009) (citation omitted). A claim is plausible on its face when a plaintiff “pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. When considering the motion, the court accepts
all factual allegations of the complaint as true and construes them in the light most
favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008)
(citation omitted). Courts should limit their “consideration to the well-pleaded factual
allegations, documents central to or referenced in the complaint, and matters judicially
noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citations
omitted).
Plaintiff’s allegations are sufficient to allege violations of the FCRA. See Jimenez
v. Account Servs., 233 F. Supp. 3d 1359, 1365 (S.D. Fla. 2017) (explaining that to state a
FCRA claim, a plaintiff must allege: “(i) that there was a consumer report, (ii) that
defendants used or obtained it, (iii) that they did so without a permissible statutory
purpose, and (iv) that they acted with the specified culpable mental state”) (citation
omitted). Plaintiff alleges that Defendant engages in consumer lending of high-interest
bearing loans and twice obtained Plaintiff’s credit report without her consent to assess
whether she would be a good loan prospect for Defendant’s marketing efforts. (Doc.
1, at 4, 7.) That conduct—which the Court must accept as true at this stage—is not a
permissible purpose under the FCRA. See 15 U.S.C. § 1681b(a). Plaintiff alleges
additional facts and attaches exhibits—including Defendant’s online business
description, which denotes Defendant as a “full service marketing and customer
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acquisition firm”—and disclosures provided to Plaintiff from both Consumer Credit
Reporting Agencies that reflect that Defendant requested her credit report. (Doc. 1, at
Exhibits A–C.). Plaintiff also alleges that Defendant certified to a Consumer Credit
Reporting Agency that Defendant had a permissible purpose to obtain Plaintiff’s credit
report because Plaintiff initiated the request for a credit report, even though Plaintiff
denies she ever made such a request. (Id. at 5).
Defendant argues that Plaintiff’s complaint lacks factual allegations about
Defendant’s “intent” in using the information. (Doc. 16, at 2.). That is inaccurate. To
the extent that Defendant’s argument can be construed as contending that Plaintiff
failed to allege that Defendant willfully or negligently violated the FCRA—the culpable
mental states required by the FCRA—Defendant’s argument fails. See 15 U.S.C.
§ 1681n(a), (b) (imposing civil liability on any person who “willfully fails to comply with
any requirement imposed under this subchapter” and “[a]ny person who obtains a
consumer report from a consumer reporting agency under false pretenses or knowingly
without a permissible purpose”); § 1681o(a) (imposing civil liability on any person “who
is negligent in failing to comply with any requirement imposed under this subchapter”);
Levine v. World Fin. Network Nat. Bank, 554 F.3d 1314, 1318 (11th Cir. 2009) (explaining
that the FCRA provides civil liability for willful and negligent violations). “To prove a
willful violation, a consumer must prove that a consumer reporting agency either
knowingly or recklessly violated the requirements of the Act.” Levine, 554 F.3d at 1318.
To prove a reckless violation, a consumer must establish that the company’s action is
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“a violation under a reasonable reading of the statute’s terms” and shows “that the
company ran a risk of violating the law substantially greater than the risk associated with
a reading that was merely careless.” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 69
(2007); see Levine, 554 F.3d at 1318.
Here, Plaintiff meets that burden through her allegations that Defendant
requested her credit report for “marketing purposes” or, “[e]ven assuming, arguendo, that
[Plaintiff] had applied for a loan directly with [Defendant],” for illegal “usurious”
purposes. (Doc. 1, at 7–9.). These purposes, which are accepted as true at this stage, do
not fall within the permissible purposes listed in 15 U.S.C. § 1981b(a) and do not
constitute an objectively reasonable interpretation of the purposes permitted by the
statute. See Heagerty v. Equifax Information Servs., 447 F. Supp. 3d 1328, 1343–46 (N.D.
Ga. 2020) (explaining that “to prove a reckless violation” of the statute, “a plaintiff must
show that the defendant’s interpretation was objectively unreasonable” and an
interpretation of the FCRA that is contrary to “the plain language of the statute” is
unreasonable) (citation omitted). Indeed, Defendant fails to make any argument that it
obtained Plaintiff’s credit report for a permissible purpose or under a reasonable
interpretation of the statute.
Accepting Plaintiff’s allegations as true and viewing them in the light most
favorable to her, the Court concludes that Plaintiff has adequately pleaded enough facts
to proceed past the motion-to-dismiss stage. See Daniel v. Concord Advice, LLC, No. 8:19cv-2978-WFJ-SPF, 2020 WL 2198204, at *5 (M.D. Fla. May 6, 2020). Accordingly,
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Defendant’s Motion to Dismiss (Doc. 16) is DENIED. By February 26, 2021,
Defendant shall answer the Complaint.
ORDERED in Tampa, Florida, on February 16, 2021.

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