GITTENS v. STERLING JEWELERS, INC.

Filing 17

MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 2/29/16. (nic, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DUANE GITTENS,
Plaintiff,
V.

Civ. No. 15-cv-5872 (KM)

MEMORANDUM OPINION

STERLING JEWELERS INC. d/b/a
KAY JEWELERS,
Defendant

KEVIN MCNULTY, U.S.D.J.:
Plaintiff Duane Gittens,

pro Se,

has filed a complaint that reads, in its

entirety, as follows:
I have brought this matter to the attention of the court because of
the defendant’s blatant disregard of the law and its continuous
illegal and damaging actions. I have disputed, in writing, the
continuous incorrect data being provided to Equifax, Experian and
Trans Union for about the last 9 months and have only been
attacked on my credit reports for it. They have altered dates and
re-aged the account as recently as July 23, 2015 so that my credit
score would drop. The information they report is totally false and I
would now like the court to bring this matter to the defendant’s
attention, I am seeking damages for the continuous violations of
the Fair Credit Reporting Act and the defamation of my character.
(ECF. No. 1) The defendant, Sterling Jewelers Inc. d/b/a Kay Jewelers (“Kay”)
moves to dismiss the complaint under Rule 12(b), Fed. R. Civ. P., for failure to
state a claim. The plaintiff has not responded to the motion. For the reasons
set forth below, the motion is granted, but without prejudice to the filing of an
amended complaint within 30 days.
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The defendant,

as the moving party, bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
Rule 12(b)(6) motion, a court must take the allegations of the complaint as true
and draw reasonable inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional
“reasonable inferences” principle not undermined by Twombly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp.

V.

Twombly, 550 U.S. 544, 555 (2007). Thus, the

complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “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) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard
is not akin to a ‘probability requirement’.

.

.

it asks for more than a sheer

possibility.” Iqbal, 556 U.S. at 678.
Where the plaintiff, like Gittens here, is proceeding pro

Se,

the complaint

is “to be liberally construed,” and, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pczrdus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se
status requires a court to construe the allegations in the complaint liberally, a
litigant is not absolved from complying with Twombly and the federal pleading
requirements merely because s/he proceeds pro se.” Thakar v. Tan, 372 F.
App’x 325, 328 (3d Cir. 2010) (citation omitted).
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I read the complaint liberally to assert two causes of action: (1) violation
of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§ 1681s—2(b), and (2)

defamation.
This action is brought against Kay, presumably on the theory that Kay
provided credit information to the credit rating agencies. I assume for purposes
of argument that there is some private right of action under the FCRA to
enforce the furnisher of credit information’s duty to investigate.’ If so, it is not
per se a direct action based on the acts of the furnisher alone, but rather rests
on the interplay between the furnisher and the credit reporting agency, which
occupies the central role. SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355,
358 (3d Cir. 2011); see Henderson v. Equable Ascent Financial, LLC, Case No.
1 1-3576, 2011 WL 5429631, at *3 (D.N.J. Nov. 4, 2011). A plaintiff who seeks
to assert such a claim must allege that he “(1) sent notice of disputed
information to a consumer reporting agency, (2) the consumer reporting agency
then notified the defendant furnisher of the dispute, and (3) the furnisher failed
to investigate and modify the inaccurate information.” Id. “The furnisher’s duty
to investigate is not triggered until it receives notice from the credit reporting
agency of the consumer’s dispute.” Id. (citing cases).
I find that, as in Henderson, this conclusory claim, containing few or no
facts, must be dismissed. It fails to allege facts from which a reader, even
construing the complaint liberally, could glean the essential elements of the
claim. The complaint does not say what the negative credit information
consisted of, or in what respect it was false. It states that Mr. Gittens disputed
it in writing, but it does not state that he notified the credit reporting agency,
1

Not every section of FCRA is enforceable by a private right of action:
IPlaintiff] cannot base his claim on 15 U.S.C. § 168 ls—2(a)(1)(A), because
no private right of action exists under that provision. See 15 U.S.C. §
168 ls—2(c), (d); Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057,
1059 (9th Cir.2002). Accordingly, we will affirm the District Court’s
dismissal of Huertas’s FCRA claim against AMP.

Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 34-35 (3d Cir. 2011).

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as required. See Soliz v. Client Services, Inc., Case No. 11-4210, 2011 WL
4343730, at *2 (D.N.J. Sept. 14, 2011) (dismissing FCRA claim where
consumer alleged he had notified the furnisher of information, but not the
credit agency, of the dispute). It does not state how, when, or to whom any
such report was made. In short, this complaint, even construed liberally, does
not rise above the sort of conclusions and labels found inadequate in Twombly
and Iqbal.
The necessary facts, assuming they exist, are not pled here. Taking into
account the plaintiff’s pro se status, I will permit him to file an amended
complaint.
I turn to the defamation claim. Such a claim, based solely on the alleged
violation of the FCRA, would generally be preempted. See Edwards v. Equable
Ascent, FNCL, LLC, Case No. 11-cv-2638, 2012 WL 1340123, at *7 (D.N.J. Apr.
16, 2012); Henderson, supra, at *5; Nonnenmacher v. Capital One, No. 101367, 2011 WL 1321710, at *3 (D.N.J. March 31, 2011); Burrell v. DFS
Services, LLC, 753 F. Supp. 2d 438, 451 (D.N.J. 2010). Recently, in Parker v.
Lehigh Cty. Domestic Relation Court, 621 F. App’x 125 (3d Cir. 2015), the Third
Circuit upheld such a dismissal, stating that there was nothing in the
complaint sufficient to indicate the kind of malice or intent that might
overcome preemption. Id. at 130 (citing 15 U.S.C.

§ 168 lh(e) preemption of

defamation regarding report to “consumer reporting agency

...

information furnished with malice or willful intent to injure”).
The defamation claim is therefore dismissed.

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except as to false

CONCLUSION
For the foregoing reasons, the motion to dismiss the complaint is
GPANTED WITHOUT PREJUDICE to the filing, within 30 days, of an amended
Complaint that remedies the deficiencies identified above. An appropriate order
will issue.
Dated:

February 29, 2016

KEVIN MCNULTY
United States District Judge

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