Davis v. Warner et al

Filing 17

ORDER that the Court declines to adopt the report and recommendation. Plaintiff shall have fourteen days from the date of this Order to file an amended complaint. Signed by Judge William T. Moore, Jr on 3/4/15. (bcw)

IN THE UNITED STATES DISTRICT COURT FOR--,. •
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

KENNETH E. DAVIS,
Plaintiff,
CASE NO. CV414-258

V.

STEVE WARNER and OPTIMUM
OUTCOMES, INC.,
Defendants.

ORDER

Before the Court is the Magistrate Judge's Report and
Recommendation (Doc.

12),

to which objections have been

filed (Doc. 14). Defendants have filed a response in
opposition to Plaintiff's objections. (Doc.
careful consideration, the Court

15.)

DECLINES TO ADOPT

report and recommendation. Plaintiff shall have
days

After
the

fourteen

from the date of this order to file an amended

complaint. Plaintiff is ON NOTICE that failure to file an
amended complaint shall result in the dismissal of this
case.
Plaintiff, who is appearing pro se, filed this suit
claiming that Defendants have violated Section 623 of the
Fair Credit Reporting Act ("FCRA") by improperly reporting
an outdated debt to various credit rating agencies. (Doc.
1, Attach. 1 at 3.) While the original complaint is vague,

Plaintiff clarifies in a subsequent filing' that he believes
Defendants have violated 15 U.S.C. § 1681s-2(a) (5) and
(c) (1). (Doc. 7 at 1.) As the Magistrate Judge points out
in his report and recommendation, however, there is no
private right of action under § 1681s-2 (a). Green v. RES
Nat'l Bank, 288 F. App'x 641, 642-43. (11th Cir. 2008). The
Magistrate Judge notes, however, that a private right of
action is afforded under § 1681s-2(b), but "only if the
furnisher received notice of the consumer's dispute from a
consumer reporting agency." (Doc. 12 at 3.)
In his objections, Plaintiff now claims that he did
dispute the reporting of the allegedly outdated debt to all
three major credit reporting agencies—Equifax, Experian,
and TransUnion. (Doc. 14 at 1.) As a result, Plaintiff
claims that Defendants must have received notice from the
reporting agencies. 2 Id. In addition, Plaintiff requests

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Plaintiff incorrectly titles his response as a notice of
removal.
2
Plaintiff also takes great issue with the fact that
Defendants have removed this matter to federal court after
he brought suit in small claims court. (Doc. 14 at 1-2.)
While the Court is sympathetic to Plaintiff concerning the
difficulties in representing oneself pro Se, there is
nothing improper about Defendants' handling of this case.
As Plaintiff filed suit alleging violations of federal law,
Defendants were well within their rights to remove the
action to this Court. See 28 U.S.C. § 1331 ("The district
courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties
of the United States.") . Accordingly, the Court finds
2

that he be given leave to amend his complaint should the
Court find his previous filings insufficient. Id. at 2.
In response, Defendants argue that Plaintiff has still
failed to plead facts to support a cognizable claim under
the FCRA. (Doc. 15 at 2.) Specifically, Defendants state
that Plaintiff has alleged no facts showing a credit
reporting agency gave notice to Defendants of Plaintiff's
claim. Id. Instead, Defendants argue, Plaintiff has only
offered the legal conclusion that Defendants "received
notice from the consumer reporting agency, which qualifies
this case." (Doc. 14 at 2.) Further, Defendants argue that
Plaintiff should not be given leave to amend his complaint
because such amendment would be futile. (Doc. 15 at 4.)
After careful consideration, the Court finds that
Plaintiff should be afforded an opportunity to amend his
complaint to state an appropriate cause of action. See
Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1255 (11th Cir.
2008) ("Under Fed. R. Civ. P. 15(a) (2), a court 'should
freely give leave when justice so requires.'

").

While

Plaintiff's objections do not in themselves present a
proper claim under § 1681s2-(b), the Court disagrees with
Defendants that any amendment would be futile. Plaintiff

Plaintiff's objections regarding this issue to be without
merit.
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alleges that he brought his dispute to the credit reporting
agencies as would be required before bringing suit under
§ 1681s2- (b), and the Court will allow him an opportunity
to plead his case appropriately.
Accordingly, the Court

DECLINES TO ADOPT

the report

and recommendation. Plaintiff shall have fourteen days from
the date of this order to file an amended complaint.
Plaintiff

is ON NOTICE

that failure to file an amended

complaint shall result in the dismissal of this case.
SO ORDERED this

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day of March 2015.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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