El Bey v. Receivables Performance Management, LLC

Filing 21

ORDER granting in part and denying in part 9 defendant's motion to dismiss and denying 16 plaintiff's motion for leave to file amended complaint. Clerk to send copy of this order via regular and certified mail to plaintiff. Signed on 1/15/15 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Modified on 1/15/2015 to reflect that a copy of the Order was sent via regulr and certified mail, tracking #7013 1710 0000 5617 6902 to Plaintiff (Wheeler, LaTandra).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
OAXACO EL BEY,
Plaintiff,
v.
RECEIVABLES PERFORMANCE
MANAGEMENT, LLC,
Defendant.

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Case No. 14-0820-CV-W-FJG

ORDER
Pending before the Court are (1) Defendant’s Motion to Dismiss with Supporting
Suggestions (Doc. No. 9); and (2) Plaintiff’s Motion for Leave to File Amended
Complaint (Doc. No. 16). As an initial matter, plaintiff’s motion for leave to file amended
complaint (Doc. No. 16) will be DENIED, as plaintiff has failed to attach a copy of the
proposed amended complaint to his motion. See Pet Quarters, Inc. v. Depository Trust
& Clearing Corp., 559 F.3d 772, 782 (8th Cir. 2009). The Court now turns to defendant’s
motion to dismiss.
I.

Background
On August 1, 2014, plaintiff filed the current suit in the Circuit Court of Jackson

County, Missouri. Defendant removed the action to federal court on September 16,
2014. Plaintiff asserts in his pro se complaint that defendant obtained a consumer
credit report for plaintiff without permission or consent from plaintiff and without any
permissible purpose under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et
seq. Plaintiff also asserts similar claims under RSMo § 407.020.

II.

Standard
When ruling on a defendant’s motion to dismiss, a judge must accept as true all

of the factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-56 (2007). A plaintiff need not provide specific facts in support of his allegations.
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). But the plaintiff must include sufficient
factual information to provide grounds on which the claim rests, and to raise a right to
relief above a speculative level. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549
(8th Cir. 2008). 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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This requires a plaintiff
to plead more than labels and conclusions, and a formulaic recitation of the elements of
the cause of action will not do. Twombly, 550 U.S. at 555. A complaint must contain
either direct or inferential allegations respecting all the material elements necessary to
sustain recovery under some viable legal theory. Id. at 562 (quoted case omitted). The
standard simply calls for enough fact to raise a reasonable expectation that discovery
will reveal evidence of the claim. Id. at 556. Additionally, “[a] document filed pro se is to
be liberally construed and a pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations
omitted).
III.

Discussion
Defendant moves to dismiss because (1) plaintiff has insufficiently pled that

defendant had no permissible purpose to obtain plaintiff’s consumer credit report under

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the FCRA; (2) plaintiff’s claim for damages under the FCRA fails because plaintiff has
not sufficiently pled willfulness of defendant’s actions; and (3) plaintiff’s state law claims
are preempted by the FCRA.
A.

FCRA Claim

Plaintiff claims that defendant willfully violated the FCRA by obtaining his credit
report without a statutorily permissible purpose. To succeed on such a claim, Plaintiff
must establish that (1) there existed a consumer report, (2) defendant obtained or used
said report, and (3) it did so without a statutorily permissible purpose. See Phillips v.
Grendahl, 312 F.3d 357, 364 (8th Cir.2002), abrogated on other grounds by Safeco Ins.
Co. of Am. v. Burr, 551 U.S. 47 (2007). To be entitled to statutory damages, Plaintiff
must also establish that defendant “willingly, knowingly, or recklessly violated [the
FCRA].” Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir.2008)
(citing 15 U.S.C. § 1681n; Safeco Ins. Co. of Am., 551 U.S. at 56–58).
Defendant argues that plaintiff has made only threadbare allegations that
defendant had no permissible purpose in obtaining plaintiff’s credit report.

Upon

consideration, the Court finds that the complaint alleges sufficient facts that defendant
accessed plaintiff’s credit report with no permissible purpose. Plaintiff alleges that he
obtained his credit reports, and noticed inquiries by defendant on July 21, 2013 and on
October 11, 2013. Doc. No. 9-1, ¶ 5. Plaintiff alleges that he has never had any
business dealings with defendant, nor has he applied for credit or services with
defendant, nor has he executed any contracts with defendant. Doc. No. 9-1, ¶ 13.
Plaintiff further alleges that the credit inquiries dated July 21, 2013 and October 11,
2013, had no “permissible purpose” and appear to violate 15 U.S.C. § 1681b. Doc. No.

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9-1, ¶ 14. Plaintiff further indicates that he gave defendant notice of its violations, but
as of the date of filing the complaint had not received a reply from defendant. Doc. No.
9-1, ¶ 16. The Court finds these facts sufficient to state a claim that defendant had no
permissible purpose in obtaining the credit report.
Defendant also argues that the FCRA claim fails because plaintiff has not
sufficiently pled the willfulness of defendant’s actions. Plaintiff seeks statutory damages
in the amount of $5,000, plus actual damages, costs, attorney’s fees, and other relief.
Doc. No. 9-1, p. 6. Defendant notes that statutory damages are unavailable without a
showing of willfulness. Dowell v. Wells Fargo Bank, NA, 517 F.3d 1024, 1026-27 (8th
Cir. 2008). However, the Court notes that in nearly all the cases cited by defendant, the
courts were considering whether a factual showing of willfulness had been made at the
summary judgment stage, after completion of discovery. The Court finds that plaintiff
has sufficiently pled facts from which a reasonable inference could be made that
defendant’s actions were willful, and plaintiff is entitled to discovery on this issue.
Further, the Court finds that whether plaintiff has suffered actual damages is a question
that discovery should answer.

Defendant’s motion to dismiss the FCRA claim,

therefore, is DENIED.
B.

State Law claims

Plaintiff has asserted that defendant’s actions constitute a violation of plaintiff’s
right to privacy, as well as a violation of RSMo § 407.020 (the Missouri Merchandising
Practices Act, or “MMPA”).

Defendant correctly notes that 15 U.S.C. § 1681h(e)

preempts all claims in the nature of “invasion of privacy” related to information disclosed
to credit bureaus. Thus, any privacy related claim must be dismissed. Furthermore,

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defendant asserts that any remaining state court claims should be dismissed because
15 U.S.C. § 1681t(b)(1)(F) provides that “No requirement or prohibition may be imposed
under the laws of any State with respect to any subject matter regulated under Section
1681s-2. . . .” However, 15 U.S.C. § 1681s-2 appears to regulate improper furnishing of
information to consumer reporting agencies.

This case is not about improper

information being furnished to credit bureaus; instead, it is about an allegedly improper
request of a credit report.

Therefore, defendant cannot rely on 15 U.S.C. §

1681t(b)(1)(F) for preemption of plaintiff’s MMPA claim. Therefore, defendant’s motion
to dismiss state law claims is GRANTED insofar as defendant seeks dismissal of the
privacy claim, and DENIED as it relates to plaintiff’s MMPA claim.
IV.

Conclusion
Therefore, for the foregoing reasons, (1) Defendant’s motion to dismiss (Doc. No.

9) is GRANTED IN PART as it relates to plaintiff’s claim for invasion of privacy and
DENIED IN PART as to all other claims; and (2) Plaintiff’s motion for leave to file
amended complaint (Doc. No. 16) is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court send a copy of this order
via regular and certified mail to Plaintiff at the following address: Oaxaco El Bey, 2020
Cleveland Ave., Kansas City, MO 64127.
IT IS SO ORDERED.

Date: January 15, 2015
Kansas City, Missouri

/s/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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