Aknin v. Experian Information Solutions, Inc. et al

Filing 21

ORDER denying 12 Motion to Dismiss. Amended Complaint due by 10/10/2017. Signed by Judge Robert N. Scola, Jr on 10/3/2017. (kpe)

United States District Court
for the
Southern District of Florida
Moshe Aknin, Plaintiff,

)
)
v.
)
) Civil Action No. 17-22341-Civ-Scola
Experian Information Solutions, Inc. )
and Bright Star Credit Union,
)
Defendants.
)
Order on Motion to Dismiss
Plaintiff Moshe Aknin brings this action against Defendants Experian
Information Solutions, Inc. (“Experian”) and Bright Star Credit Union (“Bright
Star”) for violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681–1681x
(2006) (“FCRA”). This matter is before the Court on Defendant Bright Star’s
Motion to Dismiss (ECF No. 12). For the reasons set forth below, the Court
denies the motion to dismiss (ECF No. 12).
1. Background
Aknin alleges that Defendant Experian issued credit reports that
included inaccurate information about Aknin’s credit history. (Compl. ¶ 10,
ECF No. 1.) On or about April 6, 2017, Aknin notified Experian that a
particular account had been paid and should reflect a zero balance. (Id. ¶ 12.)
Aknin alleges that upon receiving notice of the disputed account from
Experian, Defendant Bright Star failed to conduct a reasonable investigation of
the dispute, and continued to report false information about the account. (Id. ¶
13.) In addition, Aknin alleges that Experian did not consider any of the
information submitted by Aknin, and did not attempt to verify that the
information concerning the disputed account was accurate. (Id. ¶ 14.) The
Complaint asserts willful and negligent violations of the FCRA as to Experian,
and willful and negligent violations of the FCRA as to Bright Star.
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 (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 1950. 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). For purposes of
Rule 12(b)(6), a court generally may not look beyond the pleadings, which
includes any information attached to a complaint. U.S. ex. Rel. Osheroff v.
Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).
3. Analysis
Bright Star has moved to dismiss the Complaint as a “shotgun” pleading
because each count of the Complaint incorporates by reference all previous
paragraphs of the Complaint. (Mot. to Dismiss at 2-4.) As a threshold matter,
the Court notes that this argument is properly raised in a motion to require the
plaintiff to file a more definite statement under Rule 12(e), not a motion to
dismiss for failure to state a claim under Rule 12(b)(6). See Anderson v. District
Bd. of Trustees of Cent. Florida Community College, 77 F.3d 364, 366 (11th Cir.
1996).
All of the cases cited by Bright Star that dismissed “shotgun” pleadings
involved complaints that were dozens of pages long and asserted several counts
against several defendants. See, e.g., Magluta v. Samples, 256 F.3d 1282, 1284
(11th Cir. 2001) (remanding with direction to district court to require an
amended complaint because the complaint was fifty-eight pages long, named
fourteen defendants, and charged all defendants in each count); Anderson, 77
F.3d at 365-66 (characterizing complaint that included twenty-four paragraphs
containing factual allegations, six counts, and eleven defendants as “a perfect
example of a ‘shotgun’ pleading” because it was “virtually impossible to know
which allegations of fact are intended to support which claim(s) for relief.”);
Bonnie L. ex rel. Hadsock v. Bush, 180 F.Supp.2d 1321, 1348 (S.D. Fla. 2001)
(Moreno, J.) (requiring amended complaint because original complaint was 116

pages long and contained “a narrative account of the history of each Plaintiff
that reads like a closing argument”). None of these courts dismissed a pleading
simply because it incorporated by reference each of the preceding paragraphs;
rather, the pleadings were dismissed because it was impossible to determine
which allegations pertained to each defendant and each counts. See, e.g.,
Magluta, 256 F.3d at 1284 (noting that “any allegations that are material are
buried beneath innumerable pages of rambling irrelevancies”); Cramer v. State
of Fla., 117 F.3d 1258, 1263 (11th Cir. 1997) (noting that the district court
should have required the plaintiffs to amend their complaints because “the
complaints in this case are practically incomprehensible.”). The Eleventh
Circuit has specifically noted that “[t]he 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 v. Palm Beach Cnty.
Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015).
By contrast, here the Complaint includes five paragraphs containing
factual allegations, two Defendants, and two counts against each Defendant.
Contrary to Anderson, it is clear which of the five general factual allegations
pertain to each Defendant. Indeed, Bright Star was able to identify in its reply
the sole factual allegation that pertains to it. (Reply at 2, ECF No. 15.) Although
Aknin has incorporated by reference all paragraphs of the Complaint into each
count, including paragraphs that obviously do not apply to each count, the
potential for confusion that existed in the cases cited by Bright Star does not
exist here.
In Bright Star’s Reply, it argued for the first time that the Complaint fails
to state a claim on which relief can be granted and is so vague that Bright Star
is unable to investigate the allegations, based on deficiencies other than the
fact that each count in the Complaint incorporates all previous paragraphs.
(Reply at 3.) However, Bright Star did not make these arguments or identify
these deficiencies in its Motion to Dismiss. Therefore, Bright Star has waived
the arguments and the Court will not consider them. See Spann v. Cobb Cnty.
Pretrial Court Serv’s Agency, 206 Fed. Appx. 910, 911 fn.1 (11th Cir. 2006)
(stating that appellant had waived argument by failing to raise it in her initial
brief) (citing United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999)).
Notwithstanding the foregoing analysis, both Bright Star and Aknin have
identified a scrivener’s error in the Complaint. Count Four of the Complaint is
titled “Negligent Violation of the FCRA as to CBA.” (Compl. at 9.) Aknin has
noted that the title of Count Four should have referred to Bright Star. (Resp. in
Opp. at 4, ECF No. 13.) Therefore, the Court grants Bright Star leave to amend
the Complaint in order to correct this error. The Court encourages Bright Star

to also amend the paragraphs incorporating by reference all previous
paragraphs, since it is obvious that not all paragraphs in the Complaint are
applicable to each count.
4. Conclusion
Accordingly, the Court denies Bright Star’s Motion to Dismiss (ECF No.
12). The Court grants Bright Star leave to amend the scrivener’s error and the
paragraphs in the Complaint that incorporate by reference all previous
paragraphs. Bright Star must file the amended complaint on or before October
10, 2017. Pursuant to Federal Rule of Civil Procedure 15(a)(3), the Defendants’
responses are due within fourteen days of service of the amended complaint.
Done and ordered at Miami, Florida on October 3, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge