Celestine v. Capital One et al

Filing 69

Order on Defendants Motions to Dismiss granting 23 Motion to Dismiss for Failure to State a Claim; granting 30 Motion to Dismiss for Failure to State a Claim. Amended Complaint due by 7/14/2017. Signed by Judge Robert N. Scola, Jr on 6/30/2017. (lan)

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
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)

Order on Defendants’ Motions to Dismiss
This matter is before the Court on Defendants Capital One and Capital
One Bank USA, N.A.’s motion to dismiss (ECF No. 23) and Capital One Auto
Finance’s motion to dismiss (ECF No. 30.) The Plaintiff filed a motion to strike
the Defendants’ motions to dismiss (ECF No. 34), which the Court has
construed as a response to the Defendants’ motions to dismiss (Order, ECF No.
35). Capital One, Capital One Auto Finance, and Capital One Bank USA, NA
(“the Defendants”) replied (Resps., ECF Nos. 40 and 41.) The Defendants’
motions to dismiss are virtually identical and as such, the Court addresses
both motions in this order. For the reasons set forth below, the motions to
dismiss (ECF Nos. 23 and 30) are granted.
1. Background
The Plaintiff brings this action against the Defendants alleging that they
“initiated unauthorized inquiries of plaintiff[’]s credit reports from Experian,
Equifax, and Transunion without permissible purpose.” (Compl. ¶ 19.) The
Plaintiff alleges that on eighty-six different occasions between February 7,
2013, and May 3, 2016, the Defendants accessed his credit score. (Id.) The
Plaintiff states that he did not give authority to any of the Defendants to access
his credit report. (Id. ¶ 22.) He further alleges that he has not been in business
with any of the Defendants since 2008. (Id. Ex. 4 ¶ 4.) The Plaintiff also
repeatedly alleges throughout his complaint that the Defendants accessed his
credit report “without permissible purpose.” (Id. ¶ 19–22, 38, 42.)
As a result of these alleged unauthorized accesses, the Plaintiff claims
that he was denied a $350,000 home loan, was subject to identity theft, and
has suffered from anxiety and emotional distress. (Id. ¶¶ 22, 32, 34.)
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). Further, “a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by
lawyers[.]”Erikson v. Pardus, 551 U.S. 89, 94 (2007).
3. Analysis
The Complaint contains four counts: Counts 1 and 2 alleging violations
of the Fair Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”); Count 3 for
invasion of privacy; and Count 4 for negligence and wanton and willful
conduct. (Compl. ¶¶ 35–52.) The Defendants move to dismiss all counts. The
Defendants allege that the Plaintiff: (1) has not pleaded his claims with factual
sufficiency; (2) has not stated a claim for invasion of privacy; (3) has not stated
a claim for negligence; and (4) has stated a cause of action which is not
recognized under Florida Law. (ECF. Nos. 23 and 30.)
A. Counts 1 and 2: Fair Credit Reporting Act Claims
The Plaintiff alleges in Counts 1 and 2 that the Defendants violated the
FCRA by negligently or willfully obtaining the Plaintiffs’ consumer report
without a permissible purpose. (Compl. ¶¶ 38, 42.) In their motions to dismiss,
the Defendants claim that the Plaintiff has not pleaded with factual sufficiency
to show that the Defendants negligently or willfully violated the FCRA or that
they lacked a statutory permissible purpose. (Mots. to Dismiss at 6-7, ECF
Nos. 23 and 30.) Capital One and Capital One Bank further allege that the
Plaintiff’s FCRA claim is time-barred. (Mot. to Dismiss at 9.)

(1) Negligent or Willful Violation
The Plaintiff stated in his complaint that the Defendants negligently or
willfully violated the FCRA but has only made conclusory allegations to support
his claim. See Iqbal, 556 U.S. at 678. Further, “[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 (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”).
(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). In order to show that there was no
permissible purpose for the Defendants accessing the Plaintiff’s credit report,
the Plaintiff alleges that he had not conducted business with the Defendants
since 2008 and he did not give the Defendants permission to access his credit
report. (Compl. ¶¶ 4, 22.)1 The Plaintiff is correct to note in his response,
“[t]here is a difference in opinion on whether the ambiguous language in FCRA
contains an absolute prohibition against the sale of credit reports to former
creditors whose accounts are closed and paid in full.” Levine v. World Financial
Network Nat. Bank, 437 F.3d 1118, 1122 (11th. Cir. 2006). However, as noted,
the Plaintiff did not allege in his complaint that he did not owe debt to any of
the Defendants when they accessed his credit report. Further, this Court need
not decide whether the Defendants accessed the Plaintiff’s credit report with a
permissible purpose because the Plaintiff has failed to show the Defendants
had the necessary state of mind. See Jimenez v. Account Serv.s, 2017 WL
455206, at *4 (S.D. Fla. Feb. 1, 2017) (Bloom, J.) (‘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”).

1

  The Court notes that in his response, the Plaintiff further alleges that he did not have debt
with any of the Defendants. However, on a motion to dismiss, the court only considers the facts
as pleaded in the complaint. See Iqbal, 556 U.S. at 662.  

(3) Statue of Limitations
The FCRA statue of limitations bars claims arising after “the earlier
of . . . 2 years after the date of discovery by the plaintiff of the violation that is
the basis for such liability; or 5 years after the date on which the violation that
is the basis for such liability occurs.” 15 U.S.C. § 1681(p). The Defendants
state that based on the credit reports attached to the complaint, the Plaintiff
requested his credit report on June 27, 2014. Thus, as of that date, the
Plaintiff had knowledge of credit inquires made by the Defendants between
February 7, 2013, and June 27, 2014. The statute of limitations on those
credit inquiries ran as of June 27, 2016, long before the Plaintiff filed this suit
on January 18, 2017. (Mot. to Dismiss at 9.) The Court finds that the statute
of limitations bars the inquiries made before June, 27, 2014. As such, the
Court strikes allegations referencing the inquiries made before June 27, 2014,
from the complaint. The rest of Defendants’ inquiries can be used as support
and are not barred by the statute of limitations.2 Therefore, only part of the
Plaintiff’s FCRA claims are barred by the statute of limitations.
Accordingly, the Court dismisses without prejudice the Plaintiff’s FCRA
claims, Count 1 and Count 2, because the Plaintiff has failed to allege
sufficient facts to state claims for either willful or negligent noncompliance with
the FCRA. Further, the Court strikes from the complaint any allegations
pertaining to the Defendants’ conduct on or before June 27, 2014.
B. Count 3: Invasion of Privacy
In his complaint the Plaintiff claims that by “unlawfully attempting to
access [the Plaintiff’s] private financial information” the Defendants “interfered,
physically or otherwise, with the solitude, seclusion and or private concerns or
affairs” of the Plaintiff. (Compl. ¶ 46.) In their motions to dismiss, the
Defendants argue that the Plaintiff’s claim fails because the Defendants did not
intrude into a “place,” and further that their actions were not sufficiently
outrageous. (Mot. at 10–11, ECF No. 30.)
(1) Intrusion Into a Place
“Florida recognizes three categories of privacy torts: ‘(1) appropriation—
the unauthorized use of a person’s name or likeness to obtain some benefit; (2)
intrusion—physically or electronically intruding into one’s private quarters;
[and] (3) public disclosure of private facts—the dissemination of truthful private
information which a reasonable person would find objectionable.’” Oppenheim
v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1308 (M.D. Fla.), aff’d, 627 F.3d 833

After June 27, 2014, the Plaintiff’s next request for his credit report was made on February
25, 2015. As a result, any inquires made by the Defendants that the Plaintiff discovered on
February 25, 2015, fall within the statute of the limitations.
2

(11th Cir. 2010) (quoting Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla.
2003)). As best as the Court can determine, the Plaintiff seems to be raising an
intrusion claim. (Compl. ¶ 46.) “An intrusion claim has three elements. First,
there must be a private quarter. Second, there must be some physical or
electronic intrusion into that private quarter. Third, the intrusion must be
highly offensive to a reasonable person.” Stasiak v. Kingswood Co-op, Inc., 2012
WL 527537, at *1 (M.D. Fla. Feb. 17, 2012) (citation omitted). “Florida law
explicitly requires an intrusion into a private place and not merely into a
private activity.”  Spilfogel v. Fox Broadcasting Co. Eyeglasses, 433 Fed. App’x.
724, 727 (11th Cir. 2011).
Courts in this district have found that accessing medical records and
accessing a plaintiff’s driver’s license information are not intrusions into a
private quarter. Bradley v. City of St. Cloud, No. 6:12–cv–1348–Orl–37TBS,
2013 WL 3270403 (M.D. Fla. June 26, 2013); Watts v. City of Hollywood,
Florida , 146 F. Supp. 3d 1254, 1267 (S.D. Fla. 2015) (Altonaga, J.). The Court
declines to find, then, that accessing a credit report constitutes an intrusion
into a “place.” See Eaton v. Cent. Portfolio Control, Inc., No. CIV. 14-747
DSD/FLN, 2014 WL 6982807, at *3 (D. Minn. Dec. 9, 2014) (“Simply accessing
another’s credit report in good faith, however, does not typically give rise to
an intrusion upon seclusion claim.”).
(2) Offensive to a Reasonable Person
Even if accessing a credit report were an intrusion into a private quarter,
the Plaintiff must show that the intrusion was so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency. See, e.g.,
Oppenheim, 695 F. Supp. 2d at 1309 (“To constitute an invasion of privacy, the
intrusion must be highly offensive to a reasonable person.” (citing Stoddard v.
Wohlfahrt, 573 So. 2d 1060, 1062–63 (Fla. Dist. Ct. App. 1991))). The
Defendants’ access of the Plaintiff’s credit information simply does not qualify
as outrageous enough to satisfy this standard. See Stasiak v. Kingswood Co–
Op, Inc., No. 8:11–cv–1828–T–33MAP, 2012 WL 527537 (M.D. Fla. Feb. 17,
2012) (holding that obtaining a couple’s credit report without a permissible
purpose does not rise to the level of outrageousness required for invasion of
privacy).
Accordingly, the Plaintiff can allege no facts sufficient to state a cause of
action for invasion of privacy. The Court thus dismisses with prejudice Count
3 of the complaint.
C. Count 4: Negligence
Count 4 of the complaint states that the Defendants acted with
“negligent, wanton, and intentional conduct.” (Compl. ¶ 53.) Construed

liberally, the court believes the Plaintiff is trying to raise a claim of negligence.
See Erikson, 551 U.S. at 94 (2007). “To be sustained as a claim of negligence,
Count [4] must allege four elements: a duty, breach of that duty, causation,
and damages.” See Curd v. Mosaic Fertilizer, L.L.C., 39 So. 3d 1216, 1227 (Fla.
2010). Even construed liberally, the Plaintiff’s complaint has not stated any
facts showing that any of those elements have been satisfied.
Further, Count 4 of the complaint seems to be alleging a charge of willful
and intentional conduct. (Compl. ¶ 53.) However, the Court is not aware of any
cause of action for “willful and intentional conduct.” Therefore, the Plaintiff has
failed to allege facts sufficient to state a claim of negligence. Moreover, the
Plaintiff cannot state a claim for “willful and wanton conduct” for which no
cause of action appears to exist.
The Court thus dismisses without prejudice Count 4 of the complaint.
4. Conclusion
For the above reasons, the Court grants the Defendants’ motions to
dismiss (ECF Nos. 23 and 30). Counts 1, 2, and 4 are dismissed without
prejudice. The Plaintiff is given leave to file an amended complaint addressing
the deficiencies noted in this order, to the extent the deficiencies may be cured.
The Plaintiff must file the amended complaint by July 14, 2017. However, the
Court dismisses with prejudice Count 3 because the Plaintiff can plead no
version of the facts to state a claim for invasion of privacy under Florida law
based on unauthorized access of a credit report. Finally, the Court strikes any
allegations based on dates of access prior to June 27, 2014, because those
claims are precluded by the statute of limitations.
Done and ordered in chambers, at Miami, Florida, on June 30, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge