Aknin v. Experian Information Solutions, Inc. et al

Filing 26

ORDER granting 23 Motion to Dismiss. Amended Complaint due by 11/28/2017. Signed by Judge Robert N. Scola, Jr on 11/14/2017. (ail)

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 Amended Complaint
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 Amended Complaint (ECF No. 23). For the reasons set forth
below, the Court grants the motion to dismiss (ECF No. 23).
1. Background
The First Amended Complaint alleges that Defendant Experian issued
credit reports that included inaccurate information about Aknin’s credit
history. (Am. Compl. ¶ 11, ECF No. 22.) 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 concerning the dispute,
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 both Experian and Bright Star.
Bright Star moved to dismiss Aknin’s original Complaint, arguing that it
was a shotgun pleading. (Mot. to Dismiss, ECF No. 12). The Court denied the
motion, but gave Aknin leave to amend a scrivener’s error identified by the
parties in their briefing on the motion to dismiss. (Order 3-4, ECF No. 21.)
Aknin subsequently filed the First Amended Complaint, which Bright Star has
moved to dismiss for failure to state a claim.

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 first argues that Aknin has failed to state a claim under the
FCRA because both of the counts against Bright Star fail to “cite any specific
statute that Bright Star allegedly violated.” (Mot. 2.) However, both Counts
Three and Four of the First Amended Complaint allege that Bright Star violated
the FCRA’s requirements that those who furnish information to consumer
reporting agencies: (1) participate in re-investigations when consumers dispute
the accuracy of the information in their credit report; (2) conduct timely
investigations of disputed information upon notification by a consumer
reporting agency that a consumer disputes the information; and (3) report the
results of the investigation to the consumer reporting agency and, if the
investigation revealed that the information was indeed inaccurate, to any other
agencies that were supplied with the inaccurate information. (Am. Compl. ¶¶
30-33, 39-42.) In addition, Count Three specifically cites to 15 U.S.C. § 1681s.
(Id. ¶ 34.) Bright Star argues that this citation is incorrect, since that provision

applies to administrative enforcement by the Federal Trade Commission. (Mot.
3.) While this is true, 15 U.S.C. § 1681s-2 sets forth the exact requirements
described above. Bright Star cannot reasonably argue that, due to the omission
of the “-2” from the statutory citation, it has not been provided notice of the
statutory requirements that it is alleged to have violated since the First
identifies the FCRA as the statute under which the suit is being brought, and
Counts Three and Four recite almost verbatim the provisions of the FCRA that
Bright Star is alleged to have violated.
Bright Star next argues that Counts Three and Four seek damages
pursuant to 15 U.S.C. § 1601(n), a provision of the FCRA that does not exist.
Bright Star is technically correct since 15 U.S.C. § 1601n is the provision of the
FCRA that sets forth the available damages. However, the Court seriously
doubts that the erroneous addition of parentheses to the statutory citation
actually “left [Bright Star] to guess what, exactly Plaintiff seeks and whether
there is any basis for it,” particularly since the Plaintiff included the correct
citation in the prayer for relief.
Finally, Bright Star argues that the First Amended Complaint fails to
state a claim because it does no more than make conclusory allegations about
Bright Star’s alleged violations of the FCRA. (Mot. 3-4.) The FCRA requires that
a furnisher of information to a consumer reporting agency: (1) investigate
disputed information upon receiving notification of the dispute from the
consumer reporting agency; (2) review all relevant information provided by the
consumer reporting agency; (3) report the results of the investigation to the
consumer reporting agency; (4) if the investigation finds that the information is
inaccurate, report those results to all other consumer reporting agencies to
which the information was provided; and (5) if the information is inaccurate or
cannot be verified, modify, delete, or permanently block the reporting of the
information. 15 U.S.C. § 1681s-2(b)(1).
The First Amended Complaint alleges that “Plaintiff notified Experian
that he disputed the accuracy of the information Experian was reporting, on or
around April 6, 2017, specifically stating in a letter and providing evidence that
this debt was paid and should reflect a zero balance.” (Am. Compl. ¶ 12.)
Although Aknin does not identify the account, presumably the account was
with Bright Star, as the next paragraph alleges that upon being notified that
the account was disputed, “Bright Star Credit Union failed to conduct a
reasonable investigation and continued to report false and inaccurate adverse
information on the consumer report of the Plaintiff . . . .” (Id. ¶ 13.) The
remaining allegations against Bright Star simply recite the language of the
statutory provisions described above. (Id. ¶¶ 34, 43-44.) Indeed, in his response
to the motion to dismiss, Aknin sets forth the elements required to state a

claim under § 1681s-2, along with quotations from the First Amended
Complaint that Aknin contends satisfy each element. (Resp. 5-6, ECF No. 25.)
The quotes from the First Amended Complaint simply parrot the language of
each required element. (See id.) However, as Aknin himself acknowledges, “a
formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555 (internal citations omitted).
Aknin’s allegations do not contain sufficient factual content to raise
Aknin’s right to relief above the speculative level. See id. For example, although
Aknin generally alleges that Bright Star failed to review all relevant information
regarding the disputed account, he does not identify any information that
Bright Star failed to review. (Am. Compl. ¶¶ 34, 44.) Therefore, Aknin has failed
to state a plausible claim to relief. See Smith v. Bank of America Home Loans,
968 F.Supp.2d 1159, 1166-67 (M.D. Fla. 2013) (dismissing FCRA claim
because plaintiff merely alleged that defendant failed to conduct a reasonable
investigation, but did not explain how the investigation failed to meet the
requirements of the statute); Green v. Chase Bankcard Serv.’s, Inc., No. 8:16cv-3252-T-33AAS, 2017 WL 1135314, at *3 (M.D. Fla. Mar. 25, 2017) (holding
that the plaintiff failed to state a claim under the FCRA because the plaintiff
alleged in “conclusory fashion” that the defendant failed to conduct a
reasonable investigation).
4. Conclusion
Accordingly, the Court grants Bright Star’s Motion to Dismiss Amended
Complaint (ECF No. 23). Counts Three and Four of the First Amended
Complaint are dismissed without prejudice. The Court grants Aknin leave to
amend Counts Three and Four in order to correct the deficiencies identified
above. An amended complaint must be filed on or before November 28, 2017.
The Court reminds both parties that they must comply with the
requirements of Federal Rule of Civil Procedure 11(b), which states, in relevant
part, that by presenting a pleading, written motion, or other paper to the Court,
the attorney certifies that “it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly increase the cost of
litigation,” and that “the claims, defenses, and other legal contentions are
warranted by existing law . . . .”
Done and ordered at Miami, Florida on November 14, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge