Smith v. LexisNexis Risk Solutions, Inc.
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 5/22/2013. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RODNEY SMITH,
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Plaintiff,
v.
LEXISNEXIS,
Defendant.
Case No. 12-cv-8872
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s motion to dismiss Plaintiff’s complaint [6]. For the
reasons stated below, the Court grants the motion and dismisses Plaintiff’s complaint without
prejudice. Plaintiff may file an amended complaint within 28 days of the date of this order.
I.
Background
A.
Complaint
Pro se Plaintiff Rodney Smith sued Defendant LexisNexis for alleged violations of the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.
Plaintiff’s concise complaint, which the Court construes liberally, see McCormick v. City
of Chi., 230 F.3d 319, 325 (7th Cir. 2000), alleges that Defendant obtained his consumer credit
report from Experian and Trans Union without permissible purpose on six occasions in 2010 and
2011. Specifically, the complaint alleges that:
•
On April 27, 2010, Defendant obtained Plaintiff’s consumer credit report
from Experian on behalf of State Farm Insurance, [1] ¶ 12, and from Trans
Union on behalf of Hartford Insurance, id. ¶ 13, without permissible
purpose.
1
•
On March 4, 2011, Defendant obtained Plaintiff’s consumer credit report
from Experian on behalf of Safeco Insurance, id. ¶ 9, P&C Insurance, id. ¶
10, and Balboa Insurance, id. ¶ 11, without permissible purpose.
•
On March 14, 2011, Defendant obtained Plaintiff’s consumer credit report
from Experian on behalf of State Farm Insurance without permissible
purpose. Id. ¶ 12.
The complaint alleges that each of these incidents constituted a negligent violation of 15 U.S.C.
§ 1681b(f) and/or unspecified provisions of the FDCPA. Plaintiff demands damages in the
amount of $1000 for each alleged violation, as well as attorneys’ fees and costs.
B.
Motion to Dismiss
Defendant moved to dismiss Plaintiff’s complaint. See [6]. Defendant contends that
Plaintiff’s complaint fails to plead sufficient facts to sustain either an FCRA or FDCPA claim
and that the complaint fails to identify any provision of the FDCPA that Defendant violated. See
id.
C.
Plaintiff’s Response Briefs
Plaintiff filed two briefs opposing Defendant’s motion to dismiss. See [10], [21]. These
briefs contain the following additional facts and allegations. Plaintiff disputed the credit report
entries at issue here with Experian in June 2012. [10] at 1; [21] at 1. 1 “Experian responded by
conducting their own investigation and returned a new updated report to Plaintiff dated July 27,
2012 indicating those disputed inquiries as being removed.” [21] at 1. On July 27, 2012, Plaintiff
mailed a certified letter to Defendant, disputing the inquiries in compliance with Defendant’s
procedures. Id. at 2. Defendant responded on August 8, 2012, stating that written authorization is
not required when a report is furnished for the purpose of underwriting insurance on a consumer.
Id. Plaintiff contends that this response was unsatisfactory, as his “complaint was never properly
1
Neither the complaint nor Plaintiff’s briefs indicate whether he ever contacted Trans Union.
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investigated nor assigned to any LexisNexis customer service agent to perform at best a minimal
investigation.” Id. He further alleges that “Defendant never provided [him] with the specific
company that initiated the inquiry into my credit profile despite several dispute letters being
sent.” Id. Defendant continued its alleged intransigence even after Plaintiff sent it another
certified letter on October 9, 2012, initiated this lawsuit on November 6, 2012, and followed up
with a third certified letter on November 7, 2012. See id. After Defendant moved to dismiss the
suit, Plaintiff on January 7, 2013 sent Defendant a fourth certified letter in which he outlined “in
detail” his lack of knowledge of ever seeking an insurance quote from any of the companies
named in the disputed inquiries. Id. at 3. Plaintiff also conducted his own investigation, which
revealed that Balboa Insurance does not provide commercial or personal automobile insurance
and netted a letter from P&C Insurance stating that it never “pulled” Plaintiff’s credit or had an
active file on him. See id.
In the briefs – but not in his complaint – Plaintiff alleges that Defendant violated 15
U.S.C. § 1681i, which requires consumer reporting agencies to conduct a “reasonable
investigation” when a consumer notifies them of any disputes with information contained in the
consumer’s file. See generally [10]; [21]. Plaintiff’s second brief further alleges that Defendant
violated the FCRA “willfully or negligently,” [21] at 5, and identifies the provisions of the
FDCPA that Defendant allegedly violated: 15 U.S.C. §§ 1692c(b), 1692e(8), 1692e(10),
1692g(a)(4), 1692g(a)(5), and 1692g(b).
D.
Defendant’s Reply Brief
In its reply brief [24], Defendant reiterates its arguments that Plaintiff’s complaint lacks
sufficient factual support to state a claim under either the FCRA or the FDCPA. Defendant
contends that the purported facts and evidence submitted in Plaintiff’s response briefs are
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irrelevant and inapplicable, but nonetheless states that it has “no objection to the Court
considering matters outside the pleadings and treating the motion to dismiss as a motion for
summary judgment pursuant to Rule 12(d) of the Federal Rules of Civil Procedure,” [24] at 3,
provided that it is also permitted to submit its evidence.
II.
Discussion
A.
Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chi., 910 F.2d
1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first
must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that
the pleader is entitled to relief,” such that the defendant is given “‘fair notice of what the * * *
claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the
claim must be sufficient to raise the possibility of relief above the “speculative level,” assuming
that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc.,
496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers
‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not
do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). For a claim to be plausible, the plaintiff must
put forth enough “facts to raise a reasonable expectation that discovery will reveal evidence”
supporting the plaintiff's allegations. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
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Although “[s]pecific facts are not necessary [–] the statement need only give the defendant fair
notice of what the * * * claim is and the grounds upon which it rests,” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original) – “at some point the
factual detail in a complaint may be so sketchy that the complaint does not provide the type of
notice of the claim to which the defendant is entitled under Rule 8.” Brooks, 578 F.3d at 581
(quoting Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.
2007)). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City
of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir.
1999) (“Whether a complaint provides notice, however, is determined by looking at the
complaint as a whole.”).
The Court accepts as true all well-pleaded facts alleged by the plaintiff and all reasonable
inferences that can be drawn from them. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
Moreover, in reviewing a pro se complaint, the Court employs standards less stringent than if the
complaint had been drafted by counsel. Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995).
B.
Analysis
1.
Additional Facts and Allegations in Plaintiff’s Briefs
As a threshold issue, the Court must decide whether to consider the additional facts,
evidence, and allegations presented in Plaintiff’s briefs opposing the motion to dismiss.
Defendant correctly observes that Federal Rule of Civil Procedure 12(d) provides that
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.
The Seventh Circuit has held that plaintiffs may add additional facts in their response to a
motion to dismiss if “the facts are consistent with the allegations of the complaint.” Help At
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Home, Inc. v. Med. Capital, L.L.C., 260 F.3d 748, 753 (7th Cir. 2001); see also Smith v. Knox
Cnty. Jail, 666 F.3d 1037, 1037 (7th Cir. 2012). Here, the facts that Plaintiff sets forth in his
briefs fit that bill. In light of Plaintiff’s pro se status, and the consistency of the facts in the briefs
with the allegations in the complaint, the Court considers these facts in evaluating the motion to
dismiss.
The Court does not, however, consider the new allegations that Plaintiff raises for the
first time in his response briefs. The Seventh Circuit has deemed it an “axiomatic rule that a
plaintiff may not amend his complaint in his response brief.” Pirelli Armstrong Tire Corp.
Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011); see also Agnew
v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 2012) (“[I]t is a basic principle
that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”
(quotation omitted)). If Plaintiff wishes to pursue his allegations that Defendant violated 15
U.S.C. § 1681i, violated any provision of the FCRA willfully, or violated 15 U.S.C. §§ 1692c(b),
1692e(8), 1692e(10), 1692g(a)(4), 1692g(a)(5), and/or 1692g(b), and believes he can do so in
conformance with Federal Rule of Civil Procedure 11 and the remainder of this order, he may
amend his complaint within 28 days of this order.
2.
FCRA Claim (Count I)
Plaintiff’s complaint alleges that Defendant negligently violated 15 U.S.C. § 1681b(f) by
obtaining his credit report without a permissible purpose. See [1] ¶ 17. Although the complaint
provides the dates of the alleged infractions, it is completely devoid of any other facts pertaining
to the alleged conduct or the damages Plaintiff incurred as a result. Although “[s]pecific facts are
not necessary [–] the statement need only give the defendant fair notice of what the * * * claim is
and the grounds upon which it rests,” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing
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Twombly, 550 U.S. at 555) (ellipsis in original) – “at some point the factual detail in a complaint
may be so sketchy that the complaint does not provide the type of notice of the claim to which
the defendant is entitled under Rule 8.” Brooks, 578 F.3d at 581 (quoting Airborne Beepers &
Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)). The complaint here,
even when read generously, is beyond that point. It consists almost exclusively of conclusory
allegations that Defendant improperly obtained Plaintiff’s consumer credit report, which without
more is insufficient to state a claim. See Fong v. Client Services, Inc., 2012 WL 2061624, at *2
(N.D. Ill. June 6, 2012). For instance, Plaintiff “has not provided even the slenderest of
allegations to buttress the conclusion that he suffered actual damages in support of a theory of
negligent violation under § 1681o(a)(1),” such as by alleging “that he was denied or lost credit or
was subjected to a higher interest rate” as a result of Defendant’s improper acquisition of his
credit report. Novak v. Experian Info. Sol’ns, Inc., 782 F. Supp. 2d 617, 623 (N.D. Ill. 2011).
The additional facts contained in Plaintiff’s response briefs do little to remedy this
infirmity, as they primarily pertain to Plaintiff’s apparent additional – but as yet unasserted –
claim that Defendant violated 15 U.S.C. § 1681i by failing to adequately respond to his
communications about the disputed credit report entries. The response briefs do allege that
“Plaintiff at no time had business dealings with any of the companies in question, nor requested
an insurance quote, nor received an offer of any kind from these companies in the mail,” [21] at
4, which is pertinent to Plaintiff’s § 1681b(f) claim, but they do not place Defendant on notice of
Plaintiff’s alleged actual damages. See Novak, 782 F. Supp. at 623.
The Court grants Defendant’s motion to dismiss Count I.
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3.
FDCPA Claim (Count II)
Plaintiff also alleges that Defendant violated the FDCPA when it accessed his consumer
credit report. The FDCPA aims to “eliminate abusive debt collection practices by debt collectors,
to insure that those debt collectors who refrain from using abusive debt collection practices are
not competitively disadvantaged, and to promote consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C. § 1692(e). Plaintiff’s complaint alleges that he is a
“consumer” within the meaning of the FDCPA, see 15 U.S.C. § 1692a(3), but does not contain
any allegations as to any debt that he may or may not owe, Defendant’s status as a “debt
collector,” or any communications between Plaintiff and Defendant. It likewise is devoid of any
suggestion as to which provision(s) of the FDCPA Defendant allegedly violated, depriving
Defendant of the minimal notice to which it is entitled by Federal Rule of Civil Procedure 8.
Even if the Court were to take into account the allegations and theories asserted in
Plaintiff’s response briefs, Plaintiff’s complaint still would fail to state a claim under the FDCPA
because he concedes that Defendant is not a “debt collector.” See [21] at 7. Only defendants who
are found to be “debt collectors” as defined in 15 U.S.C. § 1692a(6) are subject to civil liability
under the FDCPA. See 15 U.S.C. § 1692k; McKinney v. Cadleway Properties, Inc., 548 F.3d
496, 500 (7th Cir. 2008).
The Court grants Defendant’s motion to dismiss Count II.
III.
Conclusion
For the reasons stated above, Plaintiff’s complaint fails to state a claim under either the
FCRA or the FDCPA. Defendant’s motion to dismiss [6] is granted, and Plaintiff’s complaint is
dismissed without prejudice. Given Plaintiff’s pro se status, the Court gives him 28 days in
which to file an amended complaint if he feels that he can (1) cure the deficiencies identified
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above or (2) state an additional claim (or claims) beyond those amended Counts I and II of the
initial complaint, and (3) can do so in accordance with Federal Rule of Civil Procedure 11.
Plaintiff is advised that the amended complaint, if filed, must stand on its own, without reference
to the previous complaint. Plaintiff may consider seeking the aid of the Pro Se Assistance
Program. The Pro Se Assistance Program operates by in-person appointment only. Appointments
may be made at the Clerk’s Intake Desk or by calling (312) 435-5691.
Dated: May 22, 2013
________________________________
Robert M. Dow, Jr.
United States District Judge
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