KEITH v. ASSET MANAGEMENT PROFESSIONALS, LLC

Filing 5

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD on signed 3/28/2014. Plaintiff's Application to Proceed In Forma Pauperis (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDING that this action be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RONNIE KEITH,
Plaintiff,
v.
ASSET MANAGEMENT
PROFESSIONALS, LLC,
Defendant.

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1:14CV94

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on Plaintiff’s Application for Leave to Proceed In
Forma Pauperis (Docket Entry 1).

For the reasons that follow,

pauper

solely

status

will

be

granted

for

the

purpose

of

recommending dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B).
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953

(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).

“Dispensing with filing fees,

however, [is] not without its problems.

Parties proceeding under

the statute d[o] not face the same financial constraints as

ordinary litigants.

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).
To address this concern, the relevant statute provides, in
pertinent part, that “the [C]ourt shall dismiss the case at any
time if [it] determines that . . . the action . . . fails to state
a claim on which relief may be granted . . . .”
1915(e)(2).

28 U.S.C. §

A complaint falls short under this standard when it

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) (emphasis added) (internal
citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In other words, the applicable standard “demands
more

than

an

accusation.”
true

all

of

unadorned,

Id.

Moreover, “the tenet that a court must accept as

the

the-defendant-unlawfully-harmed-me

allegations

contained

inapplicable to legal conclusions.

in

a

complaint

is

Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Id.1

1

Although the Supreme Court has reiterated that “[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,”
(continued...)
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DISCUSSION
This case began with Plaintiff’s filing of a pro se Complaint
(Docket Entry 2), along with an Application for Leave to Proceed In
Forma Pauperis (“IFP Application”) (Docket Entry 1). The Complaint
describes itself as an “ORIGINAL COMPLAINT FOR VIOLATION OF THE
FCRA.”
sole

(Docket Entry 2 at 1; see also id. at 3-4 (setting forth

cause

of

action

under

the

Fair

Credit

Reporting

Act

(“FCRA”)).) Under the heading “GENERAL ALLEGATIONS,” the Complaint
alleges as follows:
7. Plaintiff obtained his consumer credit reports from
the three major credit reporting agencies and found
entries by entities that he was unfamiliar with in the
reports.
8. Plaintiff determined that his consumer credit report
had been obtained on various occasions by various
entities he did not recognize and without his consent.
9. Plaintiff found after examination of his Trans
Union[,] Equifax, and Experian consumer credit report
that Defendant ASSET MANAGEMENT PROFESSIONALS, LLC had

1

(...continued)
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and
quotation marks omitted), the United States Court of Appeals for
the Fourth Circuit has “not read Erickson to undermine Twombly’s
requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted) (applying Twombly in
dismissing pro se complaint); accord Atherton v. District of
Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A
pro se complaint . . . ‘must be held to less stringent standards
than formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (quoting
Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 679,
respectively)).
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obtained Plaintiffs [sic] Trans Union consumer credit
report in 11/2013.
10. [Defendant] stands liable for the actions taken in
[P]laintiffs [sic] report.
11. Discovery of violations brought forth herein occurred
in 12/2013 and are within the statute of limitations as
defined in FCRA, 15 U.S.C. § 1681p.
(Id. at 2.)2
Within
identifies

its

“REQUEST

FOR

(incompletely,

see

RELIEF”
15

section,

U.S.C.

§

the

Complaint

1681b(a)(3))

the

permissible purposes for obtaining a consumer’s credit report as
“if the consumer makes application for credit, makes application
for

employment,

for

underwriting

of

insurance

involving

the

consumer, or is offered a bona fide offer of credit as a result of
the inquiry.”

(Docket Entry 2 at 3.)

It then states:

18. Plaintiff has never had any business dealings or any
accounts with, made application for credit from, made
application for employment with, applied for insurance
from, or received a bona fide offer of credit from
[Defendant].
19. At no time did Plaintiff give his consent for
[Defendant] to acquire his consumer credit report from
any credit reporting agency.
20. In 02/2010 [Defendant] obtained the Trans Union
consumer credit report of [] Plaintiff with no

2

Plaintiff has filed a number of nearly identical
complaints. See Keith v. SST/Synovus, No. 1:14CV95 (Docket Entry
2); Keith v. AWA Corp, No. 1:14CV96 (Docket Entry 2); Keith v.
Midland Credit Mgmt., No. 1:14CV97 (Docket Entry 2); Keith v. The
Bureaus Inc, No. 1:14CV98 (Docket Entry 2); Keith v. Parson Bishop
Collection, No. 1:14CV99 (Docket Entry 2); Keith v. Asset Mgmt.
Prof’ls, LLC, No. 1:14CV100 (Docket Entry 2); Keith v. American
Educ. Servs., No. 1:14CV101 (Docket Entry 2).
-4-

permissible purpose in violation of the FCRA, 15 U.S.C.
§1681b.
(Id.)
In an attempt to determine, inter alia, if Plaintiff could
provide factual matter sufficient to support an inference that
Defendant did not have a “permissible purpose” for obtaining
Plaintiff’s

credit

report

under

the

FCRA,

the

undersigned

Magistrate Judge set this case for a hearing on Plaintiff’s instant
IFP Application. (See Docket Entry 4.) At said hearing, the Court
ordered Plaintiff to file an amended complaint by March 17, 2014,
detailing the facts surrounding his allegations and the specific
damages he suffered.

(See Docket Entry dated Feb. 24, 2014.)

To

date, Plaintiff has made no such filing. (See Docket Entries dated
Feb. 24, 2014, to present.)

Under these circumstances, the Court

should dismiss this case under Section 1915(e)(2)(B) for failure to
state a claim.

See, e.g., Iqbal, 556 U.S. at 678 (mandating that

plaintiffs provide “factual matter” to support claims and ruling
“legal conclusions” and “conclusory statements” insufficient).
Plaintiff’s Complaint purports to assert a claim under the
FCRA based on Defendant’s alleged obtaining of Plaintiff’s credit
report without a permissible purpose. (See Docket Entry 2 at 2-4.)
As factual matter supporting that assertion, the Complaint alleges
(as quoted above) that Plaintiff had no direct business dealings
with Defendant.

(Id. at 3.)

Such an allegation does not provide

a basis for concluding that Defendant lacked a permissible purpose
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in obtaining Plaintiff’s credit report.
specifically

describes

as

a

To the contrary, the FCRA

permissible

purpose

the

act

of

obtaining a credit report “to use the information in connection
with a credit transaction involving the consumer on whom the
information is to be furnished and involving the extension of
credit to, or review or collection of an account of, the consumer;
or

.

.

.

[because

of]

a

legitimate

business

need

for

the

information – (i) in connection with a business transaction that is
initiated

by

the

consumer;

or

(ii)

to

review

an

account

to

determine whether the consumer continues to meet the terms of the
account.”

15 U.S.C. § 1681b(a)(3) (emphasis added) (setting forth

grounds under which consumer reporting agency may release consumer
reports); see also 15 U.S.C. § 1681b(f) (prohibiting obtaining of
consumer reports except “for a purpose for which the consumer
report

is

authorized

to

be

furnished

under

this

section”).

Plaintiff’s factual allegations do not indicate that Defendant
lacked any of the emphasized permissible purposes for obtaining
Plaintiff’s credit report.
In other words, the fact that Plaintiff allegedly has not had
any direct dealings with Defendant fails to support an inference
that

Defendant

did

not

obtain

Plaintiff’s

credit

report

in

connection with a credit or other business transaction involving
Plaintiff and a third party who contracted with Defendant and/or in
connection with the review or collection on behalf of a third party

-6-

of an account Plaintiff had with that third party.

The Complaint

also lacks any indication that Plaintiff ever contacted Defendant
to ask why Defendant obtained Plaintiff’s credit report.
Docket Entry 2 at 1-4.)

(See

Moreover, Plaintiff’s IFP Application

acknowledges several service, credit, and insurance accounts (see
Docket Entry 1 at 3), as to which collection or other activity
could occur so as to give rise to permissible grounds to obtain his
credit report, see 15 U.S.C. § 1681b (a)(3)(A), (C), (E), and (F).
Finally,

the

Complaint

fails

to

allege

any

factual

matter

indicating that Defendant acted wilfully or that Plaintiff suffered
actual damages.
In

(See Docket Entry 2 at 1-4.)

several

recent

cases,

this

Court,

under

similar

circumstances, dismissed for failure to state a claim complaints
featuring such FCRA claims.
No.

1:12CV1097,

2013

WL

See, e.g., Golden v. NCO Fin. Sys.,
4519774

(M.D.N.C.

Aug.

26,

2013)

(unpublished), recommendation adopted, slip op. (M.D.N.C. Sept. 13,
2013)

(Schroeder,

J.);

James

v.

Paragon

Revenue

Grp.,

No.

1:12CV1371, 2013 WL 3243553 (M.D.N.C. June 26, 2013) (unpublished),
recommendation

adopted,

slip

op.

(M.D.N.C.

July

23,

2013)

(Schroeder, J.); King v. Equable, No. 1:12CV443, 2013 WL 2474377
(M.D.N.C. June 10, 2013) (unpublished) (Eagles, J.); accord Boston
v. Client Servs. of Mo., Inc., No. 3:13CV184, 2013 WL 5925902, at
*3 (W.D.N.C. Nov. 1, 2013) (unpublished).
occur here.

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The same result should

IT

IS

THEREFORE

ORDERED

that

Plaintiff’s

Application

to

Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 28, 2014

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