Smith v. Safeco Insurance

Filing 67

ORDER Dismissing Case: Court grants Safecos motion to dismiss and dismisses Smiths Third Amended Complaint with prejudice. Status hearing set for 3/10/2014 is stricken. Civil case terminated. Signed by the Honorable Virginia M. Kendall on 3/7/2014.Mailed notice(tsa, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS

Plaintiff
Smith
v.

Case No: 13 c 2788

Judge Virginia M. Kendall
Defendant
Safeco
ORDER
Court grants Safeco’s motion to dismiss and dismisses Smith’s Third Amended Complaint with
prejudice. Status hearing set for 3/10/2014 is stricken.
(T:05)

STATEMENT

In his Third Amended Complaint (Dkt. No. 53), Rodney Smith alleges that Safeco Insurance
willfully violated the Fair Credit Reporting Act (“FCRA”) by pulling his credit reports without any
permissible purpose. Smith filed his Third Amended Complaint after this Court dismissed his
Second Amended Complaint (Dkt. No. 27) because Smith did not include sufficient factual content
to support a reasonable inference that Safeco willfully violated the FCRA. (Dkt. No. 51 at 7.)
Because Smith is a pro se plaintiff, this Court dismissed Smith’s Second Amended Complaint
without prejudice to give Smith an opportunity to plead willfulness adequately.
He has not done so. Smith’s Third Amended Complaint, for the most part, tracks his Second
Amended Complaint. He alleges that Safeco pulled his credit report without a permissible purpose,
describes his efforts to investigate the credit report inquiry, and explains that one who acts
knowingly or recklessly may violate the FCRA. But Smith fails to correct the deficiencies identified
in this Court’s order dismissing his Second Amended Complaint. Specifically, Smith states that
Safeco “was in willful noncompliance” when it pulled his credit report (Dkt. No. 53 at ¶ 65), and that
Safeco “willfully violated 15 U.S.C. § 1681b(f)” by obtaining his credit reports from Experian and
TransUnion (Dkt. No. 53 at ¶¶ 69 and 72). These conclusory allegations concerning willfulness are
no different from those in Smith’s Second Amended Complaint where he alleged that Safeco “was
in willful noncompliance” and that Safeco “willfully violated the FCRA.” (See Dkt. No. 27 at ¶¶ 22
and 27.)
A plaintiff must support allegations concerning a defendant’s state of mind with factual content. See
Yeftich v. Navistar, Inc., 722 F.3d 911, 916 (7th Cir. 2013) (“Bare assertions of the state of mind
required for the claim . . . must be supported with subsidiary facts.”). When dismissing Smith’s
Second Amended Complaint, this Court explained that Smith needed to include factual allegations
that supported his allegations of willfulness. (Dkt. No. 51 at 5.) This Court even provided examples
of the types of factual allegations that would support allegations of willfulness. (Id. at 5-6.) By doing
so, and by allowing Smith to file three amended complaints, this Court extended Smith the leniency
normally given to pro se litigants. Even so, Smith did not amend his complaint to include any factual

content to support a reasonable inference that Safeco acted willfully. Smith’s repeated failure to
plead willfulness adequately requires dismissal of his complaint with prejudice. Therefore, this Court
grants Safeco’s motion to dismiss and dismisses Smith’s Third Amended Complaint with prejudice.

Date: March 7, 2014

/s/ Virginia M. Kendall