WALKER v. TRANS-UNION LLC et al

Filing 36

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 02/22/2013 as set out herein. RECOMMENDED that Defendant Trans Union's Motion to Dismiss [Doc. # 14 ] be DENIED as moot; that Defendant Equifax's Motion for Judgment on the Pleadings [Doc. # 26 ] be GRANTED; that Plaintiff's Motion to Get Experian Served [Doc. # 35 ] be DENIED as moot; that all claims against Defendant Experian be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii); and that this action be dismissed.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RUSSELL F. WALKER,
Plaintiff,
v.
TRANS-UNION LLC, EQUIFAX
INFORMATION SERVICES, INC., and
EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendants.

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1:11CV1110

MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This is an action filed pursuant to the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.A.
§§ 1681 - 1681x (West 2009 & Supp. 2012). Plaintiff Russell F. Walker is proceeding pro se and
in forma pauperis. (Order [Doc. #4].) Defendants are three credit reporting agencies, TransUnion LLC (“Trans Union”), Equifax Information Services Inc. (“Equifax”), and Experian
Information Solutions, Inc. (“Experian”). Plaintiff Walker has voluntarily dismissed Defendant
Trans Union from the case.1 (Stipulation of Dismissal with Prejudice [Doc. # 34].) Defendant
Equifax has filed a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil
Procedure 12(c) [Doc. #26]. Finally, Plaintiff has filed a “Motion to get Experian Information
Services, Inc. Served” [Doc. #35]. For the reasons that follow, the Court recommends that
Defendant Equifax’s Motion for Judgment on the Pleadings be granted, that all claims against

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The Motion to Dismiss filed by Defendant Trans Union [Doc. #14] prior to its dismissal from the case
is now moot and will be denied on that basis.

Defendant Experian be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim upon which relief may be granted, and that this action be dismissed. Plaintiff’s Motion
regarding service of Defendant Experian should be denied as moot.
I.

FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff alleges in his Amended Complaint2 that in December 2005 he suffered an attack

of atrial fibrillation while undergoing an employment physical for Raytheon Polar Services Co.
in Colorado. (Am. Compl. [Doc. #10] at 3.) The physician conducting the examination
“commanded” Plaintiff to go to the emergency department of the local hospital. (Id. at 3-4.)
Plaintiff did so and received treatment in Colorado. (Id. at 4.) When Plaintiff returned to his
home in North Carolina, he went to First Health of Pinehurst Hospital where he also received
treatment. (Id.) However, when Plaintiff found out 6 months later that he still had the
condition, he “threw all prescriptions in the waste basket and stopped seeing the local physician
in the local hospital because obviously they had no idea how to cure this problem.” (Id.)
Plaintiff contends that six accounts appearing on his credit report are connected to his
treatment for atrial fibrillation. (Id. at 5.) These accounts should be removed from his credit
file, Plaintiff argues, because he received “no benefit” from the treatment. (Id.) He contends
that if anyone is responsible for the charges stemming from his treatment in Colorado, it should
be Raytheon Polar Services. (Id.) Finally, Plaintiff contends that “[d]ue to a failed attempt to
obtain a mortgage” he “made a number of credit applications” that are “reflecting negatively”

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Docket #10 is the operative Amended Complaint. Plaintiff has unsuccessfully sought to file additional
amended complaints [Doc. # 21, #25] which have been stricken, but in those filings he is simply attempting to
change the name of the registered agent for service of process of a Defendant rather than make any substantive
change to his claims.

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on his credit report. Plaintiff contends that the multiple inquiries to his credit file should be
consolidated into a single inquiry. (Id. at 6.)
Plaintiff specifically states that he is not seeking monetary relief. (Id.) Rather, Plaintiff
seeks the removal of the six accounts referred to above from his credit files and seeks to have
the multiple requests for credit relating to his mortgage applications either removed or
consolidated into one request. (Id.) Plaintiff also asks for any other equitable relief that is
appropriate.
II.

DISCUSSION
The standard for granting judgment on the pleadings is the same as for granting a motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Burbach Broad. Co. v. Elkins
Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). In addition, the standard for granting a
dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as for
dismissal under Rule 12(b)(6). De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). A
plaintiff fails to state a claim upon which relief may be granted under Rule 12(b)(6) when the
complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Defendant Equifax argues that all claims against it in Plaintiff’s Amended Complaint
should be dismissed because Plaintiff seeks only injunctive relief which is barred by FCRA.
(Def. Equifax’s Memo. in Supp. [Doc. #27].) Most courts considering the issue conclude that
FCRA does not provide for injunctive or declaratory relief for individual plaintiffs. See

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Washington v. CSC Credit Servs., Inc., 199 F.3d 263 (5th Cir. 2000) (“We hold that the
affirmative grant of power to the [Federal Trade Commission] to pursue injunctive relief,
coupled with the absence of a similar grant to private litigants when they are expressly granted
the right to obtain damages and other relief, persuasively demonstrates that Congress vested the
power to obtain injunctive relief solely with the FTC.”); Domonoske v. Bank of Am., N.A., 705
F. Supp. 2d 515, 518-19 (W.D. Va. 2010) (noting problems with awarding private litigants
injunctive relief under FCRA in a proposed class action settlement because FCRA limits a
private individual’s remedies to damages and attorney’s fees); Bumgardner v. Lite Cellular, Inc.,
996 F. Supp. 525, 527 (E.D. Va. 1998) (acknowledging that two district courts had granted
injunctive relief under FCRA, but concluding that Congress’s failure to include injunctive relief
as a potential remedy in FCRA, combined with the express delegation of enforcement to the
FTC, “clearly indicates that Congress did not intend injunctive relief as a remedy”); Jarrett v.
Bank of Am., 421 F. Supp. 2d 1350, 1353 (D. Kan. 2006) (“Under the FCRA, only the Federal
Trade Commission can seek injunctive relief from a consumer reporting agency or reporter of
credit information. . . . Individual consumers are limited to the remedies provided under the
FCRA, i.e. damages and attorney fees.”); White v. First Am. Registry, Inc., 378 F. Supp. 2d 419,
423-24 (S.D.N.Y. 2005) (dismissing claims for declaratory and injunctive relief under FCRA).
The Fourth Circuit has not specifically addressed this issue, but in general terms the Fourth
Circuit has set out the possible forms of relief for an individual under FCRA, including damages
but not injunctive or declaratory relief. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
239-40 (4th Cir. 2009) (“The FCRA creates a private right of action allowing injured consumers

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to recover ‘any actual damages’ caused by negligent violations and both actual and punitive
damages for willful noncompliance.”). In the present case, in light of this authority and because
Plaintiff only seeks injunctive and declaratory relief, all claims in his Amended Complaint are
subject to dismissal.
Moreover, even if Plaintiff were seeking a form of relief that is available under FCRA,
his claims should nevertheless be dismissed because he fails to allege facts from which the Court
may infer that any Defendant violated FCRA. See Iqbal, 556 U.S. at 678. Congress enacted
FCRA to require that entities falling within its scope, such as consumer reporting agencies, adopt
reasonable procedures for maintaining the confidentiality, accuracy, and relevancy of
information they assemble and evaluate, as well as for ensuring the proper utilization of such
information. See 15 U.S.C. § 1681(b). Plaintiff fails to allege facts from which the Court may
infer that any Defendant violated a provision of the Act. Plaintiff does not dispute the accuracy
of the charges reflected in his six accounts, does not dispute the credit inquiries reflected in his
credit file, and does not allege that any Defendant failed to keep his credit information
confidential. Plaintiff’s complaint is that he received “no benefit” from the medical treatment
underlying the charges arising from his medical care. Plaintiff fails to explain how Defendants
are responsible for the alleged failure of his medical treatment or for reporting the unpaid
charges. Plaintiff also fails to allege facts from which the Court may infer that the Defendants’
treatment of the multiple credit inquiries related to Plaintiff’s attempt to secure a mortgage
violated FCRA. Therefore, the Court concludes that Plaintiff’s Amended Complaint fails to

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state a claim upon which relief may be granted under FCRA. Accordingly, all claims should be
dismissed.
III.

CONCLUSION
IT IS THEREFORE RECOMMENDED that Defendant Trans Union’s Motion to

Dismiss [Doc. #14] be DENIED as moot; that Defendant Equifax’s Motion for Judgment on
the Pleadings [Doc. #26] be GRANTED; that Plaintiff’s Motion to Get Experian Served [Doc.
#35] be DENIED as moot; that all claims against Defendant Experian be dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii); and that this action be dismissed.
This, the 22nd day of February, 2013.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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