Celestine v. Capital One et al

Filing 147

ORDER granting 128 Motion to Dismiss for Failure to State a Claim. Closing Case. Motions Terminated: 127 MOTION for Attorney Fees filed by Capital One Bank USA, NA, 138 MOTION for Attorney Fees filed by Capital One, Capital One Bank USA, NA, Capital One Auto Finance, 141 MOTION for Extension of Time to File Response/Reply/Answer as to 136 MOTION for Partial Summary Judgment filed by Capital One, Capital One Bank USA, NA, Capit al One Auto Finance, 128 MOTION TO DISMISS 120 Amended Complaint FOR FAILURE TO STATE A CLAIM filed by Capital One, Capital One Bank USA, NA, Capital One Auto Finance, 136 MOTION for Partial Summary Judgment filed by Joseph Celestine. Signed by Judge Robert N. Scola, Jr on 9/19/2017. (vmz) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Joseph Celestine, Plaintiff,
v.
Capital One et al., Defendants.

)
)
) Civil Action No. 17-20237-Civ-Scola
)
)

Order on Defendants’ Motion to Dismiss
This matter is before the Court on Defendants Capital One, Capital One
Bank USA, N.A., and Capital One Auto Finance’s (“the Defendants”) motion to
dismiss the second amended complaint (ECF No. 128). The Plaintiff filed a
response to the Defendants’ motion (Resp., ECF No. 134), and the Defendants
replied (Rep., ECF No. 137.) For the reasons set forth below, the motion to
dismiss (ECF No. 128) is granted.
1. Background
The second amended complaint (ECF No. 120) (the “Complaint”) is the
Plaintiff’s third attempt to state a claim against the Defendants for violating the
Fair Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”). The Court previously
dismissed the initial complaint, which asserted claims for violation of the FCRA
(Counts 1 and 2), invasion of privacy (Count 3), and negligence (Count 4), for
failure to state a claim. (Order, ECF No. 69.) In the Order, the Court allowed
the Plaintiff to file an amended complaint with respect to the FCRA and
negligence claims. (Id. at 6.) The Plaintiff then filed an amended complaint (ECF
No. 86), asserting four new claims supposedly arising out of the same
underlying conduct. As a result, the Court entered an order striking the
amended complaint and allowing the Plaintiff one final opportunity to amend in
accordance with the Court’s order on the first motion to dismiss. (See ECF No.
117.)
The Plaintiff brings this action against the Defendants alleging that they
“collectively, unlawfully obtained access to Plaintiff’s credit report, without
permissible purposes, [f]orty-[n]ine (49) times.” (Compl. ¶ 30.) The Plaintiff
alleges that on forty-nine different occasions between July 1, 2014, and June
14, 2016, the Defendants accessed his credit score, and that he did not give
authority to any of the Defendants to access his credit report. (Id. ¶ 31.) He
further alleges that he has not been in business with any of the Defendants
since 2008, and that he does not owe a debt to, or have an account with, any of
the Defendants. (Id. ¶¶ 56-58.) The Plaintiff also repeatedly alleges throughout

his complaint that the Defendants accessed his credit report without
permissible purpose, and that such access was criminal (Id. ¶¶ 31, 40, 49-69.)
As a result of these alleged unauthorized and criminal accesses, the
Plaintiff claims that he was denied a $417,000 home loan, was subject to
identity theft, and has suffered from anxiety and emotional distress. (Id. ¶¶ 31,
42-44.)
2. Legal Standard
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement
of the claims” that “will give the defendant fair notice of what the plaintiff's
claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do. Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations and citations
omitted). “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.” Id. Thus, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
When considering a motion to dismiss, the Court must accept all of the
plaintiff's allegations as true in determining whether a plaintiff has stated a
claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69,
73 (1984). However, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556
U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352
(11th Cir. 2006). Even though pro se pleadings are to be liberally construed,
“this leniency does not give a court license to serve as de facto counsel for a
party . . . or to rewrite an otherwise deficient pleading in order to sustain an
action.” GJR Inv., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir.
1998) (internal citations omitted) overruled on other grounds by Randall v. Scott,
610 F.3d 701 (11th Cir. 2010).
3. Analysis
The Plaintiff once again alleges in Counts 1 and 2 that the Defendants
violated the FCRA by negligently or willfully obtaining the Plaintiff’s consumer

report without a permissible purpose and further alleges that such access was
criminal in nature. In the motion to dismiss, the Defendants claim that the
Complaint fails to adhere to federal pleading standards, and that Plaintiff has
not pleaded with factual sufficiency to show that the Defendants lacked a
statutory permissible purpose, that they negligently or willfully violated the
FCRA, or committed any other violation of the FCRA.
(1) Shotgun pleading
A typical shotgun pleading contains several counts, each one
incorporating by reference the allegations of its predecessor, leading to a
situation where most of the counts contain irrelevant factual allegations and
legal conclusions, leaving the court to sift through irrelevancies to determine
the sufficiency of a claim. Strategic Income Fund, LLC v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). “The next most common type, at
least as far as our published opinions on the subject reflect, is a complaint that
does not commit the mortal sin of re-alleging all preceding counts but is guilty
of the venial sin of being replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action.” Weiland v. Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321-22 (11th Cir. 2015). The
Eleventh Circuit has found shotgun pleadings unacceptable because they are
not a “short and plain statement of the claim.” See Magluta v. Samples, 256
F.3d 1282, 1284 (11th Cir. 2001). Moreover, the Eleventh Circuit reaffirmed its
criticism of shotgun pleadings, finding that the “unifying characteristic of all
types of shotgun pleadings is that they fail to one degree or another, and in one
way or another, to give the defendants adequate notice of the claims against
them and the grounds upon which each claim rests.” Weiland, 792 F.3d at
1323.
The Complaint is neither short nor plain, with over 100 numbered
paragraphs and 181 pages of attachments. Moreover, many of the “facts”
alleged are conclusory, vague, and immaterial allegedly criminal violations of
the FCRA that are not connected to either of the Plaintiff’s causes of action. On
this basis alone, the Complaint is a quintessential shotgun pleading and due to
be dismissed. Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir.
2008); see also Strategic Income Fund, 305 F.3d at 1295 n.9-10 (noting the
court’s disdain for shotgun pleadings and their negative effects on trial courts
and the administration of justice).
(2) Permissible purpose
The FCRA provides in relevant part, “A person shall not use or obtain a
consumer report for any purpose unless . . . the consumer report is obtained

for a purpose for which the consumer report is authorized to be furnished
under this section. . . .” 15 U.S.C. § 1681(f). Furthermore, “a consumer
reporting agency may furnish a consumer report . . . [t]o a person which it has
reason to believe intends to use the information” for a number of enumerated
purposes. 15 U.S.C. § 1681b(a)(3). “To state a Fair Credit Reporting Act (FCRA)
claim [arising from the] . . . acquisition of a consumer report, a plaintiff must
prove each of the following: (1) that there was a consumer report; (2) that
defendants used or obtained it; (3) that they did so without a permissible
statutory purpose; and (4) that they acted with the specified culpable mental
state.” Jimenez v. Account Servs., 2017 WL 455206, at *4 (S.D. Fla. Feb. 1,
2017) (Bloom, J.). In the Complaint, the Plaintiff alleges that there was no
permissible purpose for the Defendants accessing the Plaintiff’s credit report,
because he had not conducted business with the Defendants since 2008, he
did not have an account with, or owe the Defendants a debt, and he did not
give the Defendants permission to access his credit report. And although the
Plaintiff alleges in a conclusory manner that the Defendants obtained
“unauthorized criminal access” to his credit information, the Plaintiff fails to
allege any facts to support such a conclusion.
Furthermore, the Plaintiff’s claims of impermissible purpose are belied by
the exhibits attached to the Complaint. Where a pleading’s exhibits contradict
its allegations, the exhibits control. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1206 (11th Cir. 2007). Here, Celestine has attached numerous credit reports,
which he contends show that the Defendants unlawfully accessed his credit
information; but in fact, the exhibits state that the inquiries made were
“Promotional Inquiries” that explicitly “are not seen by anyone but you and do
not affect your score”; “Inquiries Shared Only With You” offering “credit
information about you to those with a permissible purpose”; or “Inquiries that
do not display to companies (do not impact your credit score).” (ECF No. 120-1
at 16, 42-43, 75.) Thus, the Complaint fails to allege a sufficient impermissible
purpose.1
(3) Negligent or Willful Violation
Once again, Celestine states in the Complaint that the Defendants
willfully or negligently violated the FCRA, but even after amending, he makes
only conclusory allegations to support his claim. See Iqbal, 556 U.S. at 678.
To the extent that the Plaintiff’s claims may be premised upon the Defendants
allegedly violating their duty as “furnishers” of information under the FCRA, such a
claim is improper since the FCRA does not provide a private right of action for
tendering false information to a credit reporting agency. Green v. RBS Nat’l Bank, 288
F. App’x 641, 643 (11th Cir. 2008).
1

Again, the allegations amount to nothing more than a recitation of the elements
of his purported claim, and therefore, are not presumed to be true and are
insufficient to state a plausible claim for relief. Id. at 681. As before, “[w]hile
pro se complaints should be liberally construed, they still must allege factual
allegations that raise a right to relief above the speculative level.” Modrall v.
Corker, 654 Fed. App’x 1021, 1022 (11th Cir. 2016). A plaintiff must allege
specific facts that show that a defendant willfully or negligently failed to comply
with the FCRA. See e.g., Rush v. Macy’s New York, 775 F.2d 1554, 1557 (11th
Cir. 1985) (stating that part of the reason the plaintiff’s claim failed was
because he “alleged no facts tending to show that Macy’s ‘willfully’ or
‘negligently’ failed to comply with the FCRA” because he did not contest the
accuracy of the “credit report”). “Despite the leniency afforded pro se plaintiff,
the district court does not have license to rewrite a deficient pleading.” Osahar
v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008) (citing GJR Invs.,
Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)).
(4) Additional claims
To the extent that the Plaintiff attempts to assert any additional claims,
the Court has already warned him, in its order striking the first amended
complaint (ECF No. 117), that any amended pleading would be confined to
addressing the deficiencies noted in its order dismissing the initial complaint.
Thus, any additional claims are improper.
(5) No further amendment
The Court is not obligated to grant further leave to amend where there
has been a “repeated failure to cure deficiencies by amendments previously
allowed,” or “where amendment would be futile.” Anderson v. Vanguard Car
Rental USA, Inc., 304 F. App’x 830, 832 (11th Cir. 2008) (citing Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)); see also Christman v. Walsh,
416 F. App’x 841, 844 (11th Cir. 2011) (“A district court may deny leave to
amend a complaint if it concludes that the proposed amendment would be
futile, meaning that the amended complaint would not survive a motion to
dismiss.”). Upon review, the Court finds that Celestine has not been able to
cure the deficiencies noted by the Court in its prior order, and that further
amendment would be futile. Thus, the Court declines to grant Celestine further
leave to amend.
4. Conclusion
For the above reasons, the Court grants the Defendants’ motion to
dismiss (ECF No. 128). The Second Amended Complaint is dismissed with
prejudice. Any pending motions are denied as moot, and the Clerk of Court is
directed to close this case.

Done and ordered in chambers, at Miami, Florida, on September 19,
2017.
________________________________
Robert N. Scola, Jr.
United States District Judge