Evans v. First National Bank of Omaha

Filing 7

MEMORANDUM AND ORDER -Plaintiff shall have until July 14, 2011, to amend his complaint and clearly state a claim upon which relief may be granted against defendant, in accordance with this memorandum and order. If plaintiff fails to file an amended c omplaint, this matter will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that plaintiff files an amended complaint, plaintiff shall restate the allegations of the current complaint (Fi ling No. 1 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. ( Pro Se Case Management Deadline set for 7/14/2011 to check for amended complaint and dismiss if none filed ). Plaintiff shall keep the Court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MILTON EVANS,

)
)
Plaintiff,
)
)
v.
)
)
FIRST NATIONAL BANK OF OMAHA, )
)
Defendant.
)
______________________________)

8:11CV124

MEMORANDUM AND ORDER

Plaintiff filed his complaint in this matter on April
4, 2011 (Filing No. 1).

Plaintiff has previously been given

leave to proceed in forma pauperis (Filing No. 6).

The Court now

conducts an initial review of plaintiff’s claims to determine
whether summary dismissal is appropriate under 28 U.S.C. §
1915(e)(2).
I.

SUMMARY OF COMPLAINT
Plaintiff filed his complaint in this matter against

one defendant, First National Bank of Omaha (“FNB”) (Filing No. 1
at CM/ECF p. 1).

Plaintiff alleges that defendant willfully

and/or negligently violated multiple provisions of the Fair
Credit Reporting Act (“FCRA”) by accessing his credit report
without authorization.

(Id. at CM/ECF p. 3.)

Plaintiff alleges

defendant’s actions have caused him to suffer severe emotional
harm and mental distress.

(Id.)

Plaintiff requests a

declaratory judgment against FNB for their violation of the FCRA
and unspecified compensation for actual, statutory, and punitive

damages.

(Id.)

Plaintiff also alleges several state-law claims

such as “invasion of privacy,” defamation, and “intentional
misrepresentation.”
II.

(Id.)

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review in forma pauperis

complaints to determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e)(2).

The Court must dismiss a complaint

or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be
granted, or that seeks monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

A pro se plaintiff must set forth enough factual
allegations to “nudge[] their claims across the line from
conceivable to plausible,” or “their complaint must be dismissed”
for failing to state a claim upon which relief can be granted.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see
also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (“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.”).

Regardless of

whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to
state a claim.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

However, a pro se plaintiff’s allegations must be

construed liberally.

Burke v. North Dakota Dep’t of Corr. &

Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III. DISCUSSION OF CLAIMS
A.

FCRA Claims
The FCRA sets forth to whom any consumer reporting

agency may furnish a consumer report.

15 U.S.C. §1681b.

Pursuant to that provision, a consumer reporting agency may
furnish a consumer report to any person “it has reason to
believe . . . intends to use the information in connection with a
credit transaction involving the consumer,” or to review an
account of the consumer’s.

Id.

Reports may also be furnished to

persons which the consumer reporting agency has reason to believe
have a “legitimate business need” for the information in
connection with a business transaction that is initiated by the
consumer.

Id.

In addition, 15 U.S.C. § 1681o and 15 U.S.C. §

1681n provide civil causes of action to individuals whose credit
reports have been accessed in violation of the FCRA.

To set

forth a valid claim for willful noncompliance under 15 U.S.C. §
1681n, a plaintiff must show that an individual or entity
accessed his credit report “under false pretenses or knowingly
without a permissible purpose.”

Id.; see also Bakker v.

McKinnon, 152 F.3d 1007, 1013 (8th Cir. 1998) (“To show willful
noncompliance with the FCRA, [the plaintiff] must show that [the
defendant] knowingly and intentionally committed an act in

conscious disregard for the rights of others, but need not show
malice or evil motive.”) (quotations omitted).
Thus, in order to proceed with a claim against FNB
under the FCRA, plaintiff must allege that FNB accessed his
consumer information in violation of 15 U.S.C. §1681(b).

If

plaintiff had an account with FNB, initiated a credit transaction
with FNB, or FNB had a “legitimate business need” when it
accessed his credit report, there is no violation of the FCRA.
Plaintiff’s complaint fails to allege any facts supporting a
claim that FNB lacked any of these connections to plaintiff.
Further, in order to set forth a valid claim for willful
noncompliance under 15 U.S.C. § 1681(n), a plaintiff must show
that FNB accessed his credit report under false pretenses or
knowingly and without a permissible purpose.

Plaintiff has not

done so.
In short, the allegations currently before the Court
are insufficient to “nudge” plaintiff’s claims cross the line
from conceivable to plausible.

However, on its own motion, the

Court will grant plaintiff 30 days in which to amend his
complaint to sufficiently allege a claim against FNB.

Any

amended complaint shall restate the allegations of plaintiff’s
prior complaint (Filing No. 1) and any new allegations.

Failure

to consolidate all claims into one document will result in the
abandonment of claims.

If plaintiff fails to file an amended

complaint in accordance with this memorandum and order,

plaintiff’s complaint will be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
B.

State Law Claims
Liberally construing the complaint, plaintiff may also

have claims for violations of state law such as defamation and
“invasion of privacy.”

Pending amendment of the complaint as set

forth in this memorandum and order, the Court makes no finding
regarding its jurisdiction over any potential state law claims.
In the event that plaintiff fails to amend his complaint in
accordance with this memorandum and order, the Court will not
retain jurisdiction over any state law claims and those claims
will be dismissed without prejudice to reassertion in state
court.
IT IS ORDERED:
1.

Plaintiff shall have until July 14, 2011, to amend

his complaint and clearly state a claim upon which relief may be
granted against defendant, in accordance with this memorandum and
order.

If plaintiff fails to file an amended complaint, this

matter will be dismissed without further notice for failure to
state a claim upon which relief may be granted.
2.

In the event that plaintiff files an amended

complaint, plaintiff shall restate the allegations of the current
complaint (Filing No. 1) and any new allegations.

Failure to

consolidate all claims into one document may result in the
abandonment of claims.

3.

The clerk of the court is directed to set a pro se

case management deadline in this case using the following text:
Check for amended complaint on July 14, 2011, and dismiss if none
filed.
4.

Plaintiff shall keep the Court informed of his

current address at all times while this case is pending.

Failure

to do so may result in dismissal without further notice.
DATED this 21st day of June, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.