Nooruddin v. Comerica Incorporated

Filing 10

MEMORANDUM AND ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Eric F. Melgren on 11/16/2011. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MANSOOR NOORUDDIN,
Plaintiff,

vs.

Case No. 11-1188-EFM

COMERICA INCORPORATED,

Defendant.

MEMORANDUM AND ORDER
To survive a motion to dismiss, a plaintiff must allege sufficient facts in his complaint.
Plaintiff Mansoor Nooruddin filed suit, asserting claims under the Fair Debt Collection Practices Act
and the Fair Credit Reporting Act and an intentional infliction of emotional distress claim.
Defendant seeks dismissal, alleging that Nooruddin did not assert sufficient facts for his three claims
to survive Defendant’s motion to dismiss. We find that his complaint was sufficiently detailed as
to his two statutory claims, and so deny Defendants’ motion to dismiss. As to his tort claim,
however, we find his allegations insufficient, and grant dismissal.
I. Factual and Procedural Background
The following facts are taken from Plaintiff’s corrected complaint.1 For the purposes of this
motion, the Court assumes the truth of these facts. Plaintiff Mansoor Nooruddin lived in Shelby

1

Plaintiff filed his complaint on July 15, 2011 but filed a corrected complaint on July 18, 2011. See Doc.1-1.

Township, Michigan until February, 2010. During Plaintiff’s residency in Michigan, he opened a
checking account with Defendant Comerica Incorporated’s branch office that he used to receive
direct payroll deposits from his employer. Plaintiff was laid off in January, 2010.
In February, Plaintiff moved to Wichita, Kansas to live with his parents and left his checking
account open with Defendant’s branch office because he was expecting his final payroll deposits to
be made directly to that account. Plaintiff received his final pay from his former employer two to
three weeks after he moved to Wichita. Prior to moving to Wichita, Plaintiff filed a change of
address notice with the U.S. Postal Service.
In March, 2011, Plaintiff approached a banking institution in Wichita, Kansas to request a
new checking account, but the bank refused his request. Plaintiff alleges that he learned Defendant
had reported to consumer reporting agencies that Plaintiff owed Defendant $832.00 in overdraft
charges related to his checking account at Defendant’s branch office. Plaintiff did not receive any
notice that such overdraft charges had been made against his checking account, and he alleges that
he had not written any checks on the Comerica checking account that would have resulted in the
overdraft charges. Despite Plaintiff’s several attempts to contact Defendant’s branch office and
corporate headquarters, Plaintiff contends that Defendant has failed to provide him with an
explanation for the overdraft charges. In addition, Plaintiff alleges that despite his request for an
investigation into the source of the overdraft charges, Defendant, and its third party contractual
partners,2 have failed to investigate.
Plaintiff brings three claims. In his first claim, violation of the Fair Debt Collection Practices
Act (“FDCPA”), he contends that Defendant, and their third-party contractual partners, are debt

2

No third-party contractual partners are named in the complaint.

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collectors. Plaintiff alleges that they violated the FDCPA by falsely representing the character,
amount, or legal status of a debt.
In Plaintiff’s second claim, violation of the Fair Credit Reporting Act (“FCRA”), he alleges
that Defendant furnishes information to one or more consumer reporting agencies about transactions.
Plaintiff contends that after Defendant received Plaintiff’s notice of dispute, Defendant failed to
adequately conduct an investigation with respect to the disputed information. Plaintiff also asserts
that Defendant did not notify Plaintiff that the dispute was considered frivolous or that Plaintiff had
not provided sufficient information to investigate the dispute.
Plaintiff also asserts a claim for intentional infliction of emotional distress. He claims that
Defendant intended to and did inflict severe emotional distress upon Plaintiff by engaging in actions
to intimidate and coerce Plaintiff into paying a debt which was not legitimately owed.
Defendant filed a motion to dismiss seeking to dismiss all claims pursuant to Fed. R. Civ.
P. 12(b)(6). Plaintiff filed a motion for extension of time to file a response,3 but the motion was
denied because it was not timely filed.4 In the Court’s denial of that motion, on September 29, 2011,
it directed Plaintiff to the local rules instructing parties how to file motions for leave to file out of
time. Plaintiff never sought leave to file his response out of time. Accordingly, Defendant’s motion
is unopposed. Although Defendant’s motion to dismiss is unopposed, the Court must still consider
the sufficiency of the allegations and determine whether the plaintiff states a claim for relief.5

3

Doc. 8.

4

Doc. 9.

5

See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003).

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II. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim for relief that is plausible on its face.’”6 “[T]he mere metaphysical
possibility that some plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.”7 “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial, but to assess whether
the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.”8
In determining whether a claim is facially plausible, the court must draw on its judicial
experience and common sense.9 All well pleaded facts in the complaint are assumed to be true and
are viewed in the light most favorable to the plaintiff.10 Allegations that merely state legal
conclusions, however, need not be accepted as true.11
III. Discussion
Defendant moves for dismissal of the complaint. Defendant first contends that Plaintiff fails
to state a claim because Plaintiff failed to name the proper party. In addition, Defendant asserts that
Plaintiff inadequately alleged sufficient facts to support any of his claims.

6

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twonbly, 550 U.S.
544, 570 (2007)).
7

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

8

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003).

9

Iqbal, 129 S.Ct. at 1950.

10

See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).

11

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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Defendant argues that Plaintiff alleged in his complaint that he opened an account with
“Comerica Bank” but that Plaintiff obtained service on “Comerica Incorporated.” Plaintiff, however,
never makes allegations against “Comerica Bank” in the complaint. Instead, he alleges that he
opened a checking account with “Defendant’s branch office.” As such, from the allegations in the
complaint, it would appear that this relates to the named Defendant, Comerica Incorporated.
Furthermore, although Defendant argues that Comerica Bank, a Texas banking association, and
Comerica Incorporated, a Delaware corporation, are separate entities, Defendant provides no support
for this argument. Defendant merely asserts it in its brief and expects the Court to treat it as an
established fact. Accordingly, because Defendant’s argument is unsupported and outside of the
complaint, its argument that it is an improper party fails.
Defendant contends that Plaintiff’s first cause of action, a violation of the FDCPA, fails
because “Comerica Bank” acts as a creditor collecting its own debts and therefore cannot be
considered a “debt collector” under the FDCPA. 15 U.S.C. § 1692a(6) defines “debt collector” as
“any person who . . . regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” Although Defendant categorizes itself as a creditor, and
not as a “debt collector,” on a motion to dismiss, the Court must consider only the allegations in the
complaint itself. Plaintiff specifically asserts that Defendant is a debt collector. “There is no
requirement in the FDCPA that the facts to support the allegation that a party is a debt collector be
pled with particularity.”12 While Defendant may not be a “debt collector” within the meaning of the
FDCPA, the Court cannot conclude this from the face of the complaint and must construe all
allegations in the light most favorable to Plaintiff. As such, the Court denies Defendant’s motion to

12
See Carter v. Daniels, 91 F. App’x 83, 86 (10th Cir. 2004) (reversing a district court’s dismissal of a pro se
plaintiff’s claim under the FDCPA because complaint adequately alleged that defendant was a debt collector).

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dismiss this claim.
With respect to Plaintiff’s claim of a violation of the FCRA, 15 U.S.C. § 1681s-2(b)(1)
provides that furnishers of information must perform certain duties “[a]fter receiving notice pursuant
to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any
information provided by a person to a consumer reporting agency . . . .” Because filing a dispute
with a consumer reporting agency is a prerequisite to liability under the FCRA,13 Defendant
contends that it is absolved from liability as Plaintiff’s complaint fails to allege that he filed a
dispute with a consumer reporting agency. Plaintiff, however, alleges in the complaint that
Defendant failed to adequately conduct an investigation with respect to the disputed information
after his notice of dispute was received at the offices of the Defendant. Although not specifically
pled that Plaintiff first filed the dispute with a consumer reporting agency, construing the complaint
in the light most favorable to Plaintiff, the allegation in the complaint could be construed that
Defendant received the notice of the dispute from a consumer reporting agency. Again, on a motion
to dismiss, the Court must only consider the facts on the face of the complaint and assume they are
true. As such, the Court denies Defendant’s motion to dismiss this claim.
As to Plaintiff’s claim of intentional infliction of emotional distress, four elements are
required: “(1) [t]he conduct of defendant must be intentional or in reckless disregard of plaintiff; (2)
the conduct must be extreme and outrageous; (3) there must be a causal connection between
defendant's conduct and plaintiff's mental distress; and (4) plaintiff's mental distress must be extreme
and severe.”14 Extreme and outrageous conduct “must be so outrageous in character and so extreme

13

See 15 U.S.C. § 1681i(a)(2); see also Tilley v. Global Payments, Inc., 603 F. Supp. 2d 1314, 1322 (D. Kan.

2009).
14

Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024, 1029 (1991) (citation omitted).

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in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly
intolerable in a civilized society.”15 Plaintiff’s complaint fails to contain any factual allegations that
Defendant’s behavior was extreme or outrageous. Plaintiff’s complaint does not even contain a bare
legal conclusion asserting that Defendant’s behavior was extreme or outrageous. Furthermore,
Plaintiff fails to allege any facts that his mental distress was extreme and severe. He simply asserts
that Defendant intended to and did inflict severe emotional distress upon him. As such, Plaintiff
fails to state a claim, and the Court dismisses this claim.
IT IS ACCORDINGLY ORDERED that Defendant’s Motion to Dismiss (Doc. 7) is
GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

15

Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 257, 978 P.2d 922, 930 (1999).

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